23 May 2011

What Drives Court Dockets In Colorado?

The 2010 Annual Report of Colorado's Judicial Branch, as usual, is one of the best empircal descriptions of what is going on in the state courts. This year is notable for including beter data about hearings, as well as "trials" than previous years.


Colorado's superior jurisdiction judicial branch courts are its District Courts, which are unified in most of the state, but in Denver are divided between the District Court, the Denver Probate Court and the Denver Juvenile Court. The Denver District Court also has a number of special responsibilities that do not involve a separate court as the venue for cases involving state government that are localized to the capital. Seven district courts have divisions that double as "water courts."

Colorado's primary inferior judicial branch courts are its County Courts. Outside Denver, these are identifical, but in Denver the County Court also doubles as a municipal court where ordinances are enforced. Small claims court is a division of the County Courts. All of these courts, except for the Denver County Court, are part of the state judicial system with judges appointed by the Governor. Denver County Court has a hybrid city and state status.

Crimes other than ordinance violations are prosecuted by District Attorneys, who are locally funded and elected from a judicial district but are formally considered to be state employees.

Ordinance violations at the county level are generally prosecuted in county court by country attorneys (a position distinct from the District Attorney that mostly is responsibile for representing county government as in house counsel in civil matters).

Ordinance vilations at the city level are generally prosecuted in municipal courts that municipalities may established by city attorneys. Municipal courts are regulated by state law, by have judges appointed by the city, are administered by the city and are not part of the comprehensive state record keeping system in place for state courts. In practice, it is common for the same person to be a municipal judge for multiple municipalities, and/or to be both a part-time county court judge in a rural county and a municipal judge at the same time. State law limits the magnitude of the criminal sanctions that can be imposed for ordinance violations (basically limiting the punishment to that available for less serious state misdemeanors) and provides for the appeal of municipal court judgments to the state courts, in a manner typical to that of other appeals for courts of record with lawyer judges, and with a trial de novo in the case of municipal courts not of record. There are 273 municipalities in the State, but not all of them have municipal courts and very few of them have a full time municipal judge. The lion's share of municipal court cases concern traffic violations prosecuted via municipal ordinances, although they also include a smattering of ordinance violation cases.

Non-lawyer judges are permitted in rural county courts and in municipal courts not of record, but in practice, there are no more than four non-lawyer judges in the state courts and very few who preside over municipal courts.

Trials, Hearings and ADR

There were 1399 jury trials in District Court in Colorado in fiscal year 2010: 1,059 in criminal cases, 306 in civil cases, and 34 in juvenile cases (generally only termination of parental rights cases give rise to a right to a jury trial in juvenile cases). I know from other data that approximately 75% of general jurisdiction civil jury trials are personal injury cases.

There were also 763 bench trials in District Court: 53 in criminal cases, 368 in civil cases, and 342 in juvenile cases (many of which are quasi-criminal juvenile delinquency cases).

There were 13,860 domestic relations hearings in District Court: 13,487 permanent orders hearings in dissolution of marriage cases, 202 legal separation hearings, and 171 invalidity of marriage hearings. Note that almost every dissolution of marriage or legal separation of invalidity of marriage case must be concluded with a hearing (including every case where children are involved) even if the cases are uncontested. So this doesn't necessary capture the full number of active litigations in these cases.

There were 183 mental health hearings in District Court: 49 for involuntary committment for alcohol treatment, 78 long term certification hearings, and 56 short term certification hearings.

There were 2,729 probate hearings: 430 for combined conservatorships and guardianships, 614 for conservatorships without guardianships, 1,517 for guardianships without conservatorships, 137 for the formal probate of a will, 11 for will contests, and 20 hearings related to trusts. Many of the conservatorship, guardianship and formal probate cases are not genuinely contested but do require in court testimony to establish the faces beyond mere affidavits.

In County Court in Colorado, in fiscal year 2010, there were 1,321 jury trials: 821 in misdemeanor cases, 483 in traffic cases, and 17 in civil cases.

