CO Counties to Implement Pilot Project, Could Signal Nationwide Changes

ColoradoOn January 1, 2012, the Colorado Supreme Court will begin a "Pilot Project" implementing new Rules for Civil Procedure in certain cases filed in district courts in Jefferson, Denver, Arapahoe (1) and Adams Counties. According to the Colorado Supreme Court these four counties will be asked to apply new civil procedure rules to cases involving "business claims."

This pilot project has roots. The American College of Trial Lawyers formed a blue ribbon task force to prepare a white paper on the growing trend that "the civil pretrial process [was] unnecessarily complex, lengthy, and expensive." The ACTL Task Force, full of top notch litigation lawyers created proposals that eventually morphed into the Colorado Pilot Project. As far as my research reveals, Colorado is one of the first states to adopt this specific program.

This blog entry is written primarily to alert Colorado practitioners to be aware of the new rules because a failure to follow them may result in a claim being made against you for losing your client’s claim on a technicality. Secondly, it is written as a "heads up" for all U.S. lawyers to be ready for the potential change in your locale so that you will be enabled to better represent your client and manage risk for your practice.

A basic premise is the rule of proportionality. According to defense lawyers, it is usually too expensive to try moderate and low value claims. Thus, businesses and insurance companies settle more claims with low severity but some risk. On the other hand, the plaintiff’s lawyers believe they will obtain bigger or larger verdicts if they are not overwhelmed with pretrial discovery.

Things of note:

• Cases “included” in the new Rules include business cases and malpractice cases (e.g., claims against attorneys). Cases “excluded” are personal injury cases, medical malpractice claims and construction defect cases. More specific definitions of included and excluded cases are in Appendix A to the Rules.

• There are only 10 Rules, with subparts. They incorporate, when needed, all of the extant rules of civil procedure. A new Civil Cover Sheet will be required and must declare whether the case is included or excluded in the new Rules. (2) 

• The rule of 21 applies. Answers are due 21 days after the Plaintiff serves the Complaint. The Plaintiff must also file and serve Rule 26 Disclosures-modified by the Pilot Program including a statement whether the disclosed individual possesses information that “is supportive or harmful.” Defendants Rule 26 Disclosures are due 21 days after Defendant’s Answer. A motion to dismiss can be filed but an answer must also be filed. A motion to dismiss does not stay the case.

• The Complaint “should” and the Answer must provide specific facts that might be far more detailed then the notice pleading you typically see. The description of witnesses must include what information the person has regarding the claim and defenses, supportive or harmful.

• Meet and confer is a must. No later than 21 days after the answer is filed, counsel must meet and discuss concepts like proportionality and the preservation of electronically stored information. Approximately one month after the meet and confer, the court shall hold an initial case management conference. Once assigned to a specific judge the case will stay with the judge through final resolution or disposition.

• NO EXTENSIONS WILL BE GRANTED, INCLUDING STIPULATED EXTENSIONS, ABSENT EXTRAORDINARY CIRCUMSTANCES. (3)

• A case management conference with the Judge must occur within 49 days after the Answer. A proposed CMO must be submitted to the Judge 7 days before the conference.

• One expert per party, per issue.

Practitioners in the aforementioned Colorado counties are cautioned to read and prepare their own compliance sheet. The word “SHALL” appears in the Pilot Project rules on dozens of occasions. (4) The penalties for non-compliance are extreme, including attorney fees and striking of trial witnesses and exhibits. The greatest concern for litigation lawyers is that they can be sued if a mistake is made complying with the Pilot Project.

This blog entry is but a summary. You will need to read the Rules for more detailed information for compliance.

Colorado practitioners can contact me at Montgomery Little & Soran, PC to discuss these changes and applications to claims filed in 2012: clittle@montgomerylittle.com.

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1. The Honorable J. Mark Hannen and the Honorable Charles M. Pratt will be assigned all of these cases in Arapahoe County.
2. At the time of this blog entry, the civil cover sheet is not yet approved. However, the proposed CMO and Expert disclosures can be found here.
3. According to trial courts destined to hear these cases, hell must be frozen before even a stipulated extension will probably not even be considered. Clearly, this may tip the hat in the plaintiff’s favor but the converse will be that a plaintiff who omits a fact or issue may be forever barred from raising that issue if it was not properly raised the first time.
4. Oddly enough, the initiating complaint “should,” but not “shall,” plead all material facts that support the claim. The reader is cautioned to study the Pilot Program Rules to make certain a simple mistake does not lead to a claim.

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