Free Motion for Leave to File Excess Pages - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

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Filed 12/04/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a Municipal Corporation, Defendant.

EXPEDITED MOTION TO ENLARGE PAGE LIMIT APPLICABLE TO MOTION AND SUPPORTING BRIEF FOR NEW TRIAL BECAUSE OF ATTORNEY MISCONDUCT

Defendant, City and County of Denver, Colorado ("Denver"), by and through its counsel, moves the Court to issue ­ on an expedited basis ­ an order enlarging the page limit applicable to Denver's Motion and Supporting Brief for New Trial Because of Prejudicial Attorney Misconduct ("Rule 59(a) Motion"). An expedited order is need

because under Fed. R. Civ. P. 59, Denver's Motion must be filed on or before December 11, 2006. In support of this Motion, Denver states the following: D.C.COLO.LCivR 7.1 CERTIFICATION 1. In accordance with D.C.COLO.LCivR 7.1, Denver left a voice mail

message for Plaintiff's counsel, Mark E. Brennan, asking whether his client would agree to this Motion. On December 4, 2006, Brennan responded and stated that he wanted additional time to consider. Counsel for Denver told Brennan that this Motion needed to

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be filed today, and asked for a response by 2:00 p.m. As of the time of filing this Motion, Brennan had not responded. 2. The Practice Standards promulgated by this Court provide:

Except motions for summary judgment [see REB Civ. Practice Standard V.H.3.], all other motions, responses, and concomitant briefs shall not exceed fifteen (15) pages. Motions and briefs shall be combined. Replies shall not exceed ten (10) pages. These page limitations shall include the cover page, jurisdictional statement, statement of facts, procedural history, argument, authority, closing, signature block, and all other matters, except the certificate of service. For purposes of computing page limitations, a motion and separate brief shall be considered one paper. REB Civ. Practice Standard V.A.1. 3. Pursuant to Fed. R. Civ. P. 59(a) Denver intends to file the Rule 59(a)

Motion, seeking a new trial, because of the pervasive and prejudicial misconduct of Cadorna's counsel, Mark E. Brennan ("Brennan"). In the Rule 59(a) Motion, Denver will show that during the eight days of trial Brennan engaged in more than 80 separate acts of misconduct. Brennan's misconduct, the Rule 59(a) Motion will show, included ­ but certainly was not limited to ­ (a) arguing with the Court in the presence of the jury, leading to a citation for contempt; (b) disparaging and abusing opposing and non-party counsel; (c) making blatant appeals to the passion, prejudice, and sympathy of the jury; (d) making improper attorney testimonials; (f) obfuscating the record; (g) improperly questioning witnesses; and (h) continuing to question witnesses after objections by opposing counsel. Further, the Rule 59(a) Motion will show that a reasonable

probability exists that Brennan's omnipresent misconduct influenced the jury's verdict. 4. Denver certainly does not attempt to quote all 80 instances of misconduct

by Brennan. Nonetheless, to show the myriad of different types of misconduct, and to

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allow Denver to make the showing necessary for a new trial, Denver must, by necessity, quote extensively from the trial transcript in the Rule 59(a) Motion. And because some of the quoted portions of the transcript are lengthy, the Rule 59(a) Motion likewise must be lengthy. Denver anticipates that it needs an additional 20 pages ­ for a total of 35 pages in length ­ to address fully Brennan's misconduct and its prejudicial effect. ACCORDINGLY, Denver requests that the 15-page limit contained in the Court's Practice Standards be enlarged by 20 pages, and that the Court allow Denver to file a Rule 59(a) Motion that does not exceed 35 pages. Denver also respectfully requests the Court issue its decision on foregoing motion no later than December 10, 2006. Respectfully submitted this 4th day of December 2006. BROWNSTEIN HYATT & FARBER, P.C. By:____s/ Richard P. Barkley_________ Richard P. Barkley Hamid M. Khan Brownstein, Hyatt & Farber, P.C. 410 Seventeenth Street, Suite 2200 Denver, Colorado 80202 (303) 223-1100 [email protected] [email protected] Christopher Lujan, Esq. Assistant City Attorney, Employment Division City and County of Denver 201 West Colfax, Department 1108 Denver, Colorado 80202 [email protected] ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE (CM/ECF) The undersigned hereby certifies that on the 4TH day of December, 2006, a true and correct copy of the foregoing EXPEDITED MOTION TO ENLARGE PAGE LIMIT APPLICABLE TO MOTION AND SUPPORTING BRIEF FOR NEW TRIAL BECAUSE OF ATTORNEY MISCONDUCT was served via the CM/ECF system to the following: Mark E. Brennan, Esq. Mark E. Brennan, P.C. P.O. Box 2556 Centennial, Colorado 80161 Email: [email protected]

__s/_Melissa Brenneman___________ Melissa Brenneman

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