The Easiest Civil Procedure Reform Colorado Can Implement

Many civil procedure forms require the courts to adopt rule changes, substantive changes in private law or criminal procedure, the appointment of new judges with de facto lifetime appointments, or other controversial measures.

This requires none of these. Instead, I suggest that Colorado simply hire a few hundred more law clerks (one new clerk per district court and appellate judge), before it tries anything else. This would cost about $10,000,000 per year, but would reap huge dividends in the form of a stronger legal environment for businesses and individuals in this state.

The simple truth is that no procedural reform or change in the law will work well until the system has enough capacity to handle its workload under the existing system that already stretches judicial resources about as thinly as possible, leaving almost every possible task to the litigants. But, some tasks, like presiding over trial or writing substantive orders in decided cases are non-delegable.

Across the state, our judges are bogged down. The overload is statewide, from Pueblo to Denver to Weld County to Jefferson County to Arapahoe County to Pitkin County. In the years since I started practicing law in Colorado in 1996, I've never seen the average amount of time that it takes a judge to rule on a fully briefed motion or completed trial run longer. It is true for every kind civil case in District Court that can't be resolved in a one or two sentence answer. No judge can be singled out. Judges are working weekends and evenings and still struggling to keep on top of their never ending dockets. And, this is despite the fact that Colorado has no judicial posts take have been vacant for prolonged periods of time as the federal system does.

The pennywise policies that deny our judges the resources they need to turn out reasoned rulings, something that law clerks play a large role in helping them to do, have high costs for the state both within the judiciary and in the private sector.

Delay drives up the cost of litigation. It prevents important private decisions from being made by businesses and individuals. It causes overtaxed judges to make oversights that produce requests for reconsideration and appeals. It undermines the authority of the judiciary whose power comes not just from the quality of its decisions but from their ability to afford parties prompt justice.

If this reform doesn't produce results, it is easy enough for the system to lay off some of the law clerks, without any more changes to the rules or statutes or ranks of full fledged judges than the implementation of this reform took.  But, I suspect that the results would be swift and positive.
There are all sorts of civil procedure reforms out there to consider. But, until Colorado has adequate levels of judicial staff support, every other reform is pretty much irrelevant.

Updated 11/23/11: A recent law review article (Brian Sheppard (Seton Hall University School of Law), "Judging Under Pressure: The Relationship Between Decreasing Judicial Resources and Legal Constraint" (Florida State University Law Review, Forthcoming)) addresses the same concerns.