 I'm Sarah Levison and I'm here today to talk about the system, the legal system. I'm here with David Eason who's an attorney practicing for 41 years. Welcome David. My pleasure. Yep. I know a little bit about the legal system. I'm not a lawyer. This is really the first time we've had an on-air, on-camera discussion about it. So tell me what your view of the law is. That's a fairly broad topic. I think it's probably easiest for everyone if we try to make a concrete example of how the law works. Also to approach the system, as you put it, from the perspective and the introduction, if I can use that word, that most people would have, which is some sort of legal problem arises in their life and they have no choice and are compelled to confront the system. Most people see this in the form of, for example, a traffic problem, others in the form of a landlord-tenant problem. Of course, you're talking about a parent with kids, sometimes, you know, by getting a pack of gum and not paying for it in the store might be the first encounter that you have with your child has with the legal system. All those are distinctly different, though, how they're handled, right? There are commonalities to all of them, but yes, of course, there are differences. Another example would be domestic relations, divorce, dissolution, child custody, things like that. That is a different kettle of fish, so to speak. But most people would encounter it in one of the ways that we've broadly described here, and usually, in those situations, there's a party who has done something but hasn't really suffered any consequence or hasn't incurred any damage, and then someone else who has, at least as they perceive, incurred some damage or suffered some detriment. For example, an employee, somebody's been fired, they think unjustly, or there's some fracas in a local bar or a restaurant, somebody has shoved or hit somebody else. The person who's been fired, the person who's been hit, it will try to obtain some form of recourse, more or less informally, usually, hey, you shouldn't have fired me, you should rehire me, let's talk about it, I would like my position back, or hey, you shouldn't have shoved me or hit me, you should apologize, you should perhaps pay my bar tab or pay my dinner tab to make up for it. Or you encounter the local police officer and you're going 40 miles an hour in a school zone where it's been flashing 20 or speeding. Right, don't give me a ticket, or let me off this time, I've learned my lesson, I shouldn't have been doing it, I've got this distraction, etc. Usually, those things work, fortunately. Usually, people are reasonable enough to try to figure out a resolution and to avoid what they suspect will be a series of problems if, as we say, the thing goes legal. But sometimes that's... When you say go legal, you mean going in front of a judge or a formal proceeding? Yeah, formal legal mechanisms are then put into play. Somebody hires a lawyer, somebody else, the injured party hires a lawyer, the alleged wrongdoer hires a lawyer, the lawyers go back and forth, ideally, an effort is made to resolve the problem, again, in less formal ways, but if it can't be resolved, then on the civil side, somebody's going to have to sue the other person, and on, if assuming there's some criminal possibilities, somebody's going to have to either call the police or make a complaint, and the two processes will occur through various permutations as they go forward. It may be a situation where on the criminal side, the police, the district attorney, the city attorney say, look, we don't want to mess with this, it's not that big a deal, you have your civil remedies, proceed with them. It may be more important or more significant, and so criminal proceedings occur at the same time civil proceedings occur. It seems like that we can divide legal action into whether or not it's two individuals or the government bringing a case against an individual or a corporation. Those are two distinct categories and only two categories, right, in the law. You have government versus, you know, someone out in the community that's done something civil or criminal that is violating an actual statute, and then the other would be, you know, two individuals without the government involved necessarily except as the adjudicator. Is that kind of characterizing things? Networks is a basic dividing line. Obviously, there are many ways in which the two can get mixed up with one another. You know, there are many ways in which disputes can involve whole groups of people, class actions, large group litigation, mass torts, etc., etc., but yes, quite often disputes can be characterized or the attempt is made to characterize them as either private, you know, private entities, private people disputing something with one another almost always something to do with money or property, and then government, citizen, state, person having to do usually with criminal problems, regulatory problems, things of that nature. Well, civil litigation too, yeah. Right. So, you know, the disputants can be any number combination or character of people, but the system is designed to funnel them one of two ways or both ways, either through a criminal process, assuming there is potential criminal liability in the situation calls for that process to be involved, or, and quite often this is the case more so through the civil process, which involves courts, it involves arbitration, if there's a contract in play that contains an arbitration clause, and it's one of those two rows that people tend to go down. Well, and I see that a lot of times I know the city of Longland has a very robust mediation program that's not just a city employee mediating, but there's a team of people from the community that are trained mediators. I had a neighbor that was one of these lay, if you will, mediators did not have a law background, but it was a reasonable person and went through some kind of formal training, not like going to the community college to get a certificate in mediation, although there probably is that available kind of training, but to resolve maybe neighbor to neighbor disputes, you know, landlord-tenant disputes, and then, you know, if there was some other aspect the city staff would get involved as well, if there was some, you know, code