April 23, 2014

[UPDATED] Piloting Change: A Brief Overview of the Colorado Civil Access Pilot Project Rules

Editor’s Note: CBA-CLE will be holding a program next month highlighting the Civil Access Pilot Project, which will help practitioners understand the practical information they need to know once the rules go into effect. The rules have been changed significantly, and failing to navigate them correctly can be detrimental to clients and cases. Registration information is provided below.

By Jessica L. Fuller and Tamara F. Goodlette

In Chief Justice Directive 11-02, the Colorado Supreme Court approved a new set of civil procedure rules known as the Colorado Civil Access Pilot Project. The goals of the Pilot Project are to increase access to the courts and reduce the expense of civil litigation by identifying and narrowing disputed issues at the earliest stage of litigation; requiring ongoing active case management by a single judge; and keeping litigation costs proportionate to the issues being litigated through controlled discovery and other means.

The Pilot Project makes significant changes to the Colorado Rules of Civil Procedure for certain types of business cases in specified judicial districts, which will dramatically affect the way civil cases are litigated. Below is a brief overview of the highlights of the Pilot Project Rules (PPRs).

Not all of the PPRs are addressed below and they may continue to be amended through 2011. To review the full set of the most recent version of the PPRs, visit www.courts.state.co.us/Courts/Supreme_Court/Directives and click on Chief Justice Directive 11-02, “Civil Litigation in Business Actions.”[1]

Introduction to the Pilot Project

When do the PPRs take effect?

  • The PPRs are effective Jan. 1 for certain types of cases filed on or after that date, and will be in effect for applicable cases filed in the next two years.

What happens at the conclusion of the two years?

  • During the two-year period when the PPRs are in effect, IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, will collect data to measure the effects of the procedural changes. The study results will be used to determine whether to make future amendments to the Colorado Rules of Civil Procedure.

Where do the Pilot Project Rules apply?

  • For designated cases in the First Judicial District (Jefferson and Gilpin counties), Second Judicial District (Denver County), Seventeenth Judicial District (Adams County), and the Eighteenth Judicial District (Arapahoe County).

What kinds of cases are governed by the PPRs?

  • “Inclusion in the pilot project will be determined based on the contents of the complaint at the commencement of the action,” according to PPR 1.1.
  • The PPRs will apply to cases that are predominately “business actions” as defined in Amended Appendix A of CJD 11-02. Amended Appendix A lists various types of “included actions” and “excluded actions.” Litigators in the specified judicial districts should refer to Amended Appendix A to determine whether a case is subject to the PPRs.

Do the Colorado Rules of Civil Procedure still apply?

  • Yes. The PPRs are not a complete set of rules and the C.R.C.P. will continue to govern, except where there is an inconsistency, in which case the PPRs will control. (See PPR 1.2.)

Are the PPRs optional?

  • No. In fact, the court may impose sanctions for any failure to timely or completely comply with the PPRs. (See PPR 11.1.)
Overview of Central Provisions of the Pilot Project Rules

Proportionality is the Buzz Word

  • All aspects of the case shall be addressed by the court and the parties to assure the process and costs are proportionate to the needs of the case. The proportionality factors include the “amount in controversy, and complexity and importance of the issues at stake in the litigation. …This proportionality rule shall shape the process of the case in order to achieve a just, timely, efficient, and cost effective determination of all actions.” (See PPR 1.3.)

Notice Pleading Plus

  • “The party that bears the burden of proof with respect to any claim or affirmative defense should plead all material facts that are known to that party,” including “any known monetary damages.” (See PPR 2.2.)
  • General denials of any statement of fact are not permitted. (See PPR 2.3.)

Defendants Must Answer, and Motions to Dismiss Do Not Stay the Case

  • Even if you elect to file a motion to dismiss, you also must file an answer. (See PPR 4.1.)
  • Unless otherwise prohibited by statute, the filing of a motion to dismiss will not delay any pleading, disclosure, or case management deadlines. (Id.)

After You Plead, Get Ready to Disclose

  • No later than 21 days after service of a pleading making a claim for relief or defending against a claim for relief, the pleading party must file its initial disclosures with the court. (See PPR 3.1, 3.3.)

Meet, Confer, and Preserve

  • Within 14 days after the filing of an answer, the parties must meet and confer regarding the “reasonable preservation of all relevant documents and things, including any electronically stored information.” (See PPR 6.1.)

Do Not Expect Extensions or Continuances

  • Motions for extensions of time or continuances (including motions to change the trial date) are strongly disfavored and will be denied on receipt, absent extraordinary circumstances. (See PPR 1.4, 8.5.)
  • Stipulated motions to continue or extend deadlines are not binding on the court and parties should assume the court will deny such motions. (See PPR 1.4.)

