Monday, November 29, 2010

Motions to Dismiss

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is an overview of filing motions to dismiss in Colorado and Federal courts--where the governing rules and procedures are similar, these checklists will focus on motions in Colorado state court and will not significant differences for filings in Federal court.  As each of the following checklists are completed, I will link to them from the text below.
C.R.C.P. 12(b) provides the legal basis for motions to dismiss.  A motion to dismiss may be filed for several reasons, and against several types of claims--each with their own checklist below.
Motion to Dismiss Checklists
- Rule 12(b)(1) - Motion to Dismiss for Lack of Subject Matter Jurisdiction
- Rule 12(b)(2) - Motion to Dismiss for Lack of Personal Jurisdiction
- Rule 12(b)(3) & (4) - Motion to Dismiss due to Insufficiency of Process or Insufficiency of Service
- Rule 12(b)(5) - Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted
- Rule 12(b)(6) - Motion to Dismiss for Failure to Join a Party Under Rule 19
- Special Considerations:  Motion to Dismiss Counterclaim or Crossclaim
Other Related Motions:
- Rule 12(e) Motion for More Definite Statement
- Rule 12(f) Motion to Strike
- Motion for Judgment on the Pleadings

Best Practices

- In Colorado, if a motion to dismiss is granted that dismisses the entirety of an action brought by one party containing claims in tort, then an award of attorneys' fees is mandatory pursuant to C.R.S. § 13-17-201.  An award of attorneys fees is mandatory whenever all claims by one part against another are dismissed, even if other claims remain unresolved.  See Stauffer v. Stegemann, 165 P.3d 719 (Colo. App. 2006).
- Always consider the value of dismissing certain claims--for example, even if a complaint's lone tort claim is vulnerable to a motion to dismiss, is it more valuable to keep the claim alive for purposes of insurance coverage issues?
- In responding to a Motion to Dismiss, consider whether it is wiser to voluntarily dismiss the claims without prejudice to avoid a mandatory award of attorneys fees, fix the deficiencies in the complaint highlighted by the motion to dismiss, and refile.  Always consider statute of limitation issues and other potential bars to re-filing.
- While most courts will write their own order addressing a motion to dismiss, it is still wise to file a simple and direct proposed order with the motion (or response in opposition).
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit for more information.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

Wednesday, November 24, 2010

The Future of the Legal Industry?

Jordan Furlong has an excellent take of the future of the legal industry in his latest post, The Law Firm of the Future:  Thompson Reuters.  I think his analysis will prove prescient for large and mid-size law firms over the coming decade.  Big firms that aren't on top of this trend (or small firms that try to emulate their business model) are in the process of pricing themselves out of the market.

More importantly, though, firms of ALL sizes simply can't ignore concepts like open-source development, flat networks, geoarbitrage, and process automation any longer.  In my mind, one of the most interesting and promising areas for change in the legal profession (and economy in general) will be the rise of ad hoc, networked providers of legal services--I won't call them "firms" because they meet neither the legal ethics nor classical economic of such.  In fact (perhaps this shows where my mind is, as I'm about to file a complaint along these lines), the most analogous legal structure is probably the RICO "enterprise-in-fact"--but I digress.

I've long found this area of thought fascinating.  Many people who know about the full range of my personal interests have often wondered how my interest in organizational theory, self-sufficiency, networked economies, consciousness/emergence theory, etc. will come together into my legal practice.  Here's my answer (which may also provide more insight into why I chose to start a solo litigation practice):  we have reached a bifurcation point in the legal profession, with one path diverging to large corporate structures--much like in modern accounting--that will "optimize" the human element (i.e. pay as little as possible for as much work as possible where labor is cheapest), and the other path diverging to well-connected individuals who can leverage personal attention, innovation, and access to the large legal/LPO/professional services corporations of the other path to deliver exceptional service to clients.  This second path is where I think humans (as opposed to stock markets) will find personal and professional fulfillment.  This second path is also far more adaptable to the rapidly changing and multifaceted end needs of the legal consumer.

This, I believe, will define the structure of the legal industry in the coming few decades:  agile, networked professionals--individuals capable of assembling into ad hoc firms, rather than firms composed of individuals--will leverage access to more rigid and powerful LPO structures to provide millions of tailored legal solutions to clients.  Contrast this with present-day "firms" that will gradually fade, some begin absorbed into the large, corporate LPO-structures (with commensurate decline in the fulfillment of their component individual attorneys), and others that will voluntarily dissolve into networks nimble enough to prosper.

What path will your firm/career take?  Or, if you're a client of legal services (and everyone is, they just often don't realize how important their consumption of legal services in one form or another is to their lives),  how much longer will you put up with the bloated, inefficient, and overpriced services offered by traditional firm structures?