- Gilbert M. Román will become chief judge of the 22-member Colorado Court of Appeals in January and will be the first Latino in the position.
- He has been a judge on the state's intermediate appellate court since 2005 and is currently the deputy chief for retiring Chief Judge Steve Bernard.
- Prior to joining the court, Román worked in private practice, focusing on complex civil litigation, employment law and alternative dispute resolution.
- He has served as an instructor for multiple programs, including Colorado's New Judge Orientation, the National Judicial College and at the University of Denver's law school.
Colorado Politics: People can probably understand the essence of what Court of Appeals judges do — they hear appeals of cases. But it's probably not apparent what the chief judge's role is. Can you walk me through how the chief judge is different from the court's other 21 members?
Román: We all decide opinions, so as chief judge I would continue to decide opinions, but not as much as I did as an active judge. As the chief judge, I would have a lot more of the administrative responsibilities of the court.
There are 110 folks that I’m going to be responsible for on the court, coming from different groups. There are the 22 active judges, but we also have staff attorneys (24 of them), including motions and jurisdiction attorneys; we have two reporters [editors]; we have 44 law clerks; and, we also have senior judges. Part of being the chief is getting with and responding to all of those various groups and individuals.
There are also duties that go beyond the court. For instance, I will chair the appellate rules committee and sit on the civil rules committee. I’ll be involved with the court services committee.
CP: You are currently the deputy chief judge. Can you tell me about that position and how long it has existed?
Román: The deputy chief judge position is completely at the discretion of the chief judge. It’s really a newer position. To my knowledge, for decades there was no deputy chief. Former Chief Judge [Janice B.] Davidson selected a deputy, and Alan Loeb did behind her. Then Chief Judge Steve Bernard expanded the role and had me more involved in some of the policymaking, serving as a sounding board.
CP: Will you continue to have that position in place, and if so, will that person do anything differently than what you are doing?
Román: I am going to continue that position. I selected Judge Rebecca Freyre to serve as my deputy, and she will have the same kinds of responsibilities that I have.
CP: Will there be a term for the deputy chief similar to the four-year term that the new chief judge has?
Román: Yes, in the sense that whoever is the next chief will select his or her deputy chief. But I plan to have Judge Freyre as my deputy during my term.
CP: You've been on the Court of Appeals for a decade and a half now. Can you describe some of the big changes that you can recall?
Román: The biggest one that comes to mind is the courthouse itself. When I first came to the court there were only 16 of us. Now there are 22. And the older building was small, cramped and we had outgrown it. We went over to The Denver Post building for a few years because they were building on the same spot. So, when we returned, we got the Ralph Carr Courthouse, which is an amazing, beautiful courthouse. Judges come in from all over the country and they tour it.
CP: You mentioned the increase in the size of the court. After 2024, Colorado will have a 23rd Judicial District covering Douglas, Elbert and Lincoln counties, and I believe you will also have a 23rd member of the Court of Appeals. Will this be a major development?
Román: Well, we will still have 22 members of the court. We are participating, in 2023, in a weighted caseload study. They use that to determine the need [for more judges]. What they've done in the past is bring in three new judges and staff all at once.
But we don't know until we see what the study shows. Everybody on the court tracks their time, then a report is presented to the General Assembly with a recommendation for whether to create new judges.
CP: So, what you're saying is that in 2025, we could have 23 judicial districts in Colorado, but still have 22 members or potentially 25 members of the Court of Appeals.
Román: Based on how it's done in the past, that's right. We are a docket-heavy court. We have at least 1,600 or 1,700 opinions per year. Every judge on the court is writing about 65 to 75 opinions per year.
It's important to remember that we sit on panels of three, so we're also responsible for reading the cases our panel colleagues are involved in, plus reading the relevant record and caselaw. So, on average, every judge has around 200 opinions per year at the Court of Appeals that they're involved with.
CP: Has that gone up during your time there?
Román: It's gone down, actually. When I started, it was closer to 90 opinions per judge.
CP: With that kind of volume, I'm curious how you train yourself as an appellate judge to avoid treating the job like an assembly line where you input a set of facts, look at it through the law, write your conclusion and move on. That seems to risk the possibility of forgetting that each of these cases is very important to the people involved and there are folks whose lives, liberty and property are on the line. How do you not lose sight of the human element involved?
Román: The human element is critical. Our court would go to the state penitentiary and tour it every year prior to the pandemic. My takeaway was to remember that every decision we make is important to somebody so we can’t treat them like an assembly line.
CP: Are you seeing more types of particular cases in 2021 than you encountered when you first got on the court?
Román: Dependency and neglect [child welfare] cases have gone way up. A better organized bar for parents is one of the leading factors. There’s more of a focus from the General Assembly on paying attention to that area, and compensating attorneys more who practice in that area, which affects their willingness to participate. All of that has led to a groundswell of dependency and neglect cases.
While there are multiple reasons for this increase over time, the biggest reason is probably the creation of the Office of Respondent Parents’ Counsel [which represents indigent parents].
It’s not an easy area of law. We’re lucky enough to have a staff attorney who specializes in dependency and neglect cases. We make the decisions, but they do first drafts of opinions.
That goes to one of the earlier questions about how we can put out as many opinions as we do in a year. The truth is, we're very lucky to have an extremely talented staff attorney group that drafts first opinions in their areas, and talented law clerks.
CP: Most people are familiar probably with the Supreme Court's style of people showing up to argue cases and take questions from the justices. That is some of what the Court of Appeals does, but a lot of cases get decided on the briefs, meaning the written arguments about the case are the deciding factor. Is there a rule of thumb for which cases get argued in person? Do you think it matters to the outcome whether you have an oral argument in a case or not?
Román: The decision is the attorneys' for whether or not to have oral argument. Most of the attorneys have not asked for oral argument. For the second part of the question, I would say that most cases are decided on the briefs, however, there are always cases that are decided at oral argument. That’s what makes it such an important part of what we do and why I encourage attorneys to request it.
We [the judges] do request oral argument. We'll also request the time for oral arguments be expanded and we'll send out pre-argument questions on some of the more complex cases where we're concerned about something in particular. It's to let the attorneys know we're interested in these issues, so when you come to oral argument, please be prepared. Or maybe it’s an area where we felt the briefing could have been a little stronger because they have word limits. Maybe they spent less time on that part of the briefing, but when we read it, we were interested in the part where they didn't spend as much time.
CP: There are two types of appellate opinions: published and unpublished. Published opinions have value as precedent, while unpublished ones only bind the parties in the immediate case. It's my understanding that published opinions are called that because they would, at one point, go into a physical printed book as caselaw for lawyers and judges to look at. But in the year 2021 where virtually everything is online, do you think it's time to do away with the concept of unpublished opinions?
Román: That's an issue that comes up in front of my court from time to time. We have not reached that decision yet, but we’re fully cognizant of the issue.
The strongest argument for making a change is that it’s coming, it’s inevitable. Other courts across the country are doing it. Even the non-published opinions are out there in some form right now, and someday they’ll just be accessible.
The argument in the other direction is we value the precedential value of the published opinions. As I mentioned, each judge has 200 opinions that go out per year with his or her name on them. Many of our colleagues will have to make adjustments if they believe that everything has to have the same level of what’s required for the published opinions, which means length, procedural history and background of the case.
Also, the full court has to become involved because there is a rule that requires a vote on any case that is up for publication. A majority of the court has to approve that. For published cases, we have to go through the additional step of reviewing our colleagues' proposed opinions, commenting on them and voting on whether or not to publish.
If the future is that's what's required of all cases — remember, there are 1,600 to 1,700 opinions per year — the argument is that would take a great deal.
CP: Is there a middle ground that unpublished opinions still exist in concept, but they go into a database where anyone can look up how a case was decided, use it for research or just have it as another accountability tool for the judiciary?
Román: I surely see that as a possibility. I do know that some of the specialty bars are already collecting the opinions that come out every Thursday and creating their own files for members to look at.
For access to justice, that's not true for every attorney, for every practice.
It's a little complicated because technology is also a key factor. I'm not sure we've always had the technological capabilities. When we reach that point, the judges on the Court of Appeals would make that decision unless the Supreme Court were to make it for us.
CP: Are there certain initiatives you imagine you'll want to undertake as chief judge?
Román: Sure. My initiatives would include reducing the delays and the backlog that we have in child welfare appeals and criminal appeals. I formed a retreat committee, and in February, we’ll have a daylong retreat with a subcommittee of judges that are focused on reducing the backlog.
Succession planning is an issue. Our productivity and our written product is what we’re hired to do and getting opinions out. We have some major leadership retirements in 2024: our clerk of the court, our court executive, deputy clerk and chief staff attorney have all announced that they're leaving close together. That involves our ability to get the opinions out once they’re written.
The culture of the court is very important to me. I want to have employees who are proud to be here and have a healthy work-life balance.
I'm also interested in public outreach. I want our relationship with the community to be even stronger. It was strong prior to the pandemic. Each judge is assigned as a liaison to one of the 22 judicial districts. They go out as a liaison to meet with the local bar associations, judicial officers, the community. We give presentations to the high schools, give a Goldilocks presentation in the elementary schools. We're working on a program to be able to get into the middle school.
CP: What is the Goldilocks presentation?
Román: When I first came to the court 16 years ago, about two years in there was a bring your daughter/child to work day and they were looking for ideas. I had heard that folks were doing a Goldilocks mock trial for the younger kids.
I wrote up a script where they put Goldilocks on trial for trespassing and theft. That caught on and it’s been a feature of the Court of Appeals. We have presented that in Trinidad, Steamboat Springs, Glenwood Springs — you can name a district and we've been there and presented.
CP: Is it more common for Goldilocks to be acquitted or convicted?
Román: You know, it's very common to have a hung jury. But I would say she's acquitted about as often as she is convicted.
CP: Finally, not every state has an equivalent of the Court of Appeals, but have you seen any practices in other states that have piqued your interest?
Román: I know that there is a court of appeals that sends out a pre-disposition opinion to the parties ahead of oral arguments so that [lawyers] can look at what the division on that court is thinking of doing with the opinion so they can prepare their presentations around where the court has revealed its leaning. That's kind of intriguing. [Editor's note: Those documents are called "focus letters" or "tentative opinions" and exist in the California Court of Appeal system.]
There are other courts that have polled their state appellate bar associations and asked them for feedback on how they think they're doing at the court of appeals. I, for one, would be interested in what our bar association thinks of the work we're doing.