In County Court there were 4885 bench trials: 275 in misdemeanor cases, 176 in traffic cases, 1,295 in civil cases other than small claims cases, and 3,139 in small claims cases. There were also 9,053 final hearings in infraction cases.

These figures, naturally, omit, federal court trials and hearings, and hearings in administrative courts (e.g. DMV license revocation hearings). This list also omits parole revocation hearings and many hearings that aren't the moral equivalent of a final bench trial in a case (e.g. schedulinng hearings, motion hearings, temporary orders hearings, contempt hearings, etc.).

Compared To Case Loads

District Court Civil

There were 116,346 civil cases filed in District Court in Colorado in fiscal year 2010, that produced 306 jury trials and 368 bench trials, but not all of those filings are created equal.

Rule 120 hearings filings (a summary hearing, often uncontested and dispensed with after filing for lack of objection, in the non-judicial mortgage foreclosure process) accounted for 39,404 of those cases. The bulk of of the non-judicial foreclosure process is handled by the executive branch public trustee's office, whose duties are ministerial and comparable to those of a sheriff enforcement a judgment rather than by a court imposing one. The court in a rule 120 hearing addressly solely the question of the existence of default justifying foreclosure (in all but rare cases due to non-payment of amounts due on a promissory note), not damages.

Distaint warrant filings (state tax lien filings) accounted for another 45,528 filings and generally don't produce a hearing. A distaint warrant is roughly equivalent proceedurally to the administrative registration of a judgment obtained in another state and does not require proof of the merits before a claim can enforced against property.

These case make up 73% of the district court civil docket, but have a comparatively trivial impact on the court's work load. The 578 foreign judgment filings, 322 out of state subpeonas and 278 name change petitions are also almost purely administrative matters that do not greatly burden the court.

There were 30,236 cases of other types on the District Court civil docket in the state.

About 5,809 are claims that fit in the heartland of tort law: cases involving personal injuries including worker's compensation cases that end up in court) and wrongful deaths, breach of warranty, public nuisance, sexual harassment cases, fraud cases and malpractice cases (of all kinds) as well as motions to approve transfers of structured settlements. These cases make up a greatly disproportionate share of civil jury trials in District Court with about one in thirty-three of them actually proceeding to a jury trial

About 3,527 involve judicial efforts to establish title to or possession of specific pieces of property often in connnection with the collection of a debt. A big portion of the remainder of the cases, 13,165 involve contractual disputes or rights in real estate or other property. The number of jury and bench trials in cases such as these greatly understates the number of actual controversies resolve by the court process, because many "paperwork intensive" cases can be resolved by judges on the merits, or in a manner that makes a determination on the merits largely a foregone conclusion, in motion practice prior to trial.

Many cases involve judicial review of, or action collateral to that of other decision makers: There were 722 appeals from municipal or county courts and 72 cases to confirm arbitration awards. There were 3,820 cases are to seal records or seek habeas corpus relief that is generallly collateral to a criminal case. There were 5 public utility cases, 236 cases reviewing acts by local governments and by government officials, and 31 special district cases. Note also that appeals of municipal or county court cases classified as civil in district court, appear to include cases where the underlying matter appealed from would be a traffic or criminal case, and that it is possible to appeal such cases even in many cases when guilt is not disputed (and hence there was no trial) if there is an alleged error regarding the sentence. The number of civil cases appealed to District Court from county court or a municipal court is probably closer to one or two hundred.

This leaves 2,849 other kinds of cases on the docket. They include: 470 declaratory judgment cases, 583 injunctive relief cases, 1,484 cases classified simply as "other", 29 restraining order cases, and 334 contempt of court cases.

District Court Criminal

There were 36,993 criminal cases in District Court that were resolved with 1,059 jury trials and 53 bench trials (with the balance being resolved by plea bargain or dismissed prior to trial).