violations and other aspects. So there's mediation and then the other process that I'm familiar with, which has resolved a lot of cases, and you touched on this, is many cases involve someone taking an action that injures property, personal injury, whatever. Another person and restitution can be in the form of something that's adjudicated, but the restorative justice, the idea of restorative justice robustly had been used in Longmont. Beverly Title started the restorative justice program in Longmont that's become somewhat of a national model. The court system does get involved. There are certain things that can be done through restorative justice. Even criminal felonies can be resolved. So do you see restorative justice as something that moves things forward in a legal way to give justice to people? Well, the short answer is yes. It depends on the case. But what you're pointing out is the system is constrained through the judicial process to a certain set of routine nice steps, rules, et cetera, that quite often constrain what judges can do and what the available remedies are. And quite often those available remedies and what judges can do are not very satisfactory to anybody. Are you talking about things like mandatory minimum sentences? I know that happened a lot with the waves of crime. You know, at the federal level, the Clinton administration, you know, three strikes you're out. That kind of constraints are even additional ones. Well, yeah, there are constraints that judges face in terms of fashioning remedies both on the criminal and on the civil side. And the point simply is that quite often those constraints are not satisfactory either to the complaining party or to the party against whom the complaint is being made. And what the system is set up to do is to divert those parties at various points in the process and offer them opportunities to take another route and see if another set of resolutions might work better. Mediation being one in the drug context, various types of diversion, and what you've pointed out, restorative justice in the criminal context and in some ways in civil terms. Well, in civil, you can do restorative justice as well. The idea there is to fashion a remedy that really is beyond or outside the strict control of the court and one that it likely does not have the authority to fashion for the parties. And so the parties engage in that discussion and then bring the court into it. And basically when they bring the court into it, it's for the judge or the legal system to give their blessing to that offshoot of a resolution. Right. Because if there's a pending case, either criminal or civil, you're going to have to deal with it one way or the other. You just can't let it hang there. So it needs to be resolved formally by the court in the form of some final judgment or some other form of resolution. It could be a dismissal of the case or a deferral of the case or other things. But the idea is if these less formal, more informal ways of resolving things work, then you go back to the court and say, okay, we've taken care of it. What we'd really like to do is dismiss the case or what we'd like to do is put the case in suspense for this period of time so that both parties are incentivized to conclude their deal or whatever other arrangement they've made, and then we can come back and dismiss the case. And if not, then you can retake the case and proceed as you would ordinarily. So the permutations within the process are almost infinite. They are largely constrained only by the willingness and imagination and resources of the people involved. And there are people who have very set ideas about how things should happen and that what they want to do is sue the SOB or however you want to put it. And that's the way it's going to happen. And no, I'm not going to mediate and I want a trial and blah, blah, blah. And people like me, attorneys, one of our tasks, at least ideally, is to try to slow things down and say, do you really want to do all of that? Or people, you know, we watch all of us watch law and order, daytime, you know, Judge Judy and all the other ones. A lot of people that are not trained lawyers look at those shows and think when you go into a courtroom where you see that's the, if you will, public depiction or the cultural depiction of the law, then, you know, and some of those shows do have a lot of, you know, conflicting elements in them about people making deals for horrendous things they've done and then you, you know, read about all these cases that get highlighted. And you really wonder what the nuts and bolts is if you happen to have an issue with the legal system and, you know, whether it's a, you know, a person to private parties or a government and a private party. How do things work? I mean, do you ever, did you ever have something, a case that was like law and order? You laugh because it is funny. It is funny. And it's also, also ironic. I mean, Judge Judy is far, far closer to reality in terms of what happens in a small claims type setting or a small referee type setting. Oh, that's interesting. I didn't know that. Okay. Yeah. Then, then law and order or Boston Legal or whatever the other shows are that deal with. And Boston Legal have will and shatner is. So that made it much great. But they address more complex situations and do so in a highly simplistic and artificial way. Well, the TV shows are artificial, but what happens in real life in, in those kind of municipal, I mean, would those be municipal court judges making those kind of decisions or when we see district court, there's the, you know, US district court, which is the federal court and district court in Colorado. Is that the state level court that's within counties? Can you explain that to me? Yeah. In the state court system and we'll speak specifically about Colorado, there are basically tiers of courts and their jurisdiction depends on the type of claim and the amount of money involved. So in small claims, it's a court that handles civil disputes, not criminal disputes. And it used to be that it would handle a dispute of value up to $5,000. I think that's been expanded to 10 or possibly $15,000 above the small claims court, which is actually a division of the county court. You then have the county court property. It handles proper, excuse