13 January 2012

Colorado's Modern Court Procedures and Laws

Recent Innovations In Colorado Civil Procedure

Chief Justice Michael Bender of the Colorado Supreme Court has moved aggressively in his brief tenure at the top of Colorado's judicial system (he has been a Colorado Supreme Court justice for some time but was recently elevated to the Chief Justice post) to modernize court procedure in the state, one of the considerable administrative powers over the judicial branch that a Chief Justice wields in addition to his first among equals status in resolving appeals presented to Colorado's highest state court to resolve.

He has followed the lead of the federal court in replacing an arcane and convoluted, but deeply entrenched, system of calculating procedural deadlines to one in which a "day" almost always mean a calendar day, special rules related to the medium by which court papers are delivered have been jettisoned in an era of mandatory e-filing for lawyers in most courts, and deadlines generally come in multiples of seven days, dramatically reducing the need to resort to special rules that apply when deadlines fall on weekends.

He has also instituted a two year pilot program for "commercial cases" in the metropolitan Denver area that establishes a "rocket docket" that shortened deadlines and limits the availability of extensions of time, and also calls for the availability of "discovery" (e.g. document production, interrogatory questions and depositions) to be limited by a proportionality standard that considers the amount at stake in the controversy rather than allowing maximal discovery in all cases. The pilot program, rather than imposing a one size fits all solution to a problem that exists only in a small, but important class of cases that the court system handles, attempts to focus scarce resources for active case management by the courts on the subset of complex civil litigation cases that are most prone to lurching out of control with long and expensive pre-trial discovery and motion practice. I am not an unequivocal fan of all of the particular solutions proposed by these rules on the merits. But, the pilot project rules do quite accurately describe the set of cases for which the existing rules of civil procedure aren't working well.

Some of the innovations proposed for these cases, like requiring that an answer be filed even if a motion to dismiss the case on the face of the complaint is still pending, to prevent a motion to dismiss from unduly slowing down the litigation as a whole, are sensible. But, shortening some of the other deadlines and discouraging extensions of time even by mutual consent in these cases where both sides are typically represented by competent counsel seems problematic in a set of cases specically selected because of their intrinsic complexity. And, a judicially managed proportionality principle for pre-trial discovery, while a good idea in theory, has echos of multiple previous active case management civil procedure reforms that have appeared to owe more of their success (when they are successful) to the personal judicial style of judges charged with implementing them when they work than they do to the rule itself. Equally often, such mandates on judges are either complied with in form only with vague boilerplate case management orders, or are corrupted by laxity in enforcement.

The Colorado Supreme Court, during Chief Justice Bender's tenure, has also promulgated new and more uniform standards for when e-filed pleadings should be rejected by court clerks, and has adopted a public domain case citation rule that permits instant accurate citations to court decisions that do not yet appear in print and frees the state's lawyers and courts from dependency upon private sector legal publishers for an indexing and referencing system for public domain legal authority.

A Tradition Of Innovation

So much procedural innovation can lead to some bumps in the road, but it continues a long standing and bipartisan commitment in the state's legislative and legal culture to modernization and "good government" innovation.

Plain English and Uniform Laws

No state in the country more consistently uses "plain English" in court documents. There is less Latin in the Colorado courts, even in communications made almost exclusively to lawyers like appellate court opinion terminology, than in any other state that I am aware of. Indeed, there are a number of cases where Colorado arguably goes overboard, using plain English terms like "Personal Representative" rather than "Executor" and "Claim Preclusion" rather than "Res Judicata", or avoiding the term "Mandamus" when the legal terms of art are so widely understood that their plain English alternatives can be unfamiliar to people with any familiarity with the relevant areas of law.

In one notable multiple round tiff between the legislature and the courts in the past couple of decades, an appellate court decision to abandon the legalese terms and concepts of "licensees", "invitees," and "trespassers" was reversed by statute, which still followed a Colorado legal culture tradition of codifying a long legacy of muddy appellate law rulings with a clear statutory rule that reads like a law students outline of the common law rules on the subject.

