Denver Bar Association
October 2013
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Are You the Fastest Thumb in the West?

by Craig Eley



echnophiles who buy the latest, fastest, coolest electronic gadgets as soon as they become available are called "early adopters." Although these folks enjoy what they believe is a certain heightened status among their peer groups, early adopter status comes with significant risks. For example, the device may not have all the bugs worked out, it may not be compatible with other available technology, and there will almost certainly be a better, faster and cheaper version of it issued within a few months. Thus, early adopters are sometimes said to be on the "bleeding edge" of technology.

Lawyers tend not to be early adopters. They hang back, look at all the angles, and give some consideration to practicalities and economics before committing resources to a new technology. Unfortunately, a recent Court of Appeals decision may require certain attorneys to drastically change their ways, at least in respect to one area of electronic communication.

The case seemed typical enough —plaintiff sued defendant for injuries occurring on defendant’s property. Defendant eventually filed a motion for summary judgment with the trial court. While the motion was pending (the Court of Appeals judiciously doesn’t reveal for how long) in 2011, defendant filed an offer of settlement pursuant to C.R.S. §13-17-202. This statute provides that the offer to settle for a certain amount remains open for 14 days, unless terminated earlier by the offeror. If the offer is not accepted, and the offeree does less well at trial than the amount of the offer, then the offeree must pay the offeror’s post-offer litigation costs.

At 4 p.m. the day after the statutory offer to settle was made by defendant to plaintiff, the trial court judge granted defendant’s summary judgment motion. Although the Court of Appeals does not elaborate, the trial court presumably concluded that plaintiff’s cause of action had no legal basis.

Plaintiff’s attorney had elected to be notified of any court action through e-filing, while defense counsel chose U.S. mail. Thus, at 9 a.m. the following day, plaintiff’s attorney, having received electronic notice of the court’s decision, sent an acceptance of the settlement offer by e-filing. Two hours later, the defense attorney sent an e-mail withdrawing the settlement offer.

The trial court ruled that the summary judgment order did not act to terminate the settlement offer, and entered an order enforcing the settlement. Defendant appealed.

The Court of Appeals explained one of the arguments made by defendant:

Defendant maintains that allowing a party to accept a settlement offer after summary judgment has been entered promotes an inequitable "race to the courthouse," to be won by whoever learns of the order first. We recognize that whenever the trial court enters a significant pretrial order, such as a discovery order or a dispositive order, a "race to the courthouse" may ensue when parties wish to withdraw or accept a settlement offer because their perceived chances of succeeding at trial have changed.

As distasteful as a courthouse race may seem to 21st century litigators, the court held that the plain language of the statute permits it. Besides, the court pointed out,

Defendant willingly entered the race of which she now complains, and as the trial court observed, defense counsel placed himself at a significant disadvantage by declining to accept e-file notifications electronically, electing to receive them via regular mail instead.

The court ruled for the plaintiff, and the decision demonstrates that if you are going to get involved in a race to the courthouse, you better have access to the fastest means available to get you there.

Of course, such races are not confined to summary judgment situations. As the court noted, there are many turns of the tide before trial when the odds pile up (perhaps only temporarily) in favor of one party and against the other. And, since settlement offers are deemed to remain open for a reasonable period of time unless withdrawn or rejected, the circumstances experienced by this defendant could occur whenever a settlement offer has been made, even if it was not made pursuant to C.R.S. §13-17-202.

Also, simply participating in e-filing may not be enough to save your bacon. Suppose you are the attorney for a corporation suing a sneaky, traitorous ex-employee for violating a non-compete agreement. You come to work one day and read an e-mail from opposing counsel making a wholly inadequate offer to pay 50% of your client’s last demand. Rather than giving it the dignity of a reply, you go to a Rockies game to regain your serenity. While you are there, the Colorado Supreme Court issues a decision finding non-compete agreements to be void as against public policy.

Now, perhaps you have a service that zips all appellate court decisions to your office computer as soon as they are announced. If you’re not in your office, that doesn’t do you much good. If opposing counsel is in her office, you can bet that while you are enjoying sunshine and beer, she is sending you an e-mail withdrawing the settlement offer.

So, the answer is to get court decisions and emails on your cell phone. This will give you a fighting chance in the race to the courthouse regardless of where you may be. But how is the cell reception in Coors Field, Glenwood Caverns, or Death Valley?

Even if you have cell reception, how fast is it? How long will it take to download a day’s worth of appellate decisions? Should you upgrade to 4G, 5G, 6G? You’d better!

Finally, how are your texting skills? If you are of a certain age, those lawyers brought up on video games or who have been texting on small phones since they were teenagers are going to run circles around you. Before you can even type "We accept ..." with your thumbs on those tiny keys, you will have received a three paragraph withdrawal of the offer texted by your younger, more limber opponent.

The answer is to buy it all, and buy it now – the newest glasses with built-in computer monitor, the Dick Tracy e-mail watch, laptops, tablets, satellite service, a new smart phone every time an upgrade is available, and other gizmos that have not been dreamt of in your philosophy. And try to find a CLE somewhere entitled "It Pays to Increase Your Thumb Power."

Because on the information superhighway, can you afford to be the armadillo? D


Craig Eley may be criticized, chastised and humiliated at

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