Colorado Court of Appeals
Honorable Michael H. Berger
Retention Year: 2016
Recommendation: Retain
Reports:
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The State Commission on Judicial Performance recommends by a vote of 9 to 0, with one recusal, that Judge Michael H. Berger BE RETAINED.
Judge Berger was sworn in as a Judge on the Court of Appeals on January 24, 2014. He earned a bachelor’s degree from Cornell University in 1972 and a law degree from the University of Colorado, School of Law in 1975. Judge Berger was admitted to the Colorado bar in 1975 after which he spent a year as law clerk for Colorado Supreme Court Justice Edward Pringle. Before joining the bench he was a partner at the law firms of Husch Blackwell LLP (2011-2013), Jacobs Chase LLP (2007-2011) and Koff Corn & Berger P.C. (1982-2007). His practice focused on commercial litigation, appeals, and legal ethics. Judge Berger has served as a Visiting Lecturer in Law, University of Colorado School of Law (1978-1979) and as a frequent presenter on legal ethics. He serves on many professional committees including the Colorado Supreme Court Committee on Rules of Civil Procedure (current Chair), Colorado Supreme Court Committee on Rules of Appellate Procedure, and the Colorado Supreme Court Standing Committee on the Colorado Rules of Professional Conduct.
The Commission conducted a personal interview with Judge Berger, read opinions he authored, observed him in court, reviewed his self-evaluation and reviewed survey responses from attorneys and judges regarding his performance. Among the survey questions was “how strongly do you recommend that Judge Berger be retained in office, or not be retained in office?” Of attorneys completing the survey 77% recommended to retain, 14% not to retain, and 9% made no recommendation regarding retention. Of judges completing the survey 100% recommended that he be retained.
Attorney survey responses indicate that Judge Berger’s performance was above average in treating parties equally, courtesy toward attorneys, issuing opinions in a timely manner, and being fair and impartial toward each side of the case. Attorney responses also indicate that he is strong in making reasoned decisions, writing opinions that are clear and that adequately explain the basis of the decision. The Commission’s observation of Judge Berger during oral arguments showed that he was well prepared and actively questioned the attorneys as they presented their arguments. Attorneys further acknowledge that he has strong analytical skills and his decisions are well researched, thorough, and straightforward. His independence and intellect were often mentioned and admired. Attorney comments also noted that this independence, on occasion, compromises his attention to precedent in order to reach a desired conclusion. The Commission agrees with Judge Berger that he should continue to work to gain additional experience in the area of criminal law. Judge Berger is conscientious and the Commission commends him for his work to improve the legal profession.