At a recent Continuing Legal Education Seminar held on December 2, 2011, Chief Judge Vincent Phelps of the 17^th Judicial District indicated that he believes that cases should take around eight months to get to trial under the new Colorado Civil Procedure Rules for “Business Actions.” He further indicated that trial dates scheduled for cases governed by the new Pilot Rules will take precedence over any conflicting trial dates relating to non-Pilot Rule cases.

I would not be surprised if smart plaintiff attorneys are purposefully waiting to file their new cases until on or after January 1, 2012. In that way, they can take advantage of the new Pilot Rules and of defendants who are not aware of them or are in denial about how quickly cases will proceed under them. Time will tell

Background Facts of Colorado Pilot Project Blog

Beginning January 1, 2012, many of the most densely populated counties in Colorado (Denver, Jefferson, Gilpin, Adams and Arapahoe Counties) will institute a pilot project involving new rules of civil procedure for “Business Actions” filed on or after January 1, 2012. The definition of “Business Actions” under the pilot project is quite broad and includes, among other things, all breach of contract actions, business tort actions, actions for statutory and/or common law violations where the breach or violation is alleged to arise out of business dealings and all professional malpractice actions with the exception of medical malpractice.

The new pilot project rules are designed to make the resolution of such actions cheaper and faster. They are important for Colorado trial attorneys to be aware of since the rules dramatically quicken the pace and limit the scope of the discovery process. As a result of the procedural changes, litigants must immediately take action to identify and narrow disputed issues at the earliest stage of litigation and can no longer rely upon procedural maneuvers or motions for extension of time to delay the filing of answers and the making of mandatory exhaustive disclosures. For example, continuances and extensions (even those that are stipulated to) are strongly disfavored and shall be denied by the Court upon receipt and without waiting for a response. In addition, the filing of a motion to dismiss does not eliminate the need to also file an answer or disrupt or interfere with the new pleading and disclosure requirements.

Plaintiffs are given 21 days after service of the complaint to file a mandatory disclosure with the court listing all persons, information and documents supportive or harmful to their claims and to provide a privilege log. Defendants are given 21 days after the filing of Plaintiff’s mandatory disclosure to file their answer and 21 days after that to file mandatory disclosures and to provide a privilege log. Both sides then have an ongoing duty to promptly supplement their disclosures, and unless the court makes a specific determination that failure to disclose in a timely and complete manner was justified or harmless, the failure to timely disclose shall result in one or more of the following: (a) a denial of the right to use the information not disclosed for any purpose; (b) a denial of the right to object to the admissibility of the evidence; (c) a dismissal of all or part of any claim or defense; (d) assessment of attorneys fees and costs; and (e) any other sanction the court deems appropriate.

Within 14 days of the filing of an answer, the parties shall meet and confer concerning reasonable preservation of all relevant documents and things, including any electronically stored information. No later than 49 days after the answer is filed an initial case management conference is to be scheduled. At the conference, limitations on the scope and type of discovery are implemented based upon the amount in controversy and the complexity and importance of the issues at stake. The limitations cannot be changed without a showing of good cause. In no event are expert depositions allowed. Instead, the substance of each expert’s direct testimony shall be fully addressed in the expert’s report and experts shall be limited to testifying on direct examination about matters disclosed in reasonable detail in their written reports.

Are the new Colorado Rules of Civil Procedure for “Business Actions” likely to work and/or are they working to make the resolution ...

Are the new Colorado Rules of Civil Procedure for “Business Actions” likely to work and/or are they working to make the resolution of disputes cheaper, faster and more just?

The new Colorado Pilot Rules of Civil Procedure contemplate that “Business Actions” will move along cheaper and faster because judges are instructed to provide active case management. In my view, the Colorado Judicial System is too overworked and underfunded to provide active case management. It is the inability of overworked and underfunded judges to make timely discovery related rulings that has led to the expense and delay currently being experienced. Even though active case management is unlikely to happen, the resolution of disputes will nonetheless occur faster and cheaper because the Pilot Rules force the discovery process to move along even when judges are not able or willing to make timely discovery related rulings. The big question is whether the Pilot Rules will make the process more just? Whether the new rules will make the process more just will depend upon whether judges strictly enforce the mandatory disclosure rules at or about the time of trial. If the disclosure requirements are strictly enforced (by denying the right to use information at trial that is not timely or adequately disclosed), the rules may lead to more just outcomes. If the disclosure rules are not aggressively enforced, the new rules could easily lead to gross injustice. Let’s hope that judges have the time and inclination to aggressively enforce the disclosure requirements once cases under the new Pilot Rules get to trial.