Lawyers and judges have long been concerned with the cost and delay of civil litigation, which to a significant extent results from pretrial “discovery” and cumbersome procedural requirements. While these are justified in larger, more complex cases, too often the cost of bringing-or defending against-claims involving less than $100,000 approaches the amount at issue, and getting to trial can take years. To address the problem, the Colorado Supreme Court recently adopted new Rule 16.1, effective for civil cases filed in state district courts beginning July 1, 2004.
Rule 16.1 states its purpose as being “to provide maximum access to the district courts in civil actions; to enhance the provision of just, speedy, and inexpensive determination of civil actions; to provide the earliest practical trials; and to limit discovery and its attendant expense.” Sounds good. But how? Rule 16.1 explains in a useful overview of its important provisions:
Simplified Procedure generally applies to all civil actions, whether for monetary damages or any other form of relief . . . , unless a party timely and properly elects to be excluded from its provisions. This Rule normally limits the maximum allowable monetary judgment to $100,000 against any one party. This Rule requires early, full disclosure of persons, documents, damages, insurance, and experts, and early, detailed disclosure of witnesses’ testimony, whose trial testimony is then generally limited to that which has been disclosed. Normally, no depositions, interrogatories, document requests, or requests for admission are allowed . . .
When Is Simplified Procedure Available?
The rule “generally applies to all civil actions.” However, it does not apply to cases in which any party seeks a monetary judgment against any other party of more than $100,000, and it does not apply to certain specialized types of cases, such as divorce, probate and water cases. The rule does apply, however, to cases seeking non-monetary relief such as declaratory or injunctive relief, even if the stakes exceed $100,000. For example, a party to a dispute about a $500,000 contract may file a case requesting the court to make a binding declaration of the parties’ respective rights and obligations under the contract, and that case would be subject to the rule. Also, a party with a claim that exceeds $100,000 by a modest amount, or who believes that $100,000 is as much as it will be able to collect from the adverse party regardless of the judgment amount, may elect to forego trying to recover more than $100,000 in return for the cost and time savings promised by the rule.
Importantly, parties can opt out of or into Simplified Procedure, regardless of whether more than $100,000 is being sought. To opt out, a party need only file a simple written notice by a deadline early in the case stating that the party elects to be excluded from Simplified Procedure, and the case no longer will be subject to the rule and instead will be governed by the traditional rules of procedure. To opt in to Simplified Procedure in a case where a judgment in excess of $100,000 is being sought, all parties must consent early in the case; but if they do, the case will proceed under Simplified Procedure and the $100,000 limitation on judgments will not apply. This may be appropriate in a case where the dollar amount claimed exceeds $100,000 but the issues are straightforward.
How Does It Work?
Simplified Procedure does away with discovery depositions and formal written discovery. Instead, the parties identify witnesses and produce relevant documents early in the case and under oath. Then, beginning 90 days before trial, each party provides “a detailed statement of the expected testimony for each witness the party intends to call at trial.” At trial, those witnesses then will be “limited to testifying on direct examination about matters disclosed in reasonable detail in the written disclosures.”
The parties are free to engage in voluntary discovery in addition to that required by the rule. Thus, the parties to a $500,000 case might agree to opt into Simplified Procedure with the agreement that they will take depositions of key witnesses, in order to get a faster trial date and the reduced expense of Simplified Procedure. However, “disputes relating to such agreed discovery may not be the subject of motions to the court,” nor may problems scheduling such discovery “serve as the basis for a continuance of the trial.”
Except for the procedural and discovery changes made by the rule, the most significant of which are noted in this article, a case under Simplified Procedure is subject to the same pretrial and trial procedures as any other case. Motions for summary judgment and other pretrial rulings still may be filed, for example, and the trial is conducted like any other.
What are the Benefits?
The principal benefits of Simplified Procedure are reduced expense and a faster resolution of the case. Regarding the latter, Rule 16.1 provides in a section titled “Expedited Trials” that “motions and trials in actions subject to Simplified Procedure . . . should be given early trial settings, hearings on motions, and trials.”
Will This Work?
Time will tell. There is reason to be skeptical, as innovations like the new Rule 16.1 have been tried in the past with mixed results.
But there is more reason for hope. Finding a cost-effective way to resolve less complex yet important disputes in a timely fashion is a challenge that has eluded the civil justice system for some time. Rule 16.1 is a carefully conceived, serious effort to meet that challenge.
Ed Gleason is special counsel in the Colorado Springs office of Rothgerber Johnson & Lyons LLP, where his practice emphasizes civil and commercial litigation and arbitration. He can be reached at (719) 386-3007 or by e-mail at firstname.lastname@example.org.