25 April 2012

Colorado Civil Procedure Reforms

In a previous post, I outlined some recent reforms to Colorado's Civil Procedure Rules, set forth our tradition of having modern procedural rules and innovating, and proposed a few improvement worth considering. These reforms make little or no substantive change in the law and are intended to be uncontroversial ways to streamline the system, like several other recent changes in the Rules, not major policy items. I'll first recap those proposals and then make a few more.

Proposals From The Last Post

1. Establish e-filing for lawyers in all of Colorado's state courts. As I understand it, the Colorado Supreme Court and some parts of the state's county courts are still hold outs, while all of the state's general jurisdiction trial court and the Colorado Court of Appeals are in the system, and some of its county courts are in the system.

2. Establish a user friendly way for people not represented by lawyers to e-file documents in court. This particularly makes sense for pleadings for which there is no filing fee after the original pleading in a case is filed. A user name and a password that are valid in a case could be established at a citizen e-filing site when pro se parties enter an appearance in a case.

3. Eliminate the requirement for certificates of service on pleadings that are e-filed, because e-filing makes them redundant.

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. It currently takes about four forms to commence a probate case. 

5. Provide a streamlined court form for financial disclosures cases that involve child support, but not property divisions or alimony. This would disclose income and certain extraordinary child related expenses, but not assets, liabilities and all other expenses which are not legally relevant in child support cases.

6. Establish a stand alone set of domestic relations procedural rules. This would be for ease of use in an area were a large percentage of parties are pro se and don't need to be confused by having to figure out rules that don't apply to them.  It would also reduce some lingering ambiguity over the extent that other civil rules which are rarely invoked in domestic relations cases actually apply in domestic relations cases and might encourage some innovation.  For example, even though it is possible to join parties other than the two spouses to a dissolution of marriage action in certain circumstances (e.g. when a third party has a property right in marital property, or when a third party has parental rights and responsibilities with respect to a child of the marriage), a joinder of parties rule drafted specifially with domestic relations cases in mind would be much easier to apply when appropriate in domestic relations cases than the generic joinder rule applicable to all civil actions.

7. Increase the availability of declarations that are not notarized in lawsuits. This practice was adopted in Utah in 2007 and according to the Utah Bar Journal has worked well in practice. The could be implemented for a large share of cases with an amendment to Colorado Rules of Civil Procedure 108 and 408, and Colorado Rule of Evidence 902.

8. Establish a system of automatic, court system generated, date certain, procedural deadline notices through the e-filing system. The courts themselves already make these calculations to manage their own dockets, and there is no harm in sharing it, giving these dates at least presumptive effect, and establishing that it will generally constitute excusable neglect to file by a court generated deadline even if it is actually later than the true deadline.  This would be particularly helpful at times like the present where multiple sets of procedural rules are operating in parallel in the same court.

9. Permit telephone testimony of witnesses in hearings, and telephone participation of attorneys non-evidentiary hearings, unless otherwise ordered, rather than requiring advanced permission to authorize this form of participation in court.

10. Reduce redundant information in standard form court document captions. The reform requiring this information in captions came at the tail end of the paper document filing era and was obsolete soon after it was adopted.

11. Discontinue the practice of requiring proposed orders for motions. Courts routinely grant or deny simple motions with comments on the motion document rather than the proposed order in most cases using the current court system software anyway.

New Proposals

Here are some additional suggestions in the same spirit, although sometimes a bit more substantive:

12. Establish streamlined expert disclosure rules for certain kinds of expert opinions regarding:
a. Appraisals of property, or the value of any asset.
b. Opinions regarding the reasonableness and necessity of the compensation of an attorney, accountant, expert witness, fiduciary, or another other person.
c. An interest calculation, actuarial calculation and/or amortization schedule.
d. Surveys conducted by a licensed surveyor.
e. Opinions of an expert that are derived solely from a review of tax returns or financial statements.
f. Opinions of an expert whose conclusions are entirely embodied in a tax return or financial statement prepared.
g. Opinions of a party to the action, a managerial representative of a party to the action.
h. Opinions as to the state of title to real property.

13. Adopt Colorado Jury Instructions for Civil Cases for additional causes of action and issues, such as civil theft, conversion and landlord-tenant disputed in general, and under the security deposit statute.

14. Make the annotated Colorado Jury Instructions available for free online.  This is the single most practical code-like guide to the common law that is particular to Colorado available in print, and it would be a great asset to pro se parties.

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