BY R. BROOKE JACKSON AND JOHN L. WHEELER, WITH CONTRIBUTIONS BY BROOKE H. MEYER
federal and state courts continue to adapt to challenges
during the COVID-19 pandemic that are rooted in preserving
constitutional rights and protecting public health and
safety. Starting in March 2020, both federal and state courts
in Colorado issued orders continuing civil and criminal
trials, allowed telephone hearings and video conferences in
lieu of in-person hearings, and prioritized essential
Courts, judges, and attorneys have a unique opportunity right now to seize on federal and state courts' ability to embrace change quickly and to make the civil litigation process more efficient for all. While past civil reform efforts emphasized proportionality in discovery and early case management rule changes, discovery is only part of a civil case's life cycle. Motions practice—as much as discovery—plays a critical role in making the civil process more efficient and less costly, especially now that court resources are at capacity. Dispositive motions, when used appropriately, can save courts and litigants time and money. But when attorneys file motions reflexively and courts do not thoughtfully manage or timely rule on them, such motions inject additional cost and delay into court systems across the country, ultimately undermining access to justice for all.2
article, a federal district court judge and a state district
court judge share advice for attorneys navigating dispositive
motions practice. Much of this advice is drawn from a 2019
report from the Institute for the Advancement of the American
Legal System (IAALS report),
Judge R. Brooke Jackson, US District Court for the District of Colorado
Motions to dismiss and motions for summary judgment filings have become routine in most civil cases, whether or not there is a realistic possibility of success. Motions practice can be a critical part of the prosecution or defense of a case. It can also be cause for delay, a burden on the court, and costly to parties.
Motions to Dismiss
The replacement of “notice” pleading required by Federal Rule 8(a) with the Twombly/Iqbal “plausibility standard”4 has resulted in a common trend I have witnessed on the federal bench: motions to dismiss that are quickly followed by a motion to amend the complaint with a proposed amended complaint attached that either eliminates claims or amplifies allegations of fact—or both. These motions to dismiss rarely result in a complaint being fully dismissed with prejudice but commonly create unwarranted filings that largely consume judges’ and law clerks’ time.
Effective December 1, 2019, I revised my practice standards to try to improve dispositive motions practice in civil cases by incorporating the IAALS recommendations for making the pretrial dispositive motions process more efficient.
5To encourage communication between opposing counsel, I request that the parties meet and confer in good faith and a meaningful way before filing a motion to dismiss. While in-person meetings are at least temporarily not feasible, I strongly encourage counsel to pick up the phone, or even better, have a videoconference call, to discuss:
■ the issues that the movant intends to raise in the motion to dismiss;
■ whether the parties could resolve all or some of those issues without a motion;
■ the reasons that the movant believes those issues are legally meritorious;
■ the reasons that the non-movant...