TABLE OF CONTENTSTABLE OF CONTENTSREGULATION OF CONSTRUCTION DEFECTS 1 CALENDAR OF EVENTS 2

PLAIN ENGLISH: THE BASICS 3 DISCOURSE, DECENCY AND PROFESSIONALISM 4PRESIDENT’S PAGE 5 PRO BONO PAGE 6 LAWYER ANNOUNCEMENTS 8

CLASSIFIED ADS 13

BOULDER COUNTY BAR NEWSLETTER

N O V E M B E R 2 0 1 2

From time to time a legislaturebecomes frustrated with the ineffi-ciencies of a particular area of lawand seeks to simplify and streamlinethe practice. Unfortunately, the legis-lature’s reform can sometimes renderthe situation more complicated thanit was before. Case in point,Colorado’s Construction DefectAction Reform Act (“CDARA”).Beginning in 1999 with an amend-ment to the Colorado ConsumerProtection Act,1 the Colorado GeneralAssembly has repeatedly addressedperceived needs to regulate the adju-dication of construction defect law-suits in Colorado. These statutes areprimarily codified at §§13-20-801, etseq., C.R.S. The legislative changesoccurred in four phases and,although enacted at different timesand covering different subjects, thesestatutes are now collectively referredto as “CDARA.” This article offers abrief overview of these statutes andtheir intended impact on construc-tion defect actions in Colorado.

A. CDARA I. The legislative processbegan with the Construction DefectAction Reform Act of 2001 (“CDARA

STATUTORY REGULATION OF CONSTRUCTION DEFECTS®BY KENNETH ROBINSON AND JOHN TWEEDY

I”). CDARA I required claimants inconstruction defect cases to file listsof defects within 60 days of the com-mencement of a suit or arbitration,and it limited construction defectcases to defects which cause “actualdamage,” defined as property dam-age or personal injury, or whichthreaten future personal injury.CDARA I also amended the statute oflimitations for indemnity and contri-bution claims against constructionprofessionals.

B. CDARA II. In 2003, the legisla-ture acted again, passing “CDARAII.” This statute created a new“Notice of Claim” process which hassignificantly altered constructiondefect practice. See § 13-20-803.5.CDARA II requires that a construc-tion defect claimant serve anyaccused construction professionalwith a Notice of Claim, identifyingthe alleged defects. The Notice (alsocommonly referred to as a “CDARAletter”) must be served by certifiedmail or personal service at least 75days before filing suit relating to res-idential property, or 90 days on aclaim relating to a commercial prop-

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4 ETHICS CREDITS

(continued on page 11)

erty. For 30 days after service of theNotice, the property owner must per-mit reasonable access to the propertyto inspect the alleged defects. Then,the defendant has another 30 days (45for commercial property) to provide awritten report concerning the inspec-tion, the scope of necessary repairs, anoffer to remedy the alleged defects orsettle the claim, and a proposedtimetable for the repairs or settlement.The property owner then has 15 daysto accept or reject the offer. If accept-ed, the settlement or repair is per-formed. If the offer is rejected, or if nooffer is made, the owner may thencommence a suit, or engage in media-tion if required. Because the proce-

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Thursday, November 1Natural Resources Law

Colorado River Cooperative AgreementPresenter: Glenn Porzak

Noon at Bryan Cave HRO1 CLE $20, $10 new/young lawyers

Lunch $11

Wednesday, November 7Boulder Interdisciplinary Committee

Mindfulness and Conflict Management

Presenter: Scott PeppetA Spice of Life Event

11:30 to 1:15 lunch and speakerRSVP the Friday prior to the

meeting. 720-232-4573

Thursday, November 8Intellectual Property

Patent Docket/Portfolio Management UsingUSPTO Patent Application Information

Retrieval SystemPresenter: Aaron Brodsky

Noon at Hutchinson Black and Cook1 CLE $20, $10 new/young lawyers

Lunch $11

Friday, November 9Availability of Legal Services

Noon brown bag lunchat BCLS in Louisville

Tuesday, November 13Employment and In-House Counsel

Following the employee grievance fromstart to finish; plus tips to avoid it in the

