Revised Rule 16.1 Makes Simplified Procedure Mandatory for Most Cases, 0918 COBJ, Vol. 47, No. 8 Pg. 21

• Author: RICHARD P. HOLME, J.
• Position: Vol. 47, 8 [Page 21]

47 Colo.Law. 21

Revised Rule 16.1 Makes Simplified Procedure Mandatory for Most Cases

Vol. 47, No. 8 [Page 21]

The Colorado Lawyer

September, 2018

August, 2018

THE CIVIL LITIGATOR

RICHARD P. HOLME, J.

CRCP 16.1's simplified procedure/or district court civil cases up to $100,000 provided the automatic right to opt out of its restrictions without cause or justification. As of September 1, 2018, that right no longer exists. This article discusses the recent revisions to Rule 16.1.

In 2004, the Colorado Supreme Court adopted CRCP 16.1, Simplified Procedure for Civil Actions (Simplified Procedure). Its purpose was to significantly reduce the cost of litigation for claims up to $100,000 and to increase access to the judicial system for most persons. Lawyers who used the Simplified Procedure and judges who saw it in operation strongly approved of it.¹ However, because Simplified Procedure was voluntary and easy to avoid, lawyers in a large majority of applicable civil cases opted out of using it.²

Although parties were not required or asked to give a reason for opting out of Simplified Procedure, attorney surveys and analyses of court dockets revealed several reasons for opting out, including (1) agreeing to limited discovery might expose a lawyer to malpractice claims; (2) the Rule banned any depositions or opportunities to observe and question adversaries before trial; and (3) the $100,000 limit had to include contractual or statutory claims for attorney fees.³ (Rarely admitted were the additional reasons that some clients believe the use or threat of excessive discovery will discourage potential claimants or at least force better settlements, or that many lawyers have a general distaste for new and different procedures that affect the way they are accustomed to handling cases.^[4] )

The Supreme Court recently made significant revisions to Simplified Procedure.⁵ These revisions were designed partly to address some of the objections to original Rule 16.1 and partly to make Simplified Procedure more widely useful in advancing the Supreme Court's goals to cut costs and delays and thus increase access to justice, especially in smaller dollar amount lawsuits. The newly revised CRCP 16.1 applies to most normal civil cases⁶ filed in district courts on or after September 1, 2018. Specifically, it automatically applies to cases seeking damages of not more than $100,000, unless a court approves a motion to exclude the case from the limitations of Simplified Procedure.⁷ Parties or their attorneys will no longer be able to simply opt out of the provisions of revised Rule 16.1 without explanation or justification. Further, limited discovery and depositions will now be available to the parties to supplement mandatory disclosures. The $100,000 lid on claims subject to Simplified Procedure will be determined without including allowable attorney fees. Also, the preexisting cap on possible awards for damages has been removed.

Aside from those significant changes, most of the provisions of revised Rule 16.1 remain largely unchanged. This article focuses on the significant new provisions in Rule 16.1. It does not dwell on the unchanged details of Rule 16.1, which were discussed when the Rule was originally adopted.⁸

History of Rule 16.1

The last decade has seen a national firestorm of both state and federal efforts to institute rules changes that give teeth to Rule of Civil Procedure l's mandate that rules be "construed, administered and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." Colorado, however, had already taken steps to implement that goal. In 2000, Colorado instituted a pilot project to test the essential provisions of Simplified Procedure.^[9] Because this pilot rule was applicable in only two courts, it was voluntary, to avoid potential equal protection problems. Automatic exclusion from Simplified Procedure was allowed for any party that desired to "opt out" of the test procedures in those courts.¹⁰ However, the pilot case judges encouraged attorneys to participate rather than to opt out, and with this encouragement, most smaller cases participated in the pilot project.

Based on the results of the pilot project over three years, in 2004 the Colorado Supreme Court adopted CRCP 16.1, which was essentially identical to the pilot project.^[11] Because of the newness of the concepts and effects of Simplified Procedure, Rule 16.1 retained the voluntary opt-out provision.

