May 25, 2013

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Changes to Colorado Rules of Civil and Criminal Procedure Issued by Supreme Court

May 23, 2013 by Leave a Comment

On Wednesday, May 22, 2013, the Colorado Supreme Court announced changes to the Colorado Rules of Civil Procedure and the Colorado Rules of Criminal Procedure. Rule Change 2013(05) amends Rules 17 and 24 of the Rules of Criminal Procedure. Rule Change 2013(06) creates a new Rule 255 of the Rules of Civil Procedure regarding the Attorney Mentoring Program.

The changes to the Crim. P. rules are minor; a statute is updated in Rule 17, and Rule 24 specifies that there must be at least one alternate juror for cases charging Class 1, 2, or 3 felonies or cases implicating C.R.S. § 24-4.1-302(1) if requested by the defendant or the prosecution.

The addition of C.R.C.P. 255 recognizes the new Colorado Attorney Mentoring Program (CAMP), designed to help foster development of new lawyers or lawyers transitioning from civil service to private practice. The rule change details the goals of the program, discusses the services provided by CAMP, outlines responsibilities and necessary qualifications of the CAMP director, and discusses powers and duties of the CAMP director. As reported by Legal Connection, John T. Baker will be the first CAMP director.

For a complete list of the Supreme Court rule changes, and for more information about Rule Change 2013(05) and 2013(06), click here.

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Electronic Filing Rule Under C.R.C.P. 121 and Rule 305.5 Amended by Colorado Supreme Court

May 14, 2013 by Leave a Comment

On May 9, 2013, the Colorado Supreme Court issued Rule Change 2013(04). The changes affect C.R.C.P. 121, § 1-26, and Rule 305.5 of the Colorado Rules of County Court Civil Procedure.

The rule change deletes language from C.R.C.P. 121 and Rule 305.5 regarding addresses and contact information in the e-service database. The rule changes clarify that service must be made pursuant to C.R.C.P. 4 and 5, and delete the requirement that the serving party or serving party’s attorney must provide the best known address for each party served.

For a redline of the changes to C.R.C.P. 121, § 1-26, and Rule 305.5 of the Colorado Rules of County Court Civil Procedure, click here. For a complete list of the Supreme Court’s 2013 rule changes, click here.

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Colorado Supreme Court: Trial Court Erred by Failing to Balance Privacy Right with Need for Information in Discovery Dispute

April 16, 2013 by Leave a Comment

The Colorado Supreme Court issued its opinion in In re Gateway Logistics, Inc. v. Smay on Monday, April 15, 2013.

Privacy Interests—CRCP 26.

In this original proceeding brought under CAR 21, the Supreme Court concluded that the trial court abused its discretion by granting a motion to compel discovery without making findings of fact balancing defendants’ asserted privacy interest with plaintiffs’ need for the information sought, as required by In re District Court, 256 P.3d 687 (Colo. 2011). Accordingly, the Court made the rule absolute, vacated the portion of the trial court’s order compelling the discovery, and remanded the case to the trial court.

Summary and full case available here.

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Colorado Supreme Court Updates Rules of Criminal and Civil Procedure

March 12, 2013 by Leave a Comment

On March 7, 2013, the Colorado Supreme Court issued Rule Change 2013(03), amending Rules 5 and 7 of the Colorado Rules of Criminal Procedure. The changes to Rule 5, “Preliminary Procedings,” clarify language regarding the felony complaint, and adds language regarding waiver of the right to a preliminary hearing. The changes to Rule 7, “The Indictment and the Information,” discuss filing for preliminary hearings and set forth time limits. In addition, a subsection (i) was added, which provides time limits for requests to transfer cases to juvenile courts. A redline of the changes is available here.

The Supreme Court issued Rule Change 2013(02) on February 21, 2013, which changed Form 20 in the Appendix to Chapters 1 through 17A – Colorado Rules of Civil Procedure.

Rule Change 2013(01) was issued on February 8, 2013. Colorado Rules of Civil Procedure, Rule 16.2 and Rule 313, were amended with this rule change. The changes to Rule 16.2, “Court Facilitated Management of Domestic Relations Cases and General Provisions Governing Duty of Disclosure,” clarify that if an initial expert report is served early, the rebuttal report need not be submitted until 35 days prior to hearing. The changes to Rule 313, “Counterclaim and Cross Claim,” discuss remand to the county court if the counterclaim that caused removal to district court is dismissed.

All of the Supreme Court’s rule changes are available here.