first place from the Corporate and Employee Perspective

Presenting Panel: Sarah Pritchard, HughPixler, Dipak Patel, Mark Wiletsky

Noon at Caplan and Earnest1 CLE $20, $10 new/young lawyers

Lunch $11

Wednesday, November, 14Family Law

Valuation of Professional Goodwill and Double Dipping

Presenters: Robert Lanham and Eric Critchfield

Noon brownbag in Courtroom N1 CLE $20, $10 new/young lawyers

Wednesday, November 14Solo/Small Firm Happy Hour

5 PM at Connor O’Neill’s in Boulder

Thursday, November 15Real Estate with Tax Estate Planning

Creditors and Predators: Protecting YourClient’s Interests in Real Estate

Presenter: David PerlickNoon at Caplan and Earnest

1 CLE $20, $10 new/young lawyersLunch $11

Thursday, November 15Bankruptcy Roundtable Lunch

Noon at Agave Bistro in Boulder

Friday, November 16Immigration Monthly Roundtable Discussion of Current Issues and

Workshopping Cases9 – 10 AM at the Broadway Suites Building

3rd Floor Conference Room

Tuesday, November 27Elder Law

Wills vs. Trusts: When to Use One and Not the Other

Presenter: Kevin MillardNoon at Caplan and Earnest

1 CLE $20, $10 for new/young lawyersLunch $11

Available in Longmont at Flanders ElsbergNash Herber & Dunn LLC

Call the Bar office if you plan to attend inLongmont 303-440-4758

Tuesday, November 27Business Law

Business Asset ProtectionPresenter: Barry Engle

Noon at Hutchinson Black and Cook1 CLE $20, $10 new/young lawyers

Lunch $11

Wednesday, Nov. 28Criminal Section

Making a Vivid Record: a presentation onhow to make a clear and descriptive record

for appeal.Presenters: Catherine Adkisson of the

Attorney General's office and Lisa Weisz,Law office of Lisa Weisz.

Noon in the "Garnett Conference Room",the 2nd floor of the Boulder Justice Center

1 CLE $20, $10 new/young lawyersLunch $10

Thursday, November 29Natural Resources Law and Real Estate Law

Anatomy of an Oil & Gas LeasePresenter: Peter Schaub

Noon at Bryan Cave HRO1 CLE $20, $10 for new/young lawyers

Lunch $11

CALENDAR OF EVENTSPre-registration is required for all BCBA CLE programs. Register by e-mailing lynne@boulder-bar.org, or

pay online with a credit card at www.boulder-bar.org/calendar.

NOVEMBER 20123

Do you remember drafting your firstComplaint? You found a sample fromanother case and copied the format.Your first paragraph probably lookedsomething like this:

COMES NOW the Plaintiff herein,John Smith, by and through his under-signed counsel and the law firm ofKirk, Spock, and McCoy, P.C., andpursuant to the Colorado Rules ofCivil Procedure, for his Complaintagainst the Defendant herein, MaryJones, states and alleges as follows:

That is 46 words.It is a fine example of “Legalese.” 1Why do so many lawyers write likethis? The reasons are many. Lawschools traditionally taught that law isa rigorous intellectual discipline andrequires a writing style to match.Some lawyers adopt a formal tone tosound authoritative. Others use bloat-ed language to delay a meaningfulresponse or action. A few intentionallywrite to confuse or mislead. Manylawyers mistakenly believe this styleimpresses clients, opposing counsel,and judges. And, let’s face it, Legaleseserves lawyers well because it befud-dles clients and makes them moredependent on us.

The plain English movement, some-times called the plain language move-ment, seeks to promote the use ofplain English over Legalese in busi-ness and law. Plain English is writingthat is clear, concise, and readilyunderstood by the target audience.The use of plain English lowers costs,improves productivity, increases cred-ibility and reduces misunderstand-ings.2

The fundamental purpose of any doc-ument is to convey information.Common sense suggests writing thatis clear, concise, and readily under-stood by its target audience is a wor-thy goal. Unfortunately, too manylawyers fill their documents withambiguities, double negatives, jargon,

lengthy sentences, massive para-graphs, needless words, passive voice,poor sentence structure, redundan-cies, distracting footnotes, sexist lan-guage, undefined terms and worthlessboilerplate.

There is no formula for the perfectdocument. There is no perfect docu-ment. But there are accepted princi-ples of good writing.3 There are alsomany techniques certain to make anydocument unnecessarily long andconfusing. No single article can iden-tify all the principles of plain English,but this article attempts to summarizesome of its most important tenets.

