In a recent report by the Institute for the Advancement of the American Legal System, headquartered here in Denver, we learn the following:
"According to respondents, Rule 16.1 is not frequently used due to the existence of disincentives for both plaintiffs and defendants. Moreover, there is a certain degree of dissatisfaction with practice under and enforcement of the Rule, whether perceived or real. Responding judges and attorneys commented on the risk of limiting a case at an early point, before the fact and issues are sufficiently understood.
From the plaintiff's perspective, it is difficult to limit recoverable damages at the outset, particularly when the limit includes attorney fees and punitive damages.
From the defendant's perspective, exposure to $100,000 in liability is viewed as too high to consider defending the claims without discovery.
Commenting attorney respondents commonly complained that disclosures are not an adequate substitute for discovery tools, due to the fact that disclosures by the opposing side can be cursory or evasive. In addition, respondents believe that courts do little to enforce disclosure obligations and rarely exclude evidence that was not properly disclosed.
It was also noted that the process may not actually be expedited, depending on the court's docket.”
Read the entire report here.
The failure of courts to enforce disclosure obligations and impose discovery sanctions is, in my view, the primary reason why the simplified procedure will remain marginally useful at best.