Do Expect Active Case Management

  • One judge will be assigned to the case for all purposes, and “absent unavoidable or extraordinary circumstances,” that judge will remain assigned to the case through its final resolution. (See PPR 5.1.)
  • No later than 49 days after the responsive pleadings are filed, the judge shall hold an initial case management conference, which each party’s lead trial counsel is required to attend. (See PPR 7.1.)
  • The court will provide ongoing, active case management, and the parties may contact the court for prompt conferences to clarify or modify any court order or resolve any disputed pretrial matter. (See PPR 8.1, 8.2.)

Factual and Expert Discovery Will Be Limited

  • Discovery will be limited, based on the proportionality factors and “matters that would enable a party to prove or disprove a claim or defense or to impeach a witness.” (See PPR 9.1.)
  • Absent extraordinary circumstances, only one expert witness per side may submit a report and testify in any given specialty or with respect to any given issue. (See PPR 10.2.)
  • An expert’s testimony will be limited to matters disclosed in reasonable detail in the report. (See PPR 10.1(b).)
  • Along with the expert’s report, a party also must produce its expert’s files at the time the witness is disclosed. (See PPR 10.1(a), (c), App. C (defining scope of production and noting parties do not have to produce their expert’s draft reports).)
  • There will be no depositions or other discovery of experts. (See PPR 10.1(d).)

Key Deadlines

  • Twenty-one days after service of the complaint, plaintiff files initial disclosures. (See PPR 3.1.)
  • Twenty-one days after plaintiff’s initial disclosures are filed, defendant files a responsive pleading, which must include an answer. (See PPR 3.2, 4.1.)
  • Fourteen days after defendant’s responsive pleading is filed, the parties meet and confer regarding preservation of documents and electronically stored information. (See PPR 6.1.)
  • Twenty-one days after service of defendant’s responsive pleading, defendant files initial disclosures. (See PPR 3.3.)
  • Seven days before the case management conference, parties file a joint case management report in the form set forth in Appendix B of CJD 11.2. (See PPR 7.1, App. B.)
  • No later than 49 days after defendant’s responsive pleading is filed, the case management conference is held, and lead counsel must attend. (See PPR 7.1.)

Generally, within 91 days of service of the complaint, the answer, any motions to dismiss, all disclosures, and the joint case management report will be filed and the case management conference will have occurred.

The PPRs are an attempt to improve the management of the civil litigation process and increase access to our judicial system by controlling the discovery process and lessening the expense of litigation. We urge litigators in the Denver area to support the Pilot Project and share their feedback during the two-year pilot period with IAALS.

Notes

[1] The PPRs are not to be confused with the amendments to the Colorado Rules of Civil Procedure for calculating trial and appellate deadlines that will apply in all cases in all judicial districts in the state. Most of these deadline amendments become effective Jan. 1, and others become effective July 1. Go to http://bit.ly/CPRCChanges for a copy of the amended rules.

Jessica Fuller and Tamara Goodlette are litigation associates at Rothgerber Johnson & Lyons LLP and can be reached at (303) 623-9000 or jfuller@rothgerber.com and tgoodlette@rothgerber.com.

The Docket eFile brings features from your favorite Denver Bar Association publication to you digitally. When you see the logo, you’re reading an article from The Docket. You’ll also still be able to read the full issue online at denbar.org/docket.

CLE Program: The Civil Access Pilot Project – New Rules of Civil Procedure for Cases in 5 Districts

This CLE presentation will take place on Friday, December 2. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live programs or webcasts, the programs will also be available as a homestudy in three formats: video on-demand, mp3 download, and audio CD recordings.

Comments

  1. Daniel T. Goodwin says:

    I have been litigating for 42 years. The provisions that are listed in the Overview of Central Provisions will not accomplish the stated goals. Litigation is not a cookie cutter business. Cases do not fit into the dreams of those who want to see a neat, clean stepped process. There are too many variations in every case to allow that to happen.

    First example: The provision that requires an answer and continuation of the preparation of the case at the same time that a motion to dismiss is filed does not speed up the process or diminish the expense for the client. In fact, it could substantially increase the cost. There is nothing in the rule that requires the court to respond to the motion to dismiss. What if the motion is not ruled on for three months. The new process would have the case into full blown discovery and the court could then grant the motion and all the work accomplished in the mean time would be for naught. Wasted legal work is a lot more expensive than necessary legal work. These kinds of delays already happen with motions for summary judgment. Many times they are not ruled on until just prior to trial. Yet trial preparation goes on and clients pay for work that is never used.

    Second example: The provision that does not allow the court to continue a date in a case even when trial counsel agree that it should be done. Who is running the case – the court or the participants? What does the court care if the trial is heard tomorrow or a year from now. Let the litigants decide when to take their case to trial. Get out of the business of forcing duties and get back in the business of resolving what is on the table for completion. The market place will monitor the claim speed and cost.

    This is just a new set of rules. It will not accomplish the stated ends. It will provide a new set of challenges to the litigators and new reasons to file more motions that will create more rulings and rules.

    The problems with the legal system are not created by the procedural rules. In my opinion, it is the number of attorneys that are allowed into the game that has created the problem. There are too many lawyers and not enough work to go around. Solve that problem. Leave the rules alone.

    Thanks for giving me a chance to comment.

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