1. Think Before Writing. The mostimportant principle is to think aboutwhat you want to say before you startwriting. Pressed for time, too manylawyers just start typing or dictating,completely failing to think about whatthey want to say and how to say it in asensible order. Often one sentence orparagraph does not logically flowfrom the prior one. This causes confu-sion and reduces trust. Equallyimportant, by failing to really thinkabout what they want to say lawyersmay base conclusions on hiddenassumptions or faulty logic.

2. Omit unnecessary words. As arule, the quality of a document isinversely proportionate to its length.It took a long time to allow myself the

freedom to do this, but now when Idraft a Complaint, the first paragraphlooks like this:

Plaintiff alleges:That is 2 words rather than 46.Nothing more is needed. The captionidentifies the parties, their status asplaintiff or defendant, and the lawyeror firm filing the Complaint for thePlaintiff. The caption labels the docu-ment a “Complaint,” so a second ref-erence to that fact it not necessary.Reference to the Colorado Rules ofCivil Procedure is also unnecessary;we assume the Plaintiff relies on thoseif the Plaintiff files in a Coloradocourt.

3. Prefer simple words to complexwords. Which is better, prior to orbefore? Before is simpler – it is oneword rather than two and consumessix spaces instead of eight. Avoidhere-, there-, and where- words –words such as hereby, therein, andwherefore. And don’t even get mestarted on aforementioned or here-inafter.

4. Look for bloated phrases that canbe condensed. For example, ratherthan write notwithstanding the factthat, use although.

PLAIN ENGLISH: THE BASICSBY MARK COHEN

(continued on page 12)

NOVEMBER 20124

DISCOURSE, DECENCY AND PROFESSIONALISM: RAISING THE BARBY MARK LANGSTON

Far from inhibiting declarations anddefenses of positions, or, more impor-tantly, the exchanges of ideas necessaryto arrive at workable agreements, eti-quette is what makes all this possible.When insult and invective is what isexchanged, nothing gets accomplished.Judith Martin (“Miss Manners”).

It’s that time again…”ElectionSeason”. While we weather a virtu-al bombardment of political adver-tising, pandering and posturing bythose who want to sway our vote,we are provided little of any sub-stance, but rather are expected toexercise our franchise based uponthe effectiveness, or lack thereof, of

negative, often personal, attacks onthe candidates. Rather than addressthe issues, we are expected to ques-tion the intelligence, morality, faith,and even parentage of the “otherside”. Name-calling has become thenorm. It is not enough to simplyarticulate a differing view.Vilification of the opposition is stan-dard procedure.

Such abrasive methods and tacticsare not limited to the politicalprocess. We have unfortunatelycome to tolerate, accept, and evenpromote the rapid disappearance ofcivility and common decency inalmost every aspect of our lives. The

arts of communication, conversationand persuasion are being hijackedby the mindless convenience of inso-lence, impudence and disrespect. No one seems immune from thisepidemic slide down the low road torhetorical mediocrity. We are allregularly affronted not just by politi-cians, but by `journalists, athletes,corporate executives, co-workers,soccer moms and grocery clerkswho quickly submit to the tempta-tion to make their point, or advancetheir position, by verbally attacking,debasing or ridiculing those whohold different views.

As lawyers, and players in an intrin-sically adversarial process, we arevulnerable to not only being the tar-gets of such petty personal assaults,but to responding in kind. We mustdiligently resist participating in thegame that Washington, D.C., triallawyer Richard Beckler calls “moralannihilation,” in which you don’tjust disagree with your opponent, orskillfully demonstrate the fallibilityof his position; you try to destroyhim, and assert that his contraryposition makes him an evil person.

Most of us who have practiced lawfor any length of time know that,despite the current cultural appetitefor trash talking, mud-slinging, and“take no prisoners” attitudes, theability to be truly effective at makingyour point still requires making anhonest connection on a level thattranscends the superficiality of merecontentiousness. Your audience, beit judge, jury or opposing counsel,will reward you for points fairlyscored. As renowned Texas criminallawyer Richard “Racehorse” Hayneshas said: “Give me a ‘Rambo’ oppo-nent, and I’ll beat him in front of ajury. The American people don’t like

(continued on page 10)

5NOVEMBER 2012

PRESIDENT’S PAGEBY KEITH COLLINS

my thoughts inevitably drift to thequestion “Why bother?” I mean real-ly, why bother voting? No one isgoing to miss my vote. After feelingfed up with the entire process, I thenbegin to remind myself why I need tovote. I figured if I feel like this, thenmaybe some of you could use a peptalk as well.