Colorado adopts many well drafted, modern uniform and model laws that reflect current legal thinking in their subject areas and are drafted by committees of pre-eminent experts in the respective fields with input from affected parties and state legislators in a consensus building process that leaves controversial issues to custom local decision making.

State sanctioned forms for a variety of court documents and common transactional documents, whose effects are within safe harbor statutes or rules, together with statutorily implied rules that match standard boilerplate provisions previously included in legal documents, help cut through attorney caution driven legalese.

Court Procedure

Colorado was one of the first states to provide jurors with notebooks of pertinent materials during trials and to allow them to ask questions when the lawyers are finished with their questions for witnesses (something that judges have long had the right to do), and to impose common sense boundaries on the amount of jury duty service we demand of our citizens (generally, we limit jury service to either one day or one trial).

Colorado has widely adopted e-filing of court documents (the Colorado Court of Appeals, Colorado's general jurisdiction trial courts, and some of its limited jurisdiction trial courts all participate) which saves an immense amount of time and expense in copying time, mailing expense and delay, courier resources, and paper processing once the papers reach courts.

Colorado has adopted an innovative optional set of procedures for medium dollar value ($15,000-$100,000) civil disputes (Rule 16.1), that while it has been something of a flop, in part, because the witness testimony procedures and enforcement mechanisms designed to substitute for traditional discovery procedures don't work very well in practice. But, it still represents a genuine effort to craft a solution to a widely recognized problem.

Colorado's default standard case management standards, with special provisioons for common kinds of cases like personal injury lawsuits, have worked fairly functionally to prevent discovery from growing too expansive in medium sized civil litigation cases even when the courts have little time available for active case management.

Business Entity Law

Colorado's Secretary of State has been equally innovative, with legislative cooperation, in allowing e-filings of both business and elections related documents, and online record searches and the state's various clerk and recorder's offices are starting to catch up. Colorado has also worked hard to eliminate empty formalities and unnecessary boilerplate from its entity governance laws and to treat all forms of entities identically in areas like secretary of state filing proceedures, in all situations where there is no substantive law reason to treat them differently from each other.


Colorado has the simplest, more form driven, inexpensive and private probate administration system in the United States, and has been at the forefront of actively soliciting suggestions from the practicing bar to better address issues not even the state of the art uniform laws have addressed (e.g. Colorado recently adopted a very well drafted law to codify the issue of compensation for fiduciaries in probate cases).


Our public trustee foreclosure system, while having probably gone too far in the direction of being too efficient even where more due process is called for, has at leat been recently overhauled to address deficencies for both lenders and borrowers in the previous version of the system (trading redemption rights that few borrowers could afford to exercise for cure rights that far more borrowers are capable of exercising). Administratively, the system also does do a good job of having the technical and detail oriented task of admimistering foreclosures of sometimes complicated sets of real property interests handled by officials with the skill set and procedures necessary to do it without making mistakes. The public trustee's system also does a good job of disentangling relatively straight forward time sensitive decisions (should a lender be entitled to force a foreclosure sale of property held as collateral for a loan) from more complicated and less time sensitive decisions (should a lender be entitled to a deficiency judgment after a foreclosure sale, and if so, in what dollar amount).

This said, the scope of the due process review of the narrow question of the right to foreclose at all has in the most recent rounds of reforms grown too narrow by prohibiting introduction of evidence related to the foreclosing party's ownership of the loan and oral forebearance agreements that go to the existence of current right to foreclose, the current means of obtaining review of an allegedly incorrect determination in that process by instituting a separate action requesting an injunction directed at the public trustee is unwieldly, and an extremely broadly interpreted credit agreement statute of frauds has made it possible for lenders to engage in unfair collection practices and deceptive trade pratices in areas like loan modification negotiations during the pendency of foreclosure proceedings that would be clearly illegal if conducted through third parties.