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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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C.R.C.P. 45, “Subpoena,” amended by Colorado Supreme Court

October 26, 2012 by Leave a Comment

On Thursday, October 25, 2012, the Colorado Supreme Court released Rule Change 2012(16), which amends Rule 45 of the Colorado Rules of Civil Procedure. The rule change repeals and readopts Rule 45 with changes. The new rule is effective January 1, 2013.

The amendments to Rule 45 were adopted by the Court on Thursday, October 18, 2012.

Click here to review the changes to Rule 45.

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Colorado Supreme Court: Delay in Providing Notice to Co-Defendant Permissible Under Relation-Back Doctrine and C.R.C.P. 15(c)

October 23, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in In re Garcia v. Schneider Energy Services, Inc. on Monday, October 22, 2012.

Commencement of Proceedings—Notice—Relation Back—CRCP 15(c)

In this original CAR 21 proceeding, the Supreme Court reviewed the trial court’s grant of summary judgment after it found that seventy-one days was not a reasonable time for purposes of “relating back” an amended complaint under CRCP 15(c). Pursuant to Dillingham v. Greeley Publishing Company, 701 P.2d 27, 31 (Colo. 1985), the proper measure for relation back under CRCP 15(c) is the time between the filing date of the original complaint and the date when the party related back receives notice—in this case, 116 days. Accordingly, the trial court’s judgment was vacated.

Summary and full case available here.

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Colorado Court of Appeals: No Proper Basis for Writ of Attachment Since Defendants Did Not Counterclaim; Plaintiffs Not Entitled to Damages, Attorney Fees, or Costs

October 15, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Hiner v. Johnson on Thursday, October 11, 2012.

CRCP 102—Writ of Attachment—Counterclaim—Damages—Attorney Fees.

In this case pertaining to CRCP 102, plaintiffs David Hiner and Deelila Quick appealed the trial court’s order denying their request for damages, attorney fees, and costs against defendants Dr. Bruce Johnson and Dr. Michael King. The order was affirmed.

At the request of defendants, the trial court issued a writ attaching proceeds that had been obtained by plaintiffs in a settlement with a defendant who was not part of this appeal. Subsequently, the trial court, at plaintiffs’ request, discharged the writ.

Plaintiffs contended that the trial court erred in denying their request for damages, attorney fees, and costs as a result of defendant’s wrongful request for a writ of attachment. CRCP 102(a) only authorizes a court to issue a writ of attachment for the party bringing the claim, which would be a plaintiff or a defendant who has asserted a counterclaim. Here, although defendants did not assert a counterclaim, they requested the writ of attachment. Because defendants did not assert a counterclaim, CRCP 102(a) did not provide a basis for the court to issue a writ of attachment. As a result, the writ of attachment was improperly issued, and the trial court properly discharged the writ under CRCP 102(w). Plaintiffs are not entitled to damages, attorney fees, or costs in this case because (1) CRCP 102(d) only authorizes an award of costs or damages to the plaintiff if a defendant who has asserted a counterclaim and is not entitled to an attachment; and (2) CRCP 102(n)(2) only authorizes an award of damages to a plaintiff if the defendant who has asserted a counterclaim does not prevail at such a hearing.

Summary and full case available here.

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C.R.C.P. 120.1, “Order Authorizing Expedited Sale Pursuant to Statute,” Amended Effective September 20, 2012

October 2, 2012 by Leave a Comment

On Tuesday, October 2, 2012, the Colorado Supreme Court released changes to Colorado Rule of Civil Procedure 120.1, effective September 20, 2012. The changes detail time frames in which expedited hearings must be set pursuant to section 38-38-903, C.R.S. Requirements for personal service are also detailed.

The amendments to C.R.C.P. 120.1 were adopted by the court September 20, 2012, effective immediately.

Click here to review the redline of the changes to C.R.C.P. 120.1, outlined as Rule Change 2012(13).

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Colorado Court of Appeals: Corporation Incorporated in Another State May Be Considered “Citizen” of This State for C.R.C.P. 102 Purposes

August 22, 2012 by Leave a Comment

The Colorado Court of Appeals issued its decision in Old Republic National Title Insurance Co. v. Kornegay on August 16, 2012.

Prejudgment Attachment.

Roger Kornegay appealed three trial court orders sustaining a prejudgment attachment obtained by Old Republic National Title Insurance Company (Old Republic) in connection with its pending civil action against him. The orders were affirmed.