Although Rule 16. l's rationales were detailed in a 2004 Colorado Lawyer article,¹² briefly, they boil down to an attempt to control litigation costs—largely discovery costs, which have grown increasingly out of control and out of proportion to their benefits, particularly in cases with smaller claims. These costs, together with delays in pretrial handling of cases, especially discovery and dispositive motions, frequently and effectively block or discourage access to judicial determination of disputes. Moreover, courts began to appreciate that serious criminal cases can be tried without extensive delays and normally without any depositions and interrogatories.^[13] Thus, there is little reason for boundless discovery in cases with limited claims and complexity.

Reform Efforts

During the last decade, many nationwide efforts have been directed toward reforming practices in civil litigation. The American College of Trial Lawyers (ACTL) and the Institute for the Advancement of the American Legal System (IAALS) conducted surveys and analyses of civil rules.¹⁴ These reports led to several pilot projects in different state and federal trial courts¹⁵ and thereafter to amendments to the Federal Rules of Civil Procedure, which became effective in 2015.^[16]

Likewise, concerns about the cost and inefficiency of the civil justice system were being studied by the Council of Chief Justices (CCJ), a group comprising chief justices of all the nation's supreme courts (or equivalent courts). In August 2016, the CCJ issued its own report, "Call to Action: Achieving Civil Justice for All: Recommendations to the Conference of Chief Justices by the Civil Justice Improvements Committee" (Call to Action).^[17]

The uniform theme that runs through these various reform efforts is that the civil litigation system no longer works well when lawyers are allowed or encouraged to control the pace and scope of litigation. For example, the chief justices' Call to Action states:

[T]he leading Recommendation [of this Report] advocates that courts take definitive responsibility for managing civil cases from filing to disposition. This includes effective enforcement of rules and administrative orders designed to promote the just, prompt, and inexpensive resolution of civil cases.

That Recommendation is the lynchpin for all that follows.¹⁸

That recommendation may not be as surprising as it fir st appears. The prevailing reward system for lawyers handling civil cases is largely based on billable hours. Litigators, especially those representing defendants, are rarely financially rewarded for being more efficient, reducing discovery and motion practice, and disposing of cases quickly.¹⁹ This is not to impugn lawyers' integrity or professionalism; given the need to avoid professional malpractice, many lawyers may justifiably believe that being careful and thorough overrides efforts to be efficient. A related and growing factor is the fear of malpractice suits where it may be contended that a lawyer did not use every available discovery tool that might have allowed the client to prevail. (Of course, a powerful and perhaps complete defense to such alleged malpractice is that the applicable court rules and judge's rulings precluded the lawyer from exhausting every imaginable pretrial tool.) Although inappropriate, it is also not rare for lawyers or clients to prefer a "hardball" or "scorched earth" approach to litigating a case in hopes of bludgeoning the other side into submission. Such approaches justify and may even necessitate "adult supervision" by the trial judge.

Although these same concerns and principles motivated the 2015 revisions to Rules 16 and 26 of the Colorado Rules of Civil Procedure,²⁰ the new changes to Rule 16.1 add more tools to assist the courts in managing civil cases and promoting their just, speedy, and inexpensive resolution. Indeed, revised Rule 16.1 is also crucial to changing the basic culture of trial lawyers, clients, and litigation, without which implementing Federal Rule of Civil Procedure l's mandate will continue to be an exercise in futility.

Actions Subject to the Revised Simplified Procedure -Rule 16.1(a) to (e)

As noted above, the automatic opt-out provision from Simplified Procedure no longer exists. Rule 16.1(b) continues to make Simplified Procedure applicable to "all civil cases" other than (1) historically and previously exempted cases involving special subject matters, (2) cases seeking damages exceeding $100,000, and (3) cases approved for exclusion by specific court order under Rule 16.1(d).

For most civil cases, at the time of filing a claim for damages (whether a complaint, counterclaim, cross claim, or third-party claim) the claiming party must file a Civil Cover Sheet.²¹ The new approved form for Civil Cover Sheets is revised Form 1.2 (IDF 601SC R09-18).²² The form serves to identify and provide notice to the defending party as to any reason why Simplified Procedure is not applicable to the case.

Exempted Special Case Types and Subject Matters—Rule 16(b)(1)

The first exclusion from mandatory Simplified Procedure, which also existed under original Rule 16.1, applies to district court civil cases involving "class actions, domestic relations...