Domestic Relations and Protection Orders

Colorado has had more success with its innovations in domestic relations substance and procedure. Its adoption of standard court forms for financial disclosures and utilization of "facilitators" to make a meet and confer process for early case management work better in cases where one or both parties lack lawyers has been a tremendous success. So has the development of a specialized rule for case management and discovery rules in domestic relations cases (Rule 16.2), a system of court ordered parenting classes for divorcing couples (not intended to be taken together by the divorcing parents), and the substance of a statute that sets forth presumptive provisions for temporary maintenance in divorce cases.

Colorado procedures that impose presumptive, but mild, restraining orders during the pendency of domestic relations and criminal cases, have worked well, and the court system and law enforcement have shown real commitment to making a set of uniform state procedures and substantive standards for civil protection orders operate smoothly and live up to the spirit as well as the letter of the law providing for them.

Regulation Of Lawyers and Judges

Colorado's process for appointing judges, processing allegations of ethical misconduct by lawyers and judges, and publicly evaluating judicial performance, while some elements of it have been criticized, is vastly superior to the process used in the vast majority of states. Colorado's judicial appointment system almost never leads to the appointment of professional inadequate judges whose only recommendations are their connections and extreme partisanship. While our judicial discipline system very rarely results in public discipline of judge, its existence deters misconduct of kinds that can be common in states where judges can only be removed from office via impeachment or election, and has proven quite effective at quietly convincing judges suffering from the early onset of dementia prior to retirement age or otherwise melting down for some reason to retire from their posts without a fuss. Our attorney discipline system is friendly to unrepresented person, organizationally functional and efficient, highly proactive in the particularly sensitive area of attorney trust account fraud, and generous in offering meaningful restorative and rehabilitative options for attorneys who have violated ethical rules in particular instances but aren't fundamentally malfeasant.

Low Hanging Fruit: Obvious Reforms Still Left To Make In Colorado

There are still simple common sense civil procedure reforms left to be made in Colorado.

1. Establish e-filing for lawyers in all Colorado courts. It is a proven technology that provides immense administrative savings and we are most of the way there already.

2. Establish a user friendly way for people not represented by lawyers to e-file documents in court. We have done this for the Colorado Secretary of State and for the I.R.S. and Colorado Department of Revenue, we can do it in our courts. People not represented by lawyers should still have the option of filing documents in person, but it need not be mandatory for unrepresented people to hand file documents and deliver them to other parties in the case by mail that they send.

3. Eliminate the requirement for certificates of service on pleadings. In the good old days, the person who was in charge of putting documents in the mail had to sign a "certificate of service" at the bottom of every document after the initial complaint that was filed in a case reciting that it had been delivered to the other parties to the case at a specific addresss, usually by mail, in a particular day. This allowed for proof that documents were getting to everyone entitled to them without the cumbersome bother of sending everything via certified mail. But, in the e-filing era, this is redundant. The e-filing system provides an auditable record of exactly when which documents was delivered to whom and is much less prone to clerical error. It can even mail documents to people who don't have lawyers. And, it provides one more formality to trip up the unwary unrepresented individual. This half page addendum to every legal document other than a complaint is obsolete now.

4. Consolidate the several forms that must be filed out with a great deal of redundant information to commence an informal probate case into a single form, so it is easier to understand how to handle this part of a case that many non-lawyers handle themselves.

5. Provide a streamlined court form for financial disclosures cases that involve child support, but not property divisions or alimony. Right now we have a one size fits all financial disclosure form in domestic relations cases. But, while all of the information on the form is relevant in dissolution of marriage cases, in cases dealing only with child support, assets are irrelevant and only income and a few select kinds of expenses related to care for the children are relevant. A shorter form would reduce the paperwork burden and complexity of child support cases that are frequently handled by unrepresented parties. Both forms would also benefit from more complete instructions comparable to those found for tax forms.

6. Establish a stand alone set of domestic relations procedural rules. The Colorado Rules of Civil Procedure, which governs domestic relations cases, has a great many provisions that never apply in domestic relations cases. Putting the relevant rules all in one place would make it easier to provide the relevant information in its complete statutory form, free of irrelevant information that serves only to confuse people, to unrepresented parties in a manner less likely to lead to confusion. It would also make it possible for lawyers who frequently go to court in domestic relations practices to have a more compact set of guidelines to refer to.

