Randy Barnhart

Colorado Simplified Procedure - Devil is in the Discovery

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. 

New Colorado Appellate Rule - Interlocutory Review!

A new rule was recently added to the Colorado Appellate Rules which has the potential to get to the right result while a case is still at the trial level. Original petitions to the Colorado Supreme Court under Rule 21 is now not the only way to get the trial court on the right track. The thinking behind the new rule is innovative and should improve the delivery of justice and enhance the rule of law.

Rule 4.2 Interlocutory Appeals in Civil Cases

(a) Discretionary Interlocutory Appeals. Upon certification by the trial court, or stipulation of all parties, the court of appeals may, in its discretion, allow an interlocutory appeal of an order in a civil action. This rule applies only to cases governed by C.R.S. 13-4-102.1.
 
(b) Grounds for Granting Interlocutory Appeal. Grounds for certifying and allowing an interlocutory appeal are:

(1) Where immediate review may promote a more orderly disposition or establish a final disposition of the litigation; and

(2) The order involves a controlling and unresolved question of law. For purposes of this rule, an “unresolved question of law” is a question that has not been resolved by the Colorado Supreme Court or determined in a published decision of the Colorado Court of Appeals, or a question of federal law that has not been resolved by the United States Supreme Court.
 
(c) Procedure in the Trial Court.The party seeking to appeal shall move for certification or submit a stipulation signed by all parties within fourteen days after the date of the order to be appealed, stating that the appeal is not being sought for purposes of delay. The trial court may, in its discretion, certify an order as immediately appealable, but if all parties stipulate, the trial court must forthwith certify the order. Denial of a motion for certification is not appealable.
 
(d) Procedure in the Appellate Court. If the trial court certifies an order for an interlocutory appeal, the party seeking an appeal shall file a petition to appeal with the clerk of the court of appeals with an advisory copy served on the clerk of the trial court within fourteen days of the date of the trial court’s certification.

New FRCP Effective Today - We Keep on Top of Things Here

Attention Trial Lawyers - Rule 26 Amendment Affects Expert Witnesses

The amendments discovery and expert witnesses procedures take effect December 1, 2010. This should lower costs of litigation! See more here.

Among other amended Rules effective December 1, 2010, are:

• Bankruptcy Rule 1007: shortens time for a debtor to file a list of creditors after the entry of an order for relief in an involuntary case, and extends the time for individual Chapter 7 debtors to file a statement of completion of course in personal financial management.
• Bankruptcy Rule 1019: with some exceptions, a new time period to object to a claim of exemption arises when a case is converted to Chapter 7 from Chapter 11, 12, or 13.
• Civil Rule 56: makes procedures for presenting and deciding summary-judgment motions more consistent across districts, and closes the gap that developed between the Rule text and actual practice.
• Criminal Rule 3.1: clarifies standard and burden of proof regarding the release or detention of a person on probation or supervised release.
• Evidence Rule 804: extends corroborating circumstances requirement to all declarations against penal interest offered in criminal cases.

For complete information on the new Federal Rules effective December 1, visit the Federal Rulemaking website.