A Year after Significant Civil Justice Reforms in Colorado: Successes and Challenges, 0117 COBJ, Vol. 46 No. 1 Pg. 53
| Author | Nina Y. Wang, Judge Morris B. Hoffman Contributors: Brittany K.T. Kauffman, Judge. |
Judges’ Corner
Nina Y. Wang, Judge Morris B. Hoffman Contributors: Brittany K.T. Kauffman, Judge.
It has now been a full year since significant amendments were enacted to the Federal Rules of Civil Procedure.[1] The amendments focused on addressing the issues of cost and delay through increased cooperation, proportionality in discovery, and early case management by judges. The amendments represent the culmination of years of effort by the federal Standing Committee on Rules of Practice and Procedure and the Advisory Committee on Federal Rules of Civil Procedure, as well as many others around the country who worked to amend the rules to achieve a more just, speedy, and inexpensive resolution of civil cases.
These efforts have not been limited to the federal system. There has been an equal focus on improving our civil justice system at the state level, where state courts face larger dockets, higher numbers of self-represented litigants, and a changing landscape of case types. The Conference of Chief Justices recently adopted recommendations for addressing these challenges.2 Colorado is a leader among the states, with innovations like Colorado’s Civil Access Pilot Project (CAPP), which tested new pretrial procedures for pleading, disclosure, discovery, and case management in business cases in five district courts from 2012 to 2015. In July 2015, Colorado adopted amendments that mirrored many of the federal rule amendments and made aspects of CAPP permanent.
Despite these efforts, “organizational change is a process, not an event.”3 Attorneys are watching with interest as the case law and case management practices develop around these reforms. In this article, a federal magistrate and a state court judge share practice advice for attorneys navigating the new rules and discuss challenges and areas for improvement of our system.
Magistrate Judge Nina Y. Wang, U.S District Court for the District of Colorado
In his 2015 Year-End Report on the Federal Judiciary, U.S. Supreme Court Chief Justice John G. Roberts stated:
The amendments may not look like a big deal at first glance, but they are . . . . For example, Rule 1 of the Federal Rules of Civil Procedure has been expanded by a mere eight words, but those are words that judges and practitioners must take to heart. Rule 1 directs that the Federal Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” The underscored words make express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation—an obligation given effect in the amendments that follow. The new passage highlights the point that lawyers— though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes.4
The amendments to the Federal Rules of Civil Procedure, effective December 1, 2015, refocus the court, and the parties, on a practice of active engagement for pretrial discovery. In doing so, the Advisory Committee Notes to the amendments suggest that many, if not all, of the concepts of proportionality in discovery, early and active case management by judges, and reasonable expectations for electronic discovery are not new. Yet attorneys and judges continue to refine their respective approaches to discovery in response to the 2015 amendments, and I reflect on some of those efforts here.
The efforts in our own district to define the expectations for parties and active engagement by the court started before the 2015 amendments went into effect. For example, a year before the amendments, in Wit t v. G.C. Services Ltd Partnership, Magistrate Judge Craig B. Shaffer explained that “a party does not have an unfettered or absolute right to conduct discovery. The...
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