Common Pitfalls in Complying With C.r.c.p. 16 and 26 When Drafting Case Management Orders

• Publication year: 1997
• Pages: 39
• Citation: Vol. 26 No. 3 Pg. 39

26 Colo.Law. 39 Colorado Lawyer 1997.

1997, March, Pg. 39. Common Pitfalls in Complying with C.R.C.P. 16 and 26 When Drafting Case Management Orders

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Vol. 26, No. 3, Pg. 39

The Colorado Lawyer
March 1997
Vol. 26, No. 3 [Page 39]

Departments
Judges' Corner
Common Pitfalls in Complying with C.R.C.P. 16 and 26 When Drafting Case Management Orders
by Jane A. Tidball

Now that the new rules of civil procedure governing case management have been in effect for over two years, the practical challenges of complying with the new rules are becoming apparent. As a District Court Magistrate in the Twentieth Judicial District, I have the responsibility of entering all of the case management orders filed in Boulder District Court. As a result, I have the rather dubious distinction of having reviewed thousands of case management orders. Although adherence to the new rules is increasing as attorneys become familiar with the requirements of the rules many case management orders still fail to comply with the rules. This article highlights some areas of concern for practitioners

Case Management Orders

As a preliminary matter, the parties are required to file a case management order in all cases other than "domestic relations, juvenile, mental health, probate, water law forcible entry and detainer, C.R.C.P. 120 and other similar expedited proceedings unless otherwise ordered by the court. . . ."1 The case management order must be filed "no later than 45 days after the case is at issue."2 The case is "deemed at issue at such time as all parties have been served and all pleadings permitted by C.R.C.P. 7 have been filed or defaults or dismissals have been entered against all non-appearing parties, or such other time as the court shall direct."3 If a case management order is not timely filed or an extension timely requested, many courts will issue a show cause order for failure to comply.

The form of the case management order is set forth with specificity in Rule 16, which contains certain mandatory language and captions. In summary, Rule 16 provides the following form for a case management order:

I. -TRIAL SETTING. (details regarding the trial date and length)

II. -DISCLOSURE. (status and obligations regarding Rule 26(a)(1) and 26(a)(2) mandatory disclosures)

III. -IDENTIFICATION OF PERSONS, DOCUMENTS AND TANGIBLE THINGS. (date by which witnesses and exhibits will be identified)

IV. -DISCOVERY SCHEDULE. (specifics regarding the timing and extent of discovery and certification that counsel have advised their clients of the cost of discovery)

V. -TIME TO JOIN ADDITIONAL PARTIES AND AMEND PLEADINGS. (schedule of applicable deadlines)

VI. -PRETRIAL MOTIONS. (statement of pending and anticipated motions)

VII. -SETTLEMENT. (affirmation of settlement discussions)

VIII. -OTHER MATTERS. (any other matters that should be brought to the attention of the court)

Discovery Issues

Some provisions of the new rules have engendered a great deal of confusion among well-intentioned lawyers attempting to draft case management orders. The greatest area of confusion appears to be the provision of Rule 26 that limits discovery except on an order for good cause shown. The Rules Committee believed that, because of early automatic disclosure, the need for discovery would be substantially reduced or eliminated. Accordingly, Rule 16 presumptively allows the depositions of each adverse party and of two other persons The Rule further provides that, without a...