7. Increase the availability of declarations that are not notarized in lawsuits. Generally speaking, when a document is presented to a court by a lawyer as a signed representation by an individual, the requirement that the statement be verified or supported by an affidavit (either of which must be notarized) adds little or nothing to the probability that a statement will be truthful or the reliability with which a court can discern the identity of the person signing it. But, it can add to the inconvenience of participating in the legal process in an era when clients and witnesses, as it is frequently inconvenient for a litigant or witness to spend time locating a notary before whom they will sign a document. At the very least, statements of parties to lawsuits and their lawyers, whom courts have considerable power to police, should be permitted to make declarations under penalty of perjury rather than provide affidavits that must be notarized.

8. Establish a system of automatic, court system generated, date certain, procedural deadline notices through the e-filing system. Why require lawyers and non-lawyer parties to calculate deadlines and sometimes make mistakes when it would be fairly elementary to have every filing automatically send out a notice of the applicable deadlines still in force in a case as a matter of course. In practice, the courts already have these systems for their own internal use anyway, and there is no reason that the value that is created by those systems shouldn't be shared with the bar and the public, at very little additional cost and with greater certainty for all. Parties or lawyers could still request that a deadline be calculated and that a new date certain be calculated by hand, just as courts do now when an extension of time motion is made under the rules, but this would be the default absent affirmative action by the court.

9. Permit telephone testimony of witnesses and attorneys in hearings unless otherwise ordered, rather than requiring advanced permission to authorize this form of participation in court. We have reached the point where telecommunication is the norm, and in person communication is the exception, and for most status conferences and for most minor witnesses in cases, the expense and time associated with requiring in person appearances is outweighs the benefits to be secured from an in person court appearance. The default rule matters more than the standard for deviating from it, which could have a low bar like "for good cause shown."

10. Reduce redundant information in standard form court document captions. In courts where all documents are e-filed, it is no longer necessary to include the mailing address of any of the parties or the Court on documents that don't require a pro se party to file something or set a matter for an in person hearing. We have also seen the rise and fall of the fax and there is no longer any good reason to include attorney fax numbers on pleadings. Furthermore, in the era of universal e-filing, it is no longer helpful for internal court purposes to include a division or courtroom number of a document e-filed with the court so that it gets to the right place and this too could be omitted from the standard form court document caption in favor of a mere case number that the e-filing system can automatically match to the judges and magistrates currently assigned to a case.

11. Discontinue the practice of requiring proposed orders for motions. Motions always have a "prayer for relief" that explains what the movant is asking for if the motion is granted, courts routinely use the e-filing system to enter orders on motions without regard to the proposed order form submitted by a party, since it is easier to do online than manually signing an order form submitted by a party when the decision doesn't call for a long explanation. This is just one more piece of busy work for lawyers and is a trap for the unwary unrepresented person. It is a rule that made sense ten years ago and no longer does given current technology.


Anonymous said...

Interesting. I still think eFiling for courts is the way to go and should be integrated by more court systems.

andrew said...

At the moment one of the e-Filing challenges is that there are four separate systems simultaneous in force that are pertinent to Colorado lawyers: (1) one for e-filing cases in federal courts (CMS), (2) one for researching e-filed court documents in federal courts (PACER), (3) one legacy e-filing system in general jurisdiction trial courts and the Court of Appeals that is being phased out a few courts at a time (File and Serve Xpress) and has also changed management in its final days, and (4) one new state run e-filing system (ICCES) that is being phased in on a court by court basis which will eventually be used for all Colorado courts except non-lawyer small claims courts, municipal courts (which aren't part of the state judicial system), and the Colorado Supreme Court (who knows why?).

Certain kinds of court actions, mostly in criminal and probate cases still require paper filings of some documents (e.g. original Wills and documents under seal). Criminal procedure unlike civil cases, is predominantly conducted on an in person oral basis rather than in writing.