Why vote? Because you can’t win ifyou don’t play. A vote is our voice. Ithis how we communicate what isimportant to us. It is how we tell our

Why Bother?I don’t know how the rest of the worldfeels, but for me, election season cannotend soon enough. It seems that everyother commercial on television is apolitical advertisement. Then there arethe radio ads, billboards, banners, yardsigns and bumper stickers. The amountof money that is spent in political adver-tising is mind-boggling and somewhatdepressing. It is disheartening to thinkabout all that could be accomplishedwith that money.

I am writing in an attempt to clear theair of all the rhetoric and to remind usall of the reason we vote and the valueof a democracy. I am writing this articlefor my own personal need as much asanything else. I find myself extremelyfrustrated with all of the negative adsand mudslinging that takes place rightbefore elections. It seems that the closerthe election gets the less the rules ofcivility apply and the candidates believethey are justified in saying whatever thesituation calls for, regardless of theveracity of their statements. There aretimes I literally feel insulted as a voter.

As I think about of all the things that Iwould like to say to the candidates andall the things I dislike about elections,

government what we believe needs tobe changed and what changes we dis-approve of. A vote is our say in howour tax money is spent, and the voicethat protects our civil liberties. Theheart of every democracy is the voiceof the people. The right to have ourvoices heard is a right that was bornthrough bloodshed during the War ofIndependence and has been valiantlyprotected every century since.

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(continued on page 7)

6 NOVEMBER 2012

Pro Bono Referrals

Eighteen cases were referred dur-ing September. Thank you to thefollowing attorneys:

Norm Aaronson – CULADPSusan BryantDeborah Cantrell – CULADPChristina EbnerKeith EdwardsKim GentJudson HiteConrad LattesAngela LittleCraig SmallBruce Wiener

Pro Se Program Volunteers

Mary Louise EdwardsJohn HoelleTucker KatzCraig SmallLeonard TanisKaren Trojanowski

BCAP Volunteers

There were no requests for probono assistance through theBoulder County AIDS Project inSeptember.

Pro Bono CornerInterested in a Pro Bono case?

Please call Erika at 303-449-2197.CLE credits available for pro bono service.

PRO BONO PAGE

Boulder County Bar AssociationProfessionalism Committee On-Call Schedule

November 5 Todd Stahly 303.797.2900

November 12 Anton Dworak 303.776.9900

November 19 Christie Coates 303.443.8524

November 26 Steve Meyrich 303.440.8238

Longmont Law Clinic will take place on November 13 from 5:30 - 7:30 PM. The clinic is held at the Longmont Senior Center, 910 Longs Peak Ave. It began in August and

was a huge success with 12 volunteer attorneys helping more than 80 clients.They are especially in need of attorneys who can help in tax, bankruptcy and worker’s comp areas.

Please call Susan Spaulding at 303.774.4384 to volunteer!

7

PRESIDENT’S PAGE (continued from page 5)

Elections rarely offer the perfectsolution. Voting does not guaranteeyou will get what you want, butchoosing not to vote absolutelydenies a person one of the funda-mental tools to having a say in ademocracy.

Why vote? To create change. TheXV Amendment provides that ones’vote shall not be denied on accountof race, color or previous conditionof servitude. Whether you are vot-ing to amend the constitution or tomodify the rules at your local HOA,change is the result of those whospoke out, joined forces andexpressed their opinions by voting.Thankfully, change no longer has tobe accomplished through insurrec-tion and bloodshed. Today is a timewhere each and every one of us has avoice that can be heard throughinstitutions such as town meetings,senate hearings and voting booths.

Why vote? Because we can. Therestill remains an alarming populationof the world that does not have theright to vote in a free legitimatedemocratic election. There arenumerous places where the govern-ment controls the press and there islittle or no opportunity for freespeech. Places where criticizingones’ government could land one injail or worse. Just two months ago, atrio of musicians were sentenced totwo years imprisonment in Russiafor what has been described as an“anti-Putin punk rant.” Millions ofindividuals around the world envyour freedom and long for the rightswe have and the right to have a sayin their government. The right tovote is an extraordinary privilegethat can easily be taken for grantedand we must safeguard against that.

Lastly, every vote counts. It is diffi-cult to believe that your vote willdecide an election of any sort, and

indeed it probably will not. Thepower of voting is in the masses. Itis the collective uniformity of ourvotes that reaches critical mass andcauses change. If we all don the atti-tude that our vote is too inconse-quential to matter then changewould never happen. We wouldnever be able to move forward as anation and we would essentially sur-render ourselves to the whims ofothers.