Probate Filings

There were 12,189 probate filings in Colorado in fiscal year 2010.

Of these, 5,600 were for the informal probate of a will, 1651 were for informal probate in an intestate estate, 425 were for the formal probate of a will, 225 were for formal probate in an intestate estate, 18 involved appointment of a special administrator where the probate or determination of intestacy was informal, 27 involved the appointment of a special administrator following a formal probate proceeding, 78 were small estates, 103 involved a determination of an heirship, 231 were trust cases, 93 were public administrator statements, and 149 involved "estates." All of these cases combined produced 137 hearings for the formal probate of a will (out of 452 such cases), there were 11 hearings for will contests (out of roughly 6,070+ wills presented for probate), and 20 hearings related to trusts (out of 231 trust cases). Less than two wills presented for probate in a thousand gave rise to a genuine will contest that must be resolved in a hearing in 2010 in the entire state of Colorado.

Denver's Probate Court has only a couple of dozen contested will hearings a decade. In 2010, Denver's Probate judge and her magistrate handled held 342 guardianships and/or conservatorship hearings, 3 contested will hearings, 14 formal probate hearings, and 7 trust hearings. Thus, there were 6 or 7 guardianship or conservativeship hearings in a typical week, and there was two hearing related to the probate of a will or to trusts every month. In addition, official statistics do not reflect, but there probably were, proceedural hearings, hearings on creditor's claims, and hearings related to accountings in probate and guardianship and conservatorship estates.

Of the 8,220 decedents estates that were handled by the courts in Colorado in any capacity in fiscal year 2010, only 45 (about half of one percent) involved the appointment of a special administrator which gives rise to the kind of close court oversight of the estate that is routine in many states such as Florida, New York and Ohio. Slightly more than 90% of primary decedents estates that had any court involvement in Colorado were handled administratively and approved as a matter of course by the Probate Registrar in the clerk of the court's office, rather than by a judge, on the basis of a simple court form. Other parts of the probate docket were also purely administrative and required little or no judicial intervention: 592 were trust registrations, 36 were will transfers (where a will has been lodged and is moved to a new court), 4 were registrations of foreign orders, 449 were ancillary proceedings to a probate elsewhere domesticating a foreign appointment as personal representative, and 1 was a disclaimer filing.

In contrast, there were 192 adult conservatorships, 378 combined conservatorship and guardianship proceedings, 227 conservatorships for a minor, 668 adult guardianships, 560 guardianships of minors, 26 involved approving single fiduciary transactions, and 374 were personal injury settlement approvals. These produced 430 hearings for combined conservatorships and guardianships, 614 hearings for conservatorships without guardianships, 1,517 hearings for guardianships without conservatorships. Thus, almost every guardianship and conservatorship case produces a hearing and some more then one. In most, the key issues are determining the competency of the adult in question (if the case concerns an adult), and determining if the person seeking to be appointed as guardian or conservator is the right person to do so. Frequently, only one of these questsion, or neither of these questions, is at issue.

County Court Civil

County courts in Colorado in civil cases in 2010 had 1,295 in civil cases other than small claims cases and 17 civil jury trials.

This comes from 148,425 money claims, 42,689 eviction cases, 531 cases to repossess personal property, 13,257 restraining order cases, 1,496 name change petitions, 27 purely administrative registrations of foreign judgments, and 529 cases classified as "other." The vast majority of these cases are low stakes cases brough by collections attorneys for businesses in the business of lending money and by professional landlords. Less than 1% of civil cases in county court go to trial and only about 1.2% of trials are jury trials. This is particularly notable given the fact that county court procedure has little or no pre-trial dispositive motion practice. The vast majority of cases either produce default judgments or are resolved in a pre-trial settlement (usually reach in person in the court room at an initial appearance date or, much less frequently, immediately prior to a scheduled trial).

Court Sponsored Mediation

The courts also sponsor mediation (or its close cousins, excