01 December 2011

Law Without Lawyers Or Juries In Colorado

Most people assume that lawsuits, apart from those in small claims court, are primarily both brought and defended by lawyers. The reality, however, is that a very large share of all cases are handled without lawyers. Consider the following statistics from the 2010 fiscal year in Colorado's state courts:

In 60% of divorce cases, neither husband nor wife has a lawyer - this is the case type in which it is most common for neither party to be represented by counsel that generally involves meaningful adversarial litigation activity beyond a partial day one time hearing (apart from the small claims court division of county court limited to money claims of up to $7,500, which are lawyerless by design; about 12,000 of these cases are filed each year and about one in five are resolved through a brief bench trial with no pre-trial proceedings).   At least one of the parties in a divorce is not represented by a lawyer in an even larger share of all divorce cases in Colorado.

There were no lawyers in 73% of adoption cases, and in 65% of juvenile relinquishment cases, both of which are frequently uncontested, form driven and involved fairly small raw numbers of cases. There were no lawyers in 56% of district court civil case (although I have a suspicion that this may include all of the "distaint warrant" cases, which are basically state tax lien filings prepared by the State of Colorado, that don't involve meaningful court proceedings since the due process takes place within the Colorado Department of Revenue process). About 50% of all district court civil cases are distaint warrants (which rarely give rise to any hearing) and another 26% are approvals of non-judicial foreclosures in brief, unappealable hearings, usually by default and when held usually involving unrepresented defendants at which the non-payment of a mortgage payment is typically the only issue which may be considered.  Fewer than half a dozen law firms handle the vast majority of non-judicial foreclosures statewide in Colorado.

Defendants are not represented by lawyers in 64% of misdemeanor criminal cases, although describing these cases initiated by the District Attorney's office as lawyerless is deceptive, and the lack of representation is related in part to an unconstitutional Colorado practice of denying misdemeanor defendants access to a public defender prior to considering a plea bargain offer, that will probably be discontinued by court order in the near future.

A very large share of all civil cases brought in county court (mostly consumer debt collection and residential eviction actions), about 200,000 a year in round numbers statewide in Colorado, are brought by a collections attorney (often en masse with the pleadings prepared primarily by collections officers and paralegals), but give rise to a default judgment or result in an answer being filed by an unrepresented defendant.  A typical county court case alleged that the defendant has missed one or more credit card or rent payments.

Less than 1% of county court civil cases (other than small claims court cases) give rise to a trial, despite the almost complete absence of pre-trial dispositive motion practice or discovery in county court once an answer is filed. The rest of the county court collections cases produce default judgments or settlements. There were just 14 limited jurisdiction county court civil jury trials in the entire state in 2011 (about 1% of all county court civil trials), excluding Denver (which is not part of the state court statistical system at the county level) - eight of which were in the counties that are home to Colorado Springs (6) and Boulder (2), respectively (if the proportions are the same in county court as in District Court in Denver, one would expect about 5 civil jury trials in Denver each year, but small numbers produce many flukes).

Defaults are less common, but not unusual, in District Courts which have exclusive jurisdiction over lawsuits for more than $15,000 in Colorado, and over most lawsuits seeking non-economic relief. Nationwide, about a third of general jurisdiction civil cases (exclusive of summary proceedings like lien filings and non-judicial foreclosure approvals) produce a default judgment. In a significant share of cases where an answer is filed in general jurisdiction civil cases, an unrepresented party files the answer.

Overall, about half of state court general jurisdiction court civil trials are to juries and half are bench trials. Denver accounts for about 25% of the state's civil jury trials at the general jurisdiction District Court level (about 90 per year), and nationally about 75% of civil jury trials at the state court level involve personal injury lawsuits (the largest share of which are motor vehicle accidents and slip and fall cases) despite making up a much smaller part of the general jurisdiction court docket, typically with a Plaintiff's lawyer paid on a contingent fee basis and a defense attorney paid for by an insurance company. The State of Colorado as a whole has just a couple of civil jury trials in cases other than personal injury cases statewide each week in a state with something on the order of 30,000 lawyers and about 5 million residents.

Source of statistics: Adam J. Espinoza, "Ethical Considerations When Providing Unbundled Legal Services", The Colorado Lawyer (September 2011) at page 75; Colorado Supreme Court Administration Annual Reports. Context provided from general personal knowledge.

No comments: