Congratulations Julie Williamson

Julie Williamson has been selected to the 2017 and 2018 Colorado Super Lawyers list in the practice area of Alternative Dispute Resolution. This honor is reserved for those lawyers who exhibit excellence in practice and represents only 5% of attorneys in the state of Colorado.

Ms. Williamson has been elected to The Best Lawyers in America® for all years since 2006. She was named a Colorado Super Lawyer in Business Litigation from 2009 to 2013 and in Alternative Dispute Resolution in 2014 through 2017. She holds Martindale Hubbell’s highest rating of AV preeminent.

View The Panelists and Their Recognition

Congratulations Joe Epstein

Joe Epstein, Esq., selected to the 2017 Colorado Super Lawyers list.  Joe’s primary area of practice is Alternative Dispute Resolution.

Named by Law Week Colorado 2017 Barrister’s Best Mediator.

Joe Epstein, named as the 2013, 2015, and 2017 Barrister’s Best “Best Mediator” in Colorado, has been recognized as one of the best commercial mediators worldwide, and a top lawyer in Labor and Employment.

Joe is known for his handling a diverse variety of highly emotional and complex cases. A mediator, writer and educator, Joe is Past Vice-President and a Distinguished Fellow of the International Society of Mediators and a member of the National Academy of Distinguished Neutrals -Colorado Executive Committee. Joe has mediated over 4000 cases.

View The Panelists and Their Recognition

Making the Arbitrator’s Job Easier

This article originally appeared in Colorado Lawyer – August/September 2017.  Reprinted with permission.

This article offers suggestions to help counsel achieve cost-effective and successful arbitrations by making the arbitrator’s job easier.

These days, few civil litigators are strangers to arbitration because contractual provisions to arbitrate are common. Put simply, in arbitration the parties have contractually agreed to bring disputes before one decision maker or a panel of three private decision-makers rather than before a judge or jury.

This article describes ways counsel can make the arbitrator’s job easier to facilitate a prompt and successful result at less cost.

“Why should counsel care about making life easier for the arbitrator? Because it is in counsel’s and the clients’ best interests to do so.”

Why Focus on Helping the Arbitrator?

Why should counsel care about making life easier for the arbitrator? Because it is in counsel’s and the clients’ best interests to do so.

First, arbitration is meant to be an efficient means of dispute resolution. All too often, though, parties complain that the arbitration took as long as it would have taken to litigate the case in court. In most cases, it should not be that way. The suggestions below will help counsel achieve a prompt resolution of the client’s problem.

Second, arbitrators cost money. Arbitrators typically are paid an hourly rate. That cost is multiplied for a three-member panel. On top of that, the client must pay the attorney for time spent on the case. The suggestions discussed below help the arbitrator and counsel spend less time on the case, and thus save the client money.

Third, to paraphrase a maxim more often said about moms: “If your arbitrator ain’t happy, ain’t nobody happy.” If parties are in arbitration, they have taken the time to select a qualified and impartial neutral. Arbitrators take seriously their obligation to consider the evidence fairly and decide the case according to the law and the evidence. However, a lawyer who is disorganized or unduly combative not only makes the arbitrator unhappy, but may be damaging the client’s case as well. Such counsel is asking the arbitrator to rule in favor of the client in spite of himself. Don’t do that. Instead, practice in a way that makes it easy for the arbitrator to look favorably upon the client’s case.

A few caveats are important to note here:

■ Arbitrators have different styles and opinions. For example, some like to follow the rules of civil procedure as closely as possible, and some apply the rules of evidence more strictly than others. Know the arbitrator and modify these suggestions accordingly.

■ The author’s views are her own and are not made on behalf of any alternative dispute resolution organization.

■ No criticisms should be taken personally. The author’s experiences as an arbitrator reveal that most counsel are professional, present their cases well, and are a pleasure to work with.

■ While the suggestions in this article are also applicable to cases before judges, the author has never been a judge.

Suggestions for Facilitating Arbitrations

Arbitration should be a fair, efficient, and economical means of resolving disputes. Counsel, as well as arbitrators, can take steps to achieve that result. The following are some practical suggestions to make an arbitration run smoothly.

Confer, Confer, Confer

As judges say over and over again: You need to confer with opposing counsel. Conferring is more than exchanging polarizing emails. It means talking and trying to reach reasonable accommodations. The need to confer starts with the scheduling order and addressing such topics as hearing time, deadlines, discovery limits, and motions procedure. It continues throughout the arbitration process regarding discovery disputes, proposed motions, joint exhibits, admissibility of exhibits, and undisputed facts. Counsel will not resolve every issue, but by conferring with opposing counsel, the most is made of the arbitrator’s time—and the client’s money—by limiting the matters to be raised with the arbitrator to true disputes.

Many arbitrators find it efficient to be readily available for phone conferences with counsel to resolve disputes. In that circumstance, counsel can be tempted to give short shrift to discussions with opposing counsel and instead move directly to a call with the accommodating arbitrator. The result can be that nearly every issue—major and minor—is presented to the arbitrator for a decision. The danger is that the big issues can be lost among the minutiae. The better practice is to try to resolve minor issues with opposing counsel so that the arbitrator can focus attention on the important disputes.

Be Reasonable

Arbitrations are generally less formal than court proceedings. Most pre-hearing conferences take place by telephone. Hearings are held in a conference room rather than a courtroom and usually are not transcribed.

Nonetheless, less formal should not mean less professional. Not every issue needs to be treated as life-or-death, and counsel shouldn’t fight just for the sake of fighting. By statute, the grounds for reversal of an arbitration award are extremely limited. This puts matters such as admission of evidence on a different procedural footing than in a trial by jury, for example. Generally, the only evidentiary ruling that can be grounds for vacating an arbitration award is the arbitrator’s refusal to consider material evidence.1 Thus, the arbitrator will often admit marginally relevant matters into evidence with the proviso that the evidence will be given the weight it deserves. So it makes no sense for counsel to object to the admission of every item of evidence, particularly on grounds of relevance.

That does not mean that counsel should never make evidentiary objections. Well-founded objections can call the arbitrator’s attention to the weakness in a piece of evidence. Also, although it happens rarely, arbitrators sometimes exclude evidence. If evidence is plainly irrelevant and submitted simply to make the other side look bad and prejudice the arbitrator, for example, the arbitrator may well draw the line and exclude the evidence. And all arbitrators lose patience with repetitive evidence. So don’t stop making objections entirely. Just consider whether an evidentiary issue truly matters before making it a matter of mortal combat.

Don’t Over-Litigate

Arbitrators should manage arbitration proceedings as fairly, diligently, efficiently, and economically as possible. They owe that obligation to the parties in the matter before them, as well as to the integrity and trustworthiness of the arbitration system itself. Nonetheless, when counsel and parties complain that arbitration ends up being every bit as long and expensive as a court action, it is important to look not only at the arbitrator’s case management but also at counsel’s conduct. The length and cost of an arbitration proceeding can be directly proportional to the volume and nature of discovery (and resulting discovery disputes) and motions practice. Counsel plays a pivotal role in containing those factors. If counsel stipulate to 20 depositions per side, for example, the arbitrator may be reluctant to impose more stringent limits. Similarly, multiple attorneys may seek to file broad and expensive dispositive motions despite warnings that such motions are rarely granted.

“The better practice is to try to resolve minor issues with opposing counsel so that the arbitrator can focus attention on the important disputes.”

An experienced arbitrator has tools for managing a case efficiently regardless of counsel’s approach. But it is important for attorneys to recognize that arbitration is not just litigation in a different forum. The parties presumably included an arbitration clause in their contract in part because they wanted a faster and more cost-effective means of dispute resolution. Counsel should further those goals by asking only for the discovery they truly need and permission to file only motions that are well-founded, narrowly tailored, and reasonably likely to succeed.

Streamline Motions and Briefs

Arbitrators are most persuaded by written submissions that are well-organized, concise, and to the point. Flowery language, hyperbole, and attacks on the integrity of opposing counsel or parties don’t help. The logical presentation of well-sequenced arguments supported by facts and law is much more effective.

Here are some tips for motions and briefs:

■ Numbered paragraphs, bullet points, or charts can aid in presenting a well-structured and concise argument.

■ A few cases on point with their relevance explained at least parenthetically are more useful than string cites of many less relevant cases.

■ Providing PDFs of important authority with the pertinent language highlighted reduces the arbitrator’s time spent retrieving authority.

Use Experts Wisely

Expert witnesses can be just as useful in arbitration as in court trials. They can provide specialized knowledge and industry information that the arbitrator might not otherwise have. But be judicious and efficient when presenting an expert’s testimony. Although it is important to emphasize that an expert is the “real deal,” an arbitrator is unlikely to be swayed by an unduly detailed presentation of the expert’s credentials. The arbitrator wants to hear the expert’s opinion. Consider using the expert’s curriculum vitae as an exhibit that the arbitrator can read, and refer only briefly to the expert’s credentials during testimony.

Also, take advantage of the fact that an experienced and intelligent decision-maker is presiding. Don’t let the expert take an extreme position that, while purportedly favorable to the client, defies common sense, undermines the expert’s credibility, and may damage the trustworthiness of the entire case. Understand the expert’s analysis and look at it with a critical eye before the hearing.

Organize, Organize, Organize

Good organization—whether in legal writing, presentation of testimony, or arrangement of exhibits—is golden. Nothing makes an arbitrator happier than a well-organized and carefully pruned case presentation.

Organization, or the lack thereof, is most evident in the selection and presentation of exhibits.

“An experienced arbitrator has tools for managing a case efficiently regardless of counsel’s approach. But it is important for attorneys to recognize that arbitration is not just litigation in a different forum.”

Here are some best practices:

■ Take seriously the arbitrator’s request that counsel agree on joint exhibits. Typically, the authenticity and relevance of most exhibits are not in dispute. Make them joint exhibits, arrange them logically, and (if using hard copies) fit them into one notebook if possible. And only make a document a joint exhibit when all counsel are waiving objections to the admissibility of that exhibit. Objecting to the admissibility of a joint exhibit during a hearing causes confusion.

■ Pre-number exhibits and provide separate exhibit lists for joint exhibits, claimant’s exhibits, and respondent’s exhibits, with dates and descriptions. It is easiest to include all pre-numbered exhibits in the notebooks, whether stipulated or not. Then, at the end of the hearing, counsel can provide the arbitrator with an agreed list of all admitted exhibits so that all other exhibits can be removed from the notebooks.

■ Use one color of notebook for joint exhibits, a second color for claimant’s exhibits, and a third color for respondent’s exhibits, so that it is easier to refer to the notebooks at the hearing. Agree on notebook colors with opposing counsel, resting assured that the arbitrator will attribute no significance to the colors chosen. Label the spine and front of each notebook with the pre-numbered exhibits it contains.

■ Resist the temptation to take a “kitchen sink” approach to exhibits. If that proves impossible, at least organize exhibits in such a way that the documents likely to be used are in the first few exhibit notebooks (organized chronologically or in another logical sequence) and the others are in the last notebooks. (Odds are that the last notebooks will never be opened.) That arrangement minimizes the cumbersome juggling of notebooks for witnesses, the arbitrator, and counsel at the hearing.

■ Use excerpts of voluminous documents, highlighted as appropriate, but have one copy of the full original documents available at the hearing in case opposing counsel objects to the excerpts selected.

■ Use summary charts of complex information or information that requires reference to multiple different exhibits. List in the summary the exhibit numbers of the supporting documents, if applicable. Be sure to provide the summary exhibit to opposing counsel before the hearing along with the documents summarized so that opposing counsel has the chance to determine the summary’s accuracy.

■ Timelines and demonstrative exhibits can also be useful. Bear in mind that in a complex case, any presentation that clarifies the sequence of events is appreciated. As with summary exhibits, provide timelines and demonstrative exhibits to opposing counsel before the hearing.


The foregoing suggestions are not rocket science. In fact, many echo the advice for good advocacy typically given by judges to litigators who appear in their courtrooms. That advice is equally wise when applied to arbitrations. It serves all concerned to make the arbitrator’s—like the judge’s—life easier.

NOTE 1. See Colorado Revised Uniform Arbitration Act, CRS § 13-22-223(1)(c); Federal Arbitration Act, 9 USC § 10(a)(3).

Pot and Real Estate

This article originally appeared in Industry Experts – Mediation and Cannabis Real Estate Issue
Reprinted with permission.

The two important issues to keep in mind when dealing with cannabis real estate issues are: first, it remains a federal violation; and second, state and local laws are moving targets and need to be updated for each transaction. As you know, cannabis for both medical and recreational use is legal in Colorado, but the state and local laws and ordinance governing each are very different and change frequently. There are banking prohibitions that make it difficult, if not impossible, for business owners to obtain traditional loans and conduct business through traditional banking venues. Most customary deductions allowed for carrying on a trade or business do not apply. 26 USC §280E


Cannabis businesses are required to get both local and state licenses which include background checks, Colorado residency requirements and other matters that go beyond the scope of this article. Regarding real estate issues, several insurance title companies either make it very difficult or refuse to close on real estate transactions used for cannabis purposes. Thus, it is important to get early title insurance commitment that it will not interfere with the closing simply because the property involves cannabis.

There are lending and deed of trust issues arising from financing. It is very difficult, if not impossible, for cannabis businesses to get traditional financing. Most financing packages the real estate professional may encounter are high interest individual financing, and as of January, 2017, out-of-state financing is available with certain restrictions.

Additionally, there are “ownership” issues. The relationship between a landlord and tenant may be considered “ownership” by the State of Colorado Marijuana Enforcement Division (MED) Rules M, R103, 204.5(C)(2). This is based on various factors including rent based on profitability, landlord involved in management, too much rent being paid, and security interests in the property. It is important for the real estate professional to be aware of these risks of one party unintentionally being considered an owner by the MED.

There are constantly changing local licensing issues that sometime appear to be arbitrary, butnevertheless need to be considered. Some of these issues include zoning, certificates of occupancy, fire inspections, to name a few. Each municipality may have its own rules, with some municipalities allowing medical but no recreational businesses or vice versa. Thus, it is critical for the real estate professional to be aware of these critical local licensing issues, as well as state licensing issues. By example, in May 2016, Denver’s Ordinance No. 16-0291 is an effort to restrict and reduce the number of licensed stores and grows in Denver. It limits the transferability of cannabis businesses located at the same address. It is important to note that the same addresses may also include different cannabis businesses located in one address with different suite numbers. Applications must pay a non-refundable fee that complies with zoning and location restrictions. The applicant must show financial capability and good character with no disqualifying criminal record or cannabis licensing violations; lawful possession of the premises, which consist of a deed, lease, real estate contract contingent on successful licensing. Also, no new grows will be allowed within 1,000 feet of a school or residential district measured as the crow flies.


The MED requires that a licensed cannabis business have a possessory interest in the real estate in which the business will be operating, Rules M, R302(A), which can be achieved by ownership of real estate or by leasing it. A lease should include a right to terminate upon a threat from federal enforcement agencies unless the tenant’s behavior caused the federal intervention. This is important for the landlord who wants to protect the real estate from federal or state seizure action. Whereas, the tenant wants protection against rent payment obligations after the federal agency prohibits the operation of the cannabis business on the property. It will also be helpful to make a lease contingent upon MED approval. The approval by the MED will be location-specific, requiring proof of possessory interest in the property. Rules M, R302(A). The state license by the MED will additionally require local approval. Rules M, R201(E). Most local approval requires a certificate of occupancy to be issued which requires that tenant improvements be complete.

There are also restrictions to the landlord having access to the premises and to the business records. By example, a landlord would need to comply with sign-in and badge requirements before entering an area where cannabis products are located. The landlord will not be able to access cannabis-related business records unless the licensee tenant is physically present at the MED.

Tenant improvements, especially with grows, can be very expensive, including stringent scrutiny, surveillance, and tracking requirements. The landlord may have concerns about spending money upfront when the tenant may default. The tenant may have concerns about spending money upfront and then losing the lease.

Regarding the term of the lease from the landlord’s point of view, a shorter term may be safer and can readjust rent upwards in a rising market. The tenant’s point of view may be for a longer-term lease to cap the rent payments and protect the investment in the property and goodwill.

The fixtures usually become the property of the landlord upon lease termination, but trade fixtures are sometimes excluded. Trade fixtures could include such items as grow lights, irrigation, sophisticated electrical, and tracking and surveillance improvements. The cost of finishing out a cannabis grow facility is usually big dollars. It is important to sort out upfront which fixtures remain with the property and which fixtures leave with the tenant. This is particularly important since grow technology changes rapidly.


Since cannabis is still Schedule I and illegal under federal law, it makes it very difficult for a traditional lender to make a loan. Thus, opportunities abound for private lenders. However, all parties need to be aware that federal and state drug forfeiture laws could cause the property to be confiscated by federal law enforcement officers, even for violations of state law. There are numerous opportunities for legal entanglement and unforeseen legal consequences with private lenders in the cannabis business, including the amount of the loan, interest rates, terms and personal guarantees/security of the loan. Some red flags to watch for in financing issues are high fixed interest rates on the loan, variable interest rates based on profits, security interests in the license or inventory, security interest in the equipment used directly in the manufacture or cultivation of cannabis or infused products.


There are different Home Owners Association (HOA) issues for residential units and commercial units. In residential units, each adult has the right to grow up to six plants at various stages of development. There are issues with grow lights, high humidity, and again, the federal illegality issue. Regarding commercial units, there are the same concerns as in residential, but can also include increased expenses for insurance and utilities, odors, and the risk of explosion during the extraction process, to name a few.

Generally, covenants, conditions and restrictive language prohibits activities that are in violation of any law, ordinance, rule or regulation which would clearly include a cannabis business. Thus, there may need to be amendments in the provision. Furthermore, the energy use for a grow operation can become astronomical from the use of grow lights, air conditioning, and other controls over the environment. It may require significant power upgrades to the property.

It is also important to consider zoning issues which can vary from municipality to municipality. There are also proximity issues that include odors and objections from neighbors.

Federal bankruptcy is not an option for cannabis-related businesses, and nearly all dealings will be done in cash. Thus, it is important for all parties to maintain detailed records. Additionally, the landlord may have difficulties depositing cash payments that smells like cannabis, or large cash deposits may trigger banking difficulties. There are also insurance issues to consider with the cannabis business. Most standard insurers will not insure such businesses, so a need for expensive excess lines carriers may be necessary. There are insurance agents who specialize in cannabis-related properties.


On January 17, 2017, the Federal 10th Circuit Court of Appeals in Denver heard oral arguments in a consolidated case that claims Colorado’s recreational cannabis laws fly in the face offederal controlled substance laws and the Racketeer Influenced and Corrupt Organizations Act (RICO) laws. Some of the issues to be determined are: the wafting smell and its possible effect of neighboring property values, the impact of greenhouse construction on property. It could take months for the 10th Circuit to issues its opinion. Safe Street Alliance v. Alternative Holistic Health, 16-1048.


Mediating real estate disputes, including cannabis related real estate disputes, is a recommended and effective way for problem solving. This is particularly so in the cannabis business where oftentimes friends and family members are co-investors, and it is important to try to maintain those relationships despite disagreements. Furthermore, there is very little case law addressing cannabis type issues, and it could be very risky to take such cases to court, which can most assuredly result in an appeal due to the evolving nature of the case law. Additionally, mediation is a confidential process for the parties in dispute to come up with their own resolution that will work for them without the interference of the court. Additionally, a majority of Colorado courts require mediation before a trial is set.
I make myself available to assist parties through mediation in arriving at a confidential and enforceable mutually agreeable resolution of their dispute.

The author would like to thank Joel D. Russman, Esq. for his guidance and assistance in this article.