However, you never know whenyour vote may make the differenceand change history. Here are a fewfun facts I discovered where historywas altered by just a few votes. In1960, if just one person from eachvoting place had voted differently,Richard Nixon, not John F. Kennedywould have been elected president.In 1845 the U.S. Senate voted toinvite Texas to become a state. Thevote was 27-25 in favor. If one sena-tor had voted differently, resulting ina tie, Texas would not have beenasked to join the Union. Then twen-ty-two years later the decision not toremove President Andrew Johnsonfrom office was decided by one votein the U.S. Senate.

Change often happens out of desper-ation or inspiration. Some of youwill surely be vote outing of desper-ation, tired of the way things are and

desperate for change. For the rest ofyou, I hope this article gives you alittle motivation to get out there andbe heard.

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8 NOVEMBER 2012

The Boulder Shelter is encouraging the community to sup-port its winter sheltering program – a program that pro-vides safe shelter, warm beds, hot meals and supportiveservices to homeless men and women each year.

The Shelter is inviting individuals, companies,volunteergroups, and faith communities to adopt the Shelter for onewinter night, between October 15 and April 30, by giving atax-deductible gift of $487.

This gift will provide a warm, clean bed and two hot, nutri-tious meals for 160 men and women in need. In addition,you will be recognized as the Shelter sponsor for a partic-ular winter night of their choosing.

There are 212 nights in the winter sheltering season, andup to 160 homeless people will call the Shelter home eachof those nights. By filling up the calendar, $103,244 will beraised to help the Shelter provide much needed servicesfor the homeless in our community!

To reserve your night, contact CarolineGoosman; Caroline@BoulderShelter.org, 303-468-4326, or www.bouldershelter.org for additional information on the Adopt a NightProgram.

THANK YOU to the following for taking the lead andadopting nights at the Boulder Shelter for theHomeless.

Ruth Cornfeld Becker, LLC – 4/5/2012Lyons Gaddis Kahn and Hall – 11/11/2011 and11/12/2012;Colson Quinn Attorneys at Law – 2/14/2011,11/24/2011and 2/14/2012; Cooper, Tanis & Cohen, P.C. – 12/30/2011;Goff & Goff, LLC – 12/1/2011 and 12/1/2012Holland & Hart – 12/24/2011;Steve Cook & Associates – 3/1/2012e winner & associates – 4/10/2012;McElroy, Meyer, Walker & Condon, P.C.- 2/20/2012;Caplan & Earnest, LLC- 1/1/2012;St. Clair & Greschler, P.C. – 1/27/2012

BOULDER HOMELESS SHELTERNEEDS YOUR SUPPORT

NOVEMBER 2012 9

LAWYER ANNOUNCEMENTS

is pleased to announce that

Kimberly E. Lordhas joined the firm as Of Counsel

specializing in real estate transactions and land use.

The firm’s practice will continue to emphasize commercial real estate, development, land use,

corporate/transactional, general business counsel, tax and estate planning,

conservation, and intellectual property law.

Packard and Dierking, LLCWaterStreet

2595 Canyon Boulevard, Suite 200Boulder, Colorado 80302

Tel: (303) 447-0450 Fax: (303) 447-0451www.packarddierking.com

is pleased to announce that

Evan Branigan

has joined the firm as an Associate Attorney.

Evan is active in Colorado Bar Association

Family Law Section and the Minoru Yasui Inn of Court

315 W. South Boulder RoadLouisville, CO 80027

303.666.4468

www.dalejohnsonfamilylaw.com

The attorneys and staff of Dietze and Davis, P.C. are pleased to announce

the 40th Anniversary of the Firm

November 1, 1972 – November 1, 2012

2060 Broadway, Suite 400Boulder, Colorado 80302

(303) 447-1375www.dietzedavis.com

Peter C. DietzeRobyn W. Kube

Karl F. Kumli, IIIDavid J. ThrowerJoel C. Maguire

Renée EzerStephen A. Closky

Star L. Waring

Tucker M. KatzCare Enichen

Joshua E. AndersonMark D. Detsky

Of Counsel:Joel C. Davis

Carmen S. DanielsonNicholas G. Muller

NOVEMBER 201210

PROFESSIONALISM AND CIVILITY (continued from page 4)

