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Empirical Findings Inform Different Approaches to Discovery Reform

November 26, 2012 by Leave a Comment

One of the principal goals of the Colorado Civil Access Pilot Project (CAPP) is to streamline the discovery process and thereby reduce the cost of litigation. Ultimately, CAPP’s success in reducing total litigation costs depends on how big of a problem the discovery process actually is. Suffice it to say, there is not agreement on this point, as best illustrated by the differing empirical findings of the Federal Judicial Center and the Institute for the Advancement of the American Legal System.

The Federal Judicial Center (FJC) is the education and research agency for the federal courts. The FJC surveyed more than 2,000 attorneys of record in federal civil cases terminated in the last quarter of 2008. 1 The FJC found median litigation costs, including attorney fees, of $15,000 for plaintiffs and $20,000 for defendants. It also found a strong correlation between the stakes of a case and total litigation costs. Specifically, all else being equal, if the stakes in a case double, litigation costs increase by 25 percent. Finally, the FJC found that the median percentage of total litigation costs accounted for by discovery was 20 percent for plaintiffs’ attorneys and 27 percent for defendants’ attorneys. The FJC researchers suggest that “before any further amendments to the discovery rules are proposed in the name of reducing costs, more effort must be made to define the problem that such rule amendments are supposed to address.” 2

The Institute for the Advancement of the American Legal System (IAALS), headquartered at the University of Denver, helped develop CAPP and is currently tracking its progress. IAALS surveyed the impressions of thousands of American College of Trial Lawyers Fellows nationwide. IAALS found that survey respondents overwhelmingly believed that the costs of litigation were not proportionate to the value of a case. Those surveyed also indicated that cases involving less than $100,000 are not cost effective to litigate. 3 Finally, the IAALS study found that the median estimate of the percentage of litigation costs attributable to discovery in cases not going to trial was 70 percent. 4

The differences in findings are stark. The FJC found that litigation costs are generally proportionate to the stakes in litigation; IAALS found the opposite. But perhaps the largest contrast is the share of litigation costs attributable to discovery. If the FJC is correct that the discovery process only accounts for 20 to 27 percent of total litigations costs, we would need to temper our expectations for CAPP’s goal of reducing total litigation costs. If, however, discovery accounts for 70 percent of total litigation costs, then we might remain optimistic that CAPP will significantly decrease costs and thereby improve access to the civil justice system.

In my humble opinion, if there is a problem to be solved by CAPP, it’s that cases with relatively little at stake can cost so much that they are not cost-effective to litigate. While I find the FJC’s empirical results more persuasive than its IAALS counterparts, the FJC findings do indicate that litigation costs are more of a problem for cases with less at stake. 5 I believe that CAPP, if respected by attorneys and strictly enforced by judges, can reduce the overall costs for cases with less at stake (i.e., approximately $100,000 or less). 6 This may not be the far-reaching result that the CAPP creators envisioned, but it would certainly constitute progress.

Notes:

  1. For an in-depth summary of the differing empirical findings in this area, see Emery G. Lee & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation, 60 Duke L.J. 765 (2010). Unless otherwise indicated, all statistics in this blog are taken from this article. ↩
  2. Id. at 768. ↩
  3. A History and Overview of the Colorado Civil Access Pilot Project, available here. ↩
  4. To clarify, the IAALS survey inquired only about cases not going to trial, while the FJC study included all cases. Lee and Willging do not discuss this difference in their article, but given the very low percentage of cases that go to trial (according to the article cited in footnote 3, the district court civil trial rate in Colorado is 1 percent), I would not expect it to significantly affect the statistical outcome or the ability to accurately compare the FJC and IAALS numbers. ↩
  5. See Lee & Willging, supra note 1, at 788 figs. 1 & 2. ↩
  6. I will concede that CAPP’s effectiveness in this regard may be somewhat muted by the existing availability of CRCP 16.1. However, everything I have read indicates that Rule 16.1 is sparingly used. As CAPP is mandatory, it will most likely have a stronger impact on reducing costs. ↩

Michael Ley is an associate at Brosseau Bartlett Seserman, LLC and concentrates his practice on insurance, commercial, and civil litigation.. He contributes to the CBA’s SOLO in COLO blog, where this post originally appeared on November 8, 2012.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

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Civil Access Pilot Project: Making Colorado Courts More Efficient?