me, it handles civil disputes again, but up to a higher dollar amount. And then above, or at least more general than the county court is the district court, which is a court of general jurisdiction. It can handle any case that's civil in nature. And it doesn't have that dollar amount associated with it? There is no dollar amount limit. Furthermore, if you don't want to be in small claims court, or you can't for some reason, you can go to the district court or you can go to the county court. If you don't want to be in the county court, you can go to the district court. It depends on your resources, your motives, what you think will work best for your problem, etc. How much you can afford for the lawyer? Correct. Although people as individuals can always represent themselves. Which is called pro se, right? That's in some cases perfectly okay. It works. There's not going to be a problem. It's more normal in small claims and county court settings. Judges are used to it. They are more adept at explaining things to a pro se litigant, party who's representing themselves. There's not an expectation if you have a civil dispute that's under $10,000. If you look at the return on investment of hiring an attorney, unless you're doing things just as you said, someone declares, I'm going to sue you. It's a addictive or a real personal dispute. It seems like it wouldn't make sense to hire somebody who's going to bill you $200 an hour, 50 hours or 10 hours on the case, whatever it would take. Yeah, likely not. And again, it's part of the lawyer's responsibility to explain these economies of scale to potential clients. And say you shouldn't be hiring an attorney. Well, yeah, there are situations. Do you refuse cases as a bread and butter attorney? Do you refuse cases saying? I have. I've told people, look, it used to be a rule of thumb that you could not take a case to trial in the district court, the Colorado district court, for less than $35,000. That's what it would cost. The legal, the attorney's fees? Attorneys fees, filing fees, fees that would be required to obtain discovery, to serve people, other expenses. You might need an expert witness. You might need other things, document management, all the rest of it. So there's sort of a rock bottom cost involved in a case that you would take into the district court unless you have ways of spreading that cost, unless the client has ways of internalizing that cost, or other things can be put into place. So naturally you would say, don't take a case into the district court unless you can't take it into the county court, and then unless the money involved, the property involved, or your values suggest that you're willing to pay that price. That's part of what a lawyer needs to do in consulting with a client about what to do about a dispute. Although lawyers do take cases on contingency fees. Yes, they do. You don't pay any. Well, I guess we see this commercial. Don't pay anything until your case is settled. That's slightly misleading. The client is always going to be on the hook for expenses for cost. Now the lawyer, if the client can demonstrate an inability to pay the cost, or that it would place undue hardship on the client, the lawyer can assume responsibility for the cost. Costs being filing fees, copy expense, service expense, things like that. Trying to get a police report and any other kind of documents. Yeah, one reason why those are substantial and tend to come more into play as you get farther along in time and currently is that the court system in Colorado is largely financed by filing fees. By filing fees. So for example, to file a complaint in the district court with a jury demand, if you want a jury, I think it's $450. But the insidious part, if I can put it that way, is that every time you file a paper, a motion, a notice, anything, that costs a minimum of $24. And it doesn't take long for a relatively small, compact case to start generating filing fees, well in excess of $1,000, $2,000. But those are filing fees really for county and state district court levels on the municipal level. It would seem that the impact of those fees. I know, for example, having reviewed and rubber stamped the budget request from the municipal judge when I was a city council member that they get a certain budget. And of course, there are some filing fees, but I don't think that the municipal level, they're that substantial. They're not that substantial. So is there a barrier because of the fees? Do you think there's a barrier to obtaining justice? I think there is. Average person with a bona fide problem that does not justify, lawyers who take matters on contingencies are looking primarily at the damages involved and the amounts involved. And can they justify putting in a lot of work to arrive at a settlement and or a judgment that will justify the time that they've put into the case? In an average civil case, a lawyer, if it goes all the way to trial, will likely put in hundreds, if not thousands of hours of work. So to take something on a contingency, a lot of lawyers need to be able to say, well, the minimum damage is involved or say $500,000 or a million dollars. Cases can be aggregated. And this happens all the time in the auto slash slip and fall slash, you know, normal personal injury type context. But outside that, if you're talking about an individual case, that's what you have to look at. And you also have to be able to bear the costs involved, the expert expense, but increasingly the filing fees. In Colorado, Article 2, Section 6 and 24 of the Constitution guarantee access to the courts as a matter of right. There is a point at which the cost of that access becomes, in my judgment, an unreasonable burden on the right of access. And I think we're approaching that. The courts should be... Well, how else would the courts be funded? Like with the, you know, the state legislature set aside maybe a budget for the courts or I know that gets into the political. I mean, judges are, you know, political appointees, I know, in some cases, but they're elected, you know, and retained by election many times, most all times. Well, they're appointed and then they're retained. And then they're retained. However, I could see that the state would, I don't know, if they just like they've done with so many things, they