Dispositive Motions Practice in Colorado Best Practices and Challenges amid the Pandemic, 1120 COBJ, Vol. 49, No. 10 Pg. 24

PositionVol. 49, 10 [Page 24]

49 Colo.Law. 24

Dispositive Motions Practice in Colorado Best Practices and Challenges amid the Pandemic

Vol. 49, No. 10 [Page 24]

Colorado Lawyer

November, 2020



Colorado's 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 matters.[1] Courts continue to issue orders based on new public health information and new court operations protocols. Simultaneously, courts are now facing a backlog of cases filed pre-pandemic while also preparing for newly filed or soon-to-be-filed lawsuits.

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

In this 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),[3] which examined civil dispositive motions practice by conducting empirical research and identifying opportunities for improvement and innovation. The IAALS report contains more than just a collection of best practices; it calls for the bench and bar to actively engage in a more targeted and focused approach to dispositive motions to better serve clients and the system. Courts and attorneys are encouraged to review the report’s recommendations, along with the judges’ practice standards and suggestions below, and rethink dispositive motions practice in civil litigation.

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...

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