Old Republic paid its insured $250,000 following the insured’s purchase of property from Kornegay that Kornegay did not own. Old Republic then sued Kornegay, alleging that its losses were the result of a fraud scheme he had perpetrated. Old Republic also filed an ex parte motion for a prejudgment writ of attachment pursuant to CRCP 102.

Old Republic’s investigator, Pollock, submitted a supporting affidavit and, on that basis, Old Republic alleged there was “a real threat that [Kornegay] or individuals he is close to will further transfer or hide his assets,” thereby rendering execution unavailable in the event of a judgment against him. The trial court granted the motion and issued the writ without requiring Old Republic to post a bond.

Old Republic served the writ, along with a writ of continuing garnishment in aid of attachment, on four banks, several Colorado county treasurers, and the clerk and recorder of El Paso County, where Kornegay owned real property. Kornegay, who was incarcerated in Nebraska, was served with copies.

Through counsel, Kornegay moved to dismiss and discharge the attachment and quash the garnishment. He also filed a traverse, a counterclaim for wrongful attachment, and a notice of a claimed homestead exemption. In three orders entered the same day, the trial court denied Kornegay’s motions and dismissed his counterclaim. Kornegay appealed.

Kornegay did not challenge the sufficiency of the Pollock affidavit to establish the grounds for attachment under CRCP 102. Rather, he argued that the attachment was wrongful because (1) Old Republic is not a Colorado resident and thus cannot avail itself of the remedy of prejudgment attachment; (2) the procedural requirements of CRCP 102 (d), (h), (i), and (n) were not met; (3) the trial court should not have sustained the attachment without addressing his homestead exemption claim; and (4) the trial court erred in dismissing his counterclaim for wrongful attachment. The Court of Appeals found no grounds for reversal.

Old Republic is registered to conduct business in Colorado and has three offices in the state, but its principal place of business is in Minnesota. Colorado courts have not addressed whether a foreign corporation authorized to conduct business in Colorado and having offices here may be considered a “resident of this state” for purposes of CRCP 102. The Court looked to cases from other jurisdictions for edification.

A corporation generally is considered to be domiciled in, and a citizen of, its place of incorporation, but it may for some purposes be considered a resident of more than one state. The Court found that Old Republic is a “resident of this state” for purposes of CRCP 102. It has a presence (three offices) and “no present intention of definite and early removal.” It therefore may avail itself of the remedy of prejudgment attachment.

As to Kornegay’s arguments regarding the other sections of CRCP 102, the Court held that use of a private process server to serve the writ on a defendant incarcerated in another state complied with the rule and that it wasn’t necessary for the sheriff to serve the writ. As to CRCP 102(h), the tax liens were security interests in real property, and serving writs of garnishment in aid of attachment on the treasurers of the counties where the property was located satisfied the requirements of the rule.

The failure to post a bond was not error because Old Republic offered to post a bond in a nominal amount if required to do so, and the trial court waived bond. Kornegay argued this was not waivable; Old Republic replied that the court effectively set the bond at zero. The Court found this an appropriate exercise of the court’s discretion, given the resources of Old Republic to satisfy any damages or costs Kornegay might incur if the attachment was wrongful.

Kornegay argued that CRCP 102(n) was not complied with because no hearing was held on his traverse. The Court found that Kornegay did not file an effective traverse, so no hearing was required. The traverse was ineffective because it was not supported by an affidavit.

The Court also found that Kornegay’s claimed homestead exemption was properly rejected because neither Kornegay nor his wife resided at the subject property. Accordingly, the orders were affirmed.

Summary and full case available here.

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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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Service, Process, and Electronic Filing Rules Amended by Colorado Supreme Court

July 3, 2012 by Leave a Comment

On July 2, 2012, the Colorado Supreme Court released numerous updates to the Colorado Rules of Civil Procedure and the Colorado Rules of County Court Civil Procedure dealing with process, service of process, and the filing of pleadings. Amendments were made to the following rules:

  • CRCP Rule 4 – “Process”
  • CRCP Rule 5 – “Service and Filing of Pleadings and Other Papers”
  • CRCP Rule 121, Section 1-26 – “Electronic Filing and Serving System”
  • CRCCCP Rule 304 – “Service of Process”
  • CRCCCP Rule 305.5 – “Electronic Filing and Serving”

These amendments were adopted on June 21 and are effective immediately.

Click here to review the red line changes to these civil procedure rules, outlined as Rule Change 2012(10).

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