July 25, 2012 by 1 Comment

Earlier this year, we, as attorneys, were blessed by the Colorado Supreme Court’s decision to completely overhaul the procedure for practicing law in Colorado.  Dubbed the Colorado Civil Access Pilot Project, or CAPP for short, its new procedures apply in (1) “Business Actions” (2) filed between Jan. 1, 2012, and Dec. 31, 2013 (3) in Adams, Arapahoe, Denver, Gilpin, or Jefferson counties.

For what constitutes a “Business Action”, see page 8 of Chief Justice Directive 11-02, available here.  Notable exclusions from CAPP include: actions solely for the payment of rent on real property, CRCP 120 proceedings, actions brought by financial institutions solely for the collection of debt, employment actions other than disputes concerning the breach of a non-compete or theft of trade secrets, construction defect claims, negligence actions for physical injuries, and actions involving a statute or rule that contains distinct timeframes for the proceedings.

I have had the opportunity to represent parties in two CAPP cases this year — one as a plaintiff and one as a defendant. Our CAPP plaintiff case was filed in late March.  I don’t have much to report from this case because it settled shortly thereafter, but I did take notice of how quickly we were required to make our initial disclosures.  Under CAPP, the plaintiff is required to file initial disclosures no later than 21 days after service of the complaint.  This felt like a very quick turnaround.  We definitely had to do a little more work on the front end to meet the deadline.  These initial disclosures consist of:

 [A] statement listing all persons with information related to the claims and a brief description of the information each such individual is believed to possess, whether the information is supportive or harmful.  The statement shall also include a certification that the party has available for inspection and copying all reasonably available documents and things related to the claims, along with a description by category and subject area of the documents and things being disclosed, whether they are supportive or harmful.

Again (it was not a typo two sentences ago), these disclosures must be filed with the court and served on the opposing party or parties.

A few things to note here: First, regarding the scope of the initial disclosure statement, the CAPP authors have emphasized that “all documents” means all documents, whether supportive or harmful.  Based on the wording of C.R.C.P. 26(a)(1), I think lawyers were already under an obligation to produce everything, but the CAPP authors seem to think that many attorneys don’t give over the juicy stuff unless asked.  Second, the scope of discovery changed from “relevant to” to “related to.”  Based on my reading, it appears that “related to” is a broader standard.  Third, this initial disclosure statement is somewhat narrow in that no counterclaims have yet been brought.  So the scope of discovery at that point is only documents “related to” the claims in the complaint.  However, if counterclaims are brought, the plaintiff has to file an additional disclosure statement (discussed more below).  Finally, I took note of how different it is to give documents to a defendant who has not yet filed an answer.

The CAPP case where our firm represents the defendant has been much juicier.  That case was filed in early March and remains ongoing.  I’ve observed a couple CAPP pitfalls in this case.  First, file your initial disclosure statement.  The CAPP deadlines are structured such that one deadline begins only after the previous deadline has been met.  Under the CAPP rules, the answer is not due until 21 days after the plaintiff files the disclosure statement.  Technically, if you don’t file your disclosure statement, the defendant doesn’t have to answer.  Second, the CAPP courts are issuing delay reduction orders shortly after the filing of the complaint.  One of the provisions of the DROs is for the plaintiff to set a case management conference within seven days after the last answer is filed.  Note, this deadline is not in the CAPP rules, so watch out for it.

At this point in the case, if I were to identify the biggest difference between CAPP and the Colorado Rules of Civil Procedure it would be that, if counterclaims are filed, the CAPP pleading/initial disclosure stage can take a long time.  As I said, this case was filed in early March, and the final disclosure statement is not due until mid-to-late June.  Time will tell whether the CAPP rules can justify this lengthy pre-discovery period by significantly reducing the length and burden of discovery.  If not, I don’t think the CAPP rules will make litigating any more efficient than under the CRCP.

Michael Ley is an associate at Brosseau Bartlett Seserman, LLC and concentrates his practice on insurance, commercial, and civil litigation.. He contributes to the CBA’s SOLO in COLO blog, where this post originally appeared on July 23, 2012.
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State Judicial Issues Several New and Revised Forms for the Civil Access Pilot Project

December 23, 2011 by Leave a Comment

The Colorado State Judicial Branch has revised a number of forms to be applicable in litigation governed by the new Civil Access Pilot Project. The revised forms can be used in Pilot Project cases and those not governed by the new rules. State Judicial also issued two new forms specifically applicable to Pilot Project cases. Practitioners should begin using the new forms immediately.

