Rule 16 Revisited: Results of the Cba Court Reform Committee Survey
| Publication year | 1991 |
| Pages | 1365 |
| Citation | Vol. 20 No. 7 Pg. 1365 |
1991, July, Pg. 1365. Rule 16 Revisited: Results Of the CBA Court Reform Committee Survey
More than 200 members of the Colorado Bar Association responded to the CBA Court Reform Committee's survey on C.R.C.P. Rule 16 problems and solutions. Rule 16 was amended effective September 1, 1990.(fn1) The survey was mailed to members of the litigation and judiciary sections and was printed in The Colorado Lawyer [19 The Colorado Lawyer 632 (April 1990)]. This report summarizes data gathered in mid-1990, and makes recommendations about Rule 16.
The number of responses to the survey was small and, therefore, the results are not statistically valid. In addition, not all lawyers answered all questions. However, it is evident from the responses that Rule 16 poses some common problems for all lawyers practicing under it, and there are practical solutions to offer. As stated in the Rule, the purpose of Rule 16 is to define and clarify the responsibilities of and options available to the parties and the court to facilitate a fair and speedy resolution of civil disputes with a minimum of inconvenience and expense.(fn2)
The survey addressed problems faced by practitioners under Rule 16 as to time, discovery, the content of the disclosure certificate, supplementation and compliance.
Over 60 percent of the lawyers referred to the Denver District Court as their court of most experience. Other urban area courts were identified by 22 percent. About 17 percent indicated district courts in smaller cities or rural areas as the court of most experience.(fn3)
Out of 210 respondents, 170 stated that more than 70 percent of their practice was in civil litigation. Only 26 respondents stated that less than 50 percent of their practice was in civil litigation.
There was great diversity in the length of practice, from less than one year up to 40 years. The largest group of respondents (37 out of 210) had practiced between 6 and 10 years.(fn4)
Many lawyers stated the number of cases they handled under Rule 16, and the number of disclosure certificates they had filed:
There was broad exposure to Rule 16 among the majority of respondents.
The data are from a well-rounded group of practitioners with a variety in experience and exposure to various courts.
Respondents were asked to indicate the severity and frequency of specific time problems. There was no strong consensus that time problems were severe or of great frequency. However, some interesting comments evidence problems experienced by many. Several respondents noted that due dates are not realistic for large cases, and that they need flexibility for unusual circumstances. Other practitioners
Numerous respondents commented that it is extremely difficult to anticipate and list all lay and expert witnesses, and exhibits, expected to be produced at trial. Some noted that it is risky to rely on the supplemental certificate for additional endorsements. Others noted that the disclosure certificate is often due before significant depositions and motions are concluded.
Certain comments concerning the determination of the "at issue" date deal with questions that have not been addressed specifically in the Rule. Some practitioners asked if the "at issue" date changes for all parties when pleadings are amended or when a new party is added. Other practitioners noted that some courts have indicated the "at issue" date occurs even when Rule 12 motions are filed. Others noted problems when a defendant brings a third-party complaint but fails to get service of that complaint. Some lawyers wanted the due date to be counted back from the trial date only.
Practitioners provided extensive comments about accelerated docket courts and quick trial settings. Frequently, parties under the pressure of quick trial settings will provide generic endorsements of experts, exhibits, and theories in their disclosure certificates. Many noted that even though the Rule requires great specificity, often extremely general disclosure certificates will be filed while practitioners rely on supplementation to provide the details at a later date. Many practitioners noted that there had been few sanctions in these situations.
Some commented that expensive discovery is forced prematurely. Practitioners noted that disclosure certificates are sometimes due before the required information can be fully collected and stated. A major concern was...
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