could say, well, you know, we'll go to the ballot since we've just had an election where, you know, the state's asked to keep some of people's Tabor refunds to fund this or that. Would that be an adequate way of saying, well, you know, we'll go to the ballot statewide and say, you know, we're going to look at this part of your Tabor refund and try to get the electorate to take a slice of that to fund the court system? Or is that a whole nother show? Well, that's... Yeah, there's a lot to talk about there. There is a problem in my judgment with Tabor in that it runs up against the U.S. constitutional guarantee of a Republican form of government and the state constitutional guarantee of a working court system. In my judgment, one element of the Constitution can't be used to kill other elements of the Constitution. There is a conflict there. The Colorado Supreme Court, I think, had an opportunity to get rid of Tabor on vagueness grounds. I've read Tabor, I don't know, 10, 15 times. I can't tell you what it means. It is an indecipherable mess. And there is a due process problem there that, you know, law has to be understandable to a person of average intelligence. Now, even assuming I'm not 10 or 15 goes at it, I should be able to understand it. I don't understand it. It speaks in highly cryptic terms. So there's that problem. But it was written by lawyers that it was probably designed to be that way. It was written by Doug Bruce. Doug Bruce might have pretended to be a lawyer, but he... He never did get a lot. Does he have a lot to be? No, I don't think so. But leaving that personality issue aside, there is a problem with Tabor's functioning within a constitutional structure is what I'm saying. And within a structure that guarantees, as I said, access to the courts, one provision of the Constitution can't kill off another provision of the Constitution. There has to be a prioritization and there has to be a reinterpretation of that one provision such that it is not irrevocably hostile to the other provisions. So that's sort of the macro picture. So we should throw Tabor out as a possible source of funding for the court system. Do we look at the legislature? Well, I think the legislature has the responsibility ultimately. But I also think the profession does. Lawyers have to pay to be licensed. You can't just get a license to practice law. How much is that annual fee for a license? $325. It could be significantly higher. Could be $1,000. Could be a lot higher. And you could write that off as your tax on your taxes. No, it's an expensive business. But beyond that, lawyers are officers of the court, meaning the court has control over you. Now, back in the old days, actually pretty much around the time I started practicing, but I think more so prior to that, judges would contact lawyers and say, I've got a case. This party's unrepresented. It's not working very well. I'm appointing you to act for this person. And you had no choice about that. That was a directive from the court. And so you took the case? You would have to take the case. And could you do any billing at that point? No, you were appointed to represent the person. Now, the court, if the person had some wherewithal and could pay some money, I suppose the court would agree to that. But quite often it was the case that, no, you're appointed as counsel for this person. You will represent this person through trial. And that's that. And I don't want to hear about it again. And if you were smart, you took it and you did your work? Yes. I don't think people have... You don't talk back to the judges? You didn't have any choice as the bottom line. Now, that happened to me once or twice, more in the federal courts than otherwise. And it was fine. It wasn't an undue burden. I could do it. And I was pleased to do it because lawyers, at least who do litigation, and I'm talking about both civil and criminal, make their living off the system. And they owe the system something for that. Pro bono work is a cost that you bear. As part of your profession. As part of your profession and as part of your access to the system. Lawyers have a privileged position in the system. We stand before the court. We enter the court. We go through the bar. We're admitted to the bar. Not everybody can do that. Now, if you're a party and you can act pro se, that's fine. But nobody else can do that. So we owe the court something. And I can guarantee you that if the chief judge of the Denver district court started calling people like Norman Brownstein. Hey, you're appointed to handle this case. I don't want to hear anything about it. Frankly, if you disobey my order, you're going to be held in contempt and that's going to cause all sorts of problems for you. Those people would immediately be on the phone to somebody saying, what the hell is this? I don't have time to do this. Why can't we more adequately fund whatever is necessary? And there would be a solution. The fact is the profession has been allowed to skate on this for quite some time. You're not going to be very popular saying this. I don't care. It's not a popular contest. There's been various ways to skirt lawyers' obligations to provide pro bono services throughout my career. Koltaf was and continues to be an effort to do that. The idea is that you get money into your trust account. The interest is harvested and used to provide pro bono services or to provide grant money to people who do legal work or work with disadvantaged people. All of which is great. That's all very necessary. But at the end of the day, what is happening is lawyers are using their client's money to avoid doing pro bono work. That's not right. When you and I had a conversation before going on camera last week, we talked about how the impact that the law has on you and a case depends on a couple of things. How much money you have, who you are, and that could be social class, and the color of your skin. Or your gender. Or your gender. And so I think we've skated through a lot of content. And in future programs, I would really like to dive into this funding issue and your ideas around that. Pro bono, pro say. We had a lot of work to do here on camera. So David, I really appreciate having our conversation today. Sure. Thanks. Thank you for joining us. I'm Sarah Levison. We'll see you next time.