All forms are available in Adobe Acrobat (PDF) and/or Microsoft Word formats. Download the new forms from State Judicial’s Civil Rules Pilot Project page, or below.

Pilot Project

  • Civil Access Pilot Project Summons (12/11)
  • JDF 601 – “District Court Civil Cover Sheet” (revised 12/11)
  • JDF 603 – “Instructions to Complete District Court Civil Case Cover Sheet” (revised 12/11)
  • JDF 604 – “Notice and Order to File JDF 601 Case Cover Sheet” (revised 12/11)
  • JDF 634 – “Civil Access Pilot Project Initial Case Management Conference Joint Report of the Parties (1/12)
  • JDF 635– “Civil Access Pilot Project Form for Disclosure of Expert Witnesses” (1/12)

Click here to review these forms and other resources pertaining to the Civil Access Pilot Project.

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

November 17, 2011 by 1 Comment

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.
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Colorado Civil Access Pilot Project: Changes to Included/Excluded Actions

October 18, 2011 by Leave a Comment

The Colorado Supreme Court has amended the Chief Justice Directive that outlines the implementation of the Civil Access Pilot Project. As of October 2011, an amended Appendix A has been included in CJD 11-02. The Appendix describes the types of cases that will be included in the program, and those that will be excluded.

The revised Chief Justice Directive with the updated list of included and excluded actions can be found here.

The Civil Access Pilot Project is an attempt by State Judicial to revamp the discovery process and reduce the expense of civil litigation in certain business actions. The Colorado Rules of Civil Procedure concerning pleading, discovery, and trial management have been modified for the cases falling within the realm of the project.

The pilot project is scheduled to last two years, unless extended by the Court.

CJD 11-02 – “Adopting Pilot Rules for Certain District Court Civil Cases”

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Pilot Rules for Certain District Court Civil Cases Adopted by Colorado Supreme Court

July 27, 2011 by Leave a Comment

Following the Colorado Supreme Court’s approval of the Civil Access Pilot Project, the Court has issued a new Chief Justice Directive to implement the rules outlined by the project. These revised rules are an attempt by the Court to study if the control of the discovery process reduces the expense of civil litigation in certain business actions.

In order for the project to be implemented successfully, the Court has determined that the Colorado Rules of Civil Procedure concerning the pleading, discovery, and trial management of certain cases must be modified.

All of the new rules are outlined in CJD 11-02.

The rules contained therein are effective January 1, 2012 and will be applicable to cases filed on or after that date. The rules are adopted for use in the designated cases in the First, Second, Seventeenth, Eighteenth, and Twentieth Judicial Districts.

The pilot project is scheduled to last two years and apply to all applicable cases filed in the pilot districts up to December 31, 2013 or until further order of the court.

The effect of the pilot project will be studied by the Institute for the Advancement of the
American Legal System (IAALS), working at the request of the Court. IAALS will issue a report
on the effect of the project upon the conclusion of the two year period.

CJD 11-02 – “Adopting Pilot Rules for Certain District Court Civil Cases”

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Colorado Supreme Court Approves Civil Access Pilot Project

June 23, 2011 by 1 Comment

The Colorado Supreme Court has voted to implement the Proposed Civil Access Pilot Project, which was the subject of a lengthy public hearing in January. The program will go into effect on January 1, 2012. The pilot stage of the project will last two years and be applicable to the much of the Denver metro area:

  • First Judicial District (Jefferson and Gilpin Counties);
  • Second Judicial District (Denver County);
  • Seventeenth Judicial District (Adams County);
  • Eighteenth Judicial District (Arapahoe and Douglas Counties); and
  • Twentieth Judicial District (Boulder County).

The goal of the program is to increase access to justice and provide for a more speedy resolution of cases. This is achieved through civil rule changes designed to streamline civil lawsuits; changes to the discovery rules in certain cases will, if effective, cut down on excessive delays and costs.

The pilot project rules changes will apply generally to business actions with some exceptions. The program was originally designed and proposed to include discovery changes for medical malpractice suits as well, but the Colorado Supreme Court specifically excluded those or professional malpractice cases from the final project implementation. The pilot project rules will also not apply to employment cases, construction defect actions, cases where the Colorado Governmental Immunity Act may provide a defense, and cases involving wages and forcible entry.

A final version of the pilot project rules will ultimately be published in the The Colorado Lawyer and will also be sent to interested bar associations and/or specialty bar websites.

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