dirty players, they don’t like crack-back blocking, and they don’t likepiling on. You’ve got to playbetween the lines to win, and I canbeat a dirty player every time.”Locally, the Boulder County BarAssociation’s ProfessionalismCommittee, a group of experiencedlawyers and judges, fields com-plaints about unprofessional con-duct on the part of members of thebar. The referrals come from oppos-ing counsel, parties, judges andclients, and range from complaintsabout unreturned phone calls toclaims of highly unprofessional oreven unethical conduct. The com-mittee has been very successful innot only reigning in lawyers wholose sight of what their role is in acase, but also in providing guidanceto lawyers about how to effectivelyand successfully fulfill their obliga-tions to the court and their clients

while maintaining the highest pro-fessional standards. I encourageyou to take advantage of thisresource if the need arises.We are fortunate to work in an hon-orable profession where we canmake a real difference, and we willall be more effective at what we doif we do it not only with superiorskill, but with decency, civility andgrace.

Mark Langston is a Criminal DefenseLawyer and a member of the BoulderCounty Bar AssociationProfessionalism Committee. (This article contains material previ-ously published by the author under thesame title).

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NOVEMBER 2012 11

dural requirements and timetablesof §803.5 are detailed and confusing,there is no substitute for close andrepeated reading of this statute as onenavigates the Notice of Claim process.

Under CDARA II, the Notice ofClaim process tolls the two-yearstatute of limitations for construc-tion defect actions, and the six-yearstatute of repose (both codified at§13-80-104, C.R.S.), and arguably, thethree-year statute of limitations forclaims of breach of contract orbreach of warranty (§13-80-101) until60 days after the process is complet-ed. §13-20-805. Such tolling beginswith the Notice of Claim itself.However, because the “process”may be lengthy and because thereare various possible paths it may fol-low, it is often unclear how long thistolling period may extend and whenit may be considered “completed.”

CDARA II also added a series of def-initions to the regulatory scheme, at§13-20-802.5, though the statute doesnot define the term “constructiondefect” itself. Rather, the sectiondefines who is a “construction pro-fessional” on whom a Notice ofClaim may be served. The listincludes architects, contractors, sub-contractors, developers, builders,builder-vendors, engineers, orinspectors, who furnish design,supervision, inspection, construc-tion, or observation of constructionof any improvement to real property.§13-20-802.5(4). Interestingly, thislist does not include materials suppliers

or vendors, such as window or shinglemanufacturers. Claims against suchsuppliers and manufacturers are notgoverned by CDARA, but rather bythe Uniform Commercial Code andother law. See Ranta Construction,Inc. v. Anderson, 190 P.3d 835 (Colo.App. 2008). Nevertheless, if a ven-dor also installs the supplied item,such installation work is governedby CDARA.

Perhaps for a related reason,requests for “ordinary warranty ser-vice” are also excluded fromCDARA’s Notice of Claim process. §13-20-807. However, claims forbreach of warranty are subject toCDARA, and an improper warrantyrepair can itself be a constructiondefect, triggering CDARA, if therepair is “essential and integral tothe function of the construction pro-ject.” See Smith v. Executive CustomHomes, Inc., 230 P.3d 1186 (Colo.2010).

Finally, CDARA II defines “actualdamages” as the lesser of (i) the fairmarket value of the property with-out the defect, or (ii) the replacementcost of the property, or (iii) the cost ofrepairs plus relocation costs and, forresidential property, loss of use andother fees or costs allowable by con-tract or law. §13-80-802.5(2). “Actualdamages” may also include bodilyinjury as provided by law. §13-20-806 limits a claimant’s recovery to“actual damages,” meaning no puni-tive damages, unless the claimantprevails on a claim under the

Colorado Consumer Protection Act(“CCPA”).2 Even then, if the defen-dant had made an offer during theNotice of Claim process that wasmore than 85% of the “actual dam-ages” found at trial, then punitivedamages are barred. If punitivedamages and/or attorney’s fees areawarded, they are limited to$250,000, and claims for bodilyinjury are not subject to punitivedamages.

C. HPA. The legislature next actedin 2007, passing the Homeowner’sProtection Act (“HPA”). HPA ren-ders void, as against public policy,any contractual provisions that pur-port, in advance, to waive or limit aresidential homeowner’s rights toseek redress for a construction defectunder CDARA or CCPA, includingany clause shortening the applicablestatute of limitations or repose. §13-20-806(7). HPA does not apply tocommercial contracts. Nor does thestatute preclude parties from waiv-ing or releasing claims as part of asettlement of a dispute or claim onceit has begun.

D. Construction ProfessionalLiability Insurance Act. Passed in2010, House Bill 1394 addressed thescope of defendants’ insurance cov-erage under Commercial GeneralLiability (“CGL”) policies for con-struction defects. §13-20-808.Passed in the wake of GeneralSecurity Indemnity Co. of Arizona v.Mountain States Mutual Casualty Co.,

REGULATION OF CONSTRUCTION DEFECTS (continued from page 1)

(continued on page 13)

NOVEMBER 201212

5. Watch out for “of.” One useful trickis to search for “of.” It often signifieswordiness. Rather than write, TheCourt previously advised theDefendant of the fact that there was nofactual basis for such an instruction,try: The Court previously advised theDefendant that there was no factualbasis for such an instruction.

6. Watch out for “that” and “which.”“That” and “which” are often unneces-sary. For example, the last sentence inparagraph 5 could be written: TheCourt previously advised theDefendant there was no factual basisfor such an instruction.

7. Use short sentences and paragraphs.Accepted readability formulas such asthe Flesch Reading Ease Scale relyheavily on sentence and paragraphlength. Try to keep your average sen-tence length to 20 or 25 words. A longsentence usually indicates you are try-ing to say too many things at once. Thesame applies to paragraphs; try to keepthe average number of sentences in aparagraph to five or six. 4

8. Prefer active voice to passive voice.In an active voice construction, the sub-ject of the sentence does something. Ina passive voice construction, somethingis done to the subject. The Courtdenied the Motion is active voice. TheMotion was denied by the Court is pas-sive voice. Active voice usuallyrequires fewer words and betterreflects the chronology of events. Ifyou have trouble spotting examples ofpassive voice, look for be-verbs (is, arewas or were) followed by a verb endingin –ed. For instance, The Motion wasdenied.

9. Avoid multiple negatives. Forexample, instead of No more than oneofficer may be in the courtroom as anadvisory witness, write, Only one offi-cer may be in the courtroom as an advi-sory witness.

10. Use verbs, not nominalization. Averb that has been converted to a noun

is called a “nominalization.” Forinstance, “Please state why you object,”becomes “Please make a statement asto why you are making an objection.”

11. Avoid redundant legal phrases.Phrase such as null and void or rest,residue, and remainder are unneces-sary. Many of these traditional phrasesare remnants from a time when legaldocuments needed to contain Latin,English, and French words to satisfy allparties to a transaction.

12. Avoid gaps between subject, verband object. Most sentences should fol-low the normal English word order:subject, verb, and then object (if any).Consider this example from RichardWydick’s Plain English for Lawyers:

The proposed statute gives to any per-son who suffers financial injury by rea-son of discrimination based on race,religion, sex, or physical handicap acause of action for treble damages.

There is a 21-word gap between theverb (gives) and the object (cause ofaction). One remedy is to make twosentences. Another is to move theintervening words to the end of thesentence:

The proposed statute gives a cause ofaction for treble damages to any personwho suffers financial injury because ofdiscrimination based on race, religion,sex, or physical handicap.

13. Use personal pronouns, especiallyin consumer documents. In consumerdocuments, consider making the con-sumer “you” and the organization“we.” That makes the document easierto read than one that uses “customer”and “company.”

14. Refer to people and companies byname. For example, rather than using“Lessor” and “Lessee,” use “Smith” forthe “Lessor” and “Jones” in place of“Lessee.”

15. When necessary, make a list.Sometimes the best way to present a setof conditions, or exceptions, or closelyrelated ideas is with an introductoryclause followed by a list.5

Legalese endures today for several rea-sons. Many cost-conscious clients aremore concerned with results than thequality of legal drafting. It is a paradoxthat a lawyer may be able to chargemore for a 40-page lease than for a 10-page lease, even though drafting the10-page lease required more time.

If you would like to learn more practi-cal skills to improve your ability totranslate Legalese into plain English,there are several good books availablefilled with helpful examples. They areLegal Writing in Plain English by BryanA. Garner and Plain English forLawyers (5th ed.) by Richard C.Wydick. In addition, the U.S. Securitiesand Exchange Commission created aPlain English Handbook that is avail-able free athttp://www.sec.gov/pdf/handbook.pdf

Mark Cohen is Chairperson of The ColoradoLawyer Board of Editors. He authored six articlesin the Am.Jur Proof of Fact series and is also theauthor of the Pepper Keane mystery series. Hispractice focuses on drafting and reviewing docu-ments, and litigating disputes that arise out ofpoorly drafted documents.

FOOTNOTES 1. Like “hard-core pornography,” you may not beable to define “Legalese” precisely, but you know itwhen you see it. See, Jacobellis v. Ohio, 378 U.S. 184(1964), concurrence of Justice Stewart.2. For a comprehensive list of the many studies con-

ducted on the benefits of plain English, see Kimble,Writing for Dollars, Writing to Please, CarolinaAcademic Press (2012) at Part 5.3. Contrary to what you learned in high school, it is

fine to begin a sentence with “But” or “And.”4. Microsoft Word’s grammar check function offers

the ability analyze the readability of any document.It tells you the number of words in the document, thenumber of characters, the number of paragraphs, andthe number of sentences. It provides the average sen-tences per paragraph, the average words per sen-tence, and the average number of character per word.It also provides the percentage of sentences thatemploy passive voice and tells you how the docu-ment scores on the Flesch Reading Ease Scale and theFlesch-Kincaid Grade Level Scale. There are also sim-ilar open source programs such as Abiword. 5. Reed Dickerson, The Fundamentals of LegalDrafting 115-24 (2nd ed. Little, Brown 1986)

PLAIN ENGLISH: THE BASICS (continued from page 3)

NOVEMBER 2012 13

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CLASSIFIED ADS

REGULATION OF CONSTRUCTION DEFECTS (continued from page 11)

205 P.3d 529 (Colo. App. 2009), a casethat adopted a narrow definition of theterm “accident” in CGL policies, thusrestricting the scope of coverage, H.B.1394 creates a presumption that a con-struction professional’s work thatresults in property damage, includingdamage to the work itself, is an “acci-dent” unless the damage was intendedor expected by the insured. Thestatute also directs courts to interpretinsurance policies according to the“reasonable expectations” of insureds,and places the burden of proof oninsurers to prove the applicability ofany exclusion or limitation on cover-age. Lastly, HB 1394 provides that aninsurer’s duty to defend a constructiondefect claim is triggered by a CDARANotice of Claim, requiring the insurerto investigate the claim and cooperatewith the Notice of Claim process.Previously, insurers typically wouldnot provide a defense until a lawsuithad been filed.

HB 1394 has been held not to applyretroactively to claims on insurancepolicies no longer in force at the timeof its enactment. However, inGreystone Construction, Inc. v. NationalFire & Marine Insurance Co., 661 F.3d

1272 (10th Cir. 2011), the Tenth CircuitCourt of Appeals disagreed withGeneral Security, holding that foresee-ability, not fortuity, is the defining char-acteristic of “accident” in a CGL policy,and that property damage caused byfaulty work was “accidental” if thedamage was not expected or intendedby the person performing the work.Greystone, if followed by the ColoradoSupreme Court, will bring judicialdecisions closer to H.B. 1394’s defini-tion of accident, regardless of when therelevant insurance policy was in force.

The above discussion reflects that con-struction defect litigation is inherentlycomplex and recent statutory revisionshave increased, rather than resolved,these complexities. The best defense tothese complexities, for both propertyowners and construction professionalsalike, is to have written contracts thatare appropriately tailored to the workbeing performed. Experienced con-struction counsel at the stage of con-tract formation is the best way to miti-gate unnecessary losses and costs aftera defect claim arises. Still, if a con-struction defect issue does arise, werecommend that you read the statutethoroughly and follow the general

guidelines and procedures discussedin this article.

For a more in depth analysis ofColorado construction defect litiga-tion, please see the full version ofthis paper, titled ColoradoConstruction Defect Litigation: MoreThan You Might Want To Know – ButShould!, on Robinson Tweedy, P.C.’sblog: http://www.rt-law.com/category/construction-law-fundamentals/).

FOOTNOTES1. § 6-1-113, C.R.S., limiting a builder’s exposureto treble damages to proven “bad faith” conduct.2. Commentators question whether punitive dam-ages can still be recovered post-CDARA. See, e.g.,Sullen, Sandgrund and Tuft, ResidentialConstruction Law in Colorado, p. 126 (3rd Ed.2011).

Ken Robinson and John Tweedy arepartners in the law firm of RobinsonTweedy P.C. in Boulder. John is the cur-rent co-chair of the BCBA ADR section.Chris Bosch is as associate at the firmand a co-chair of the BCBA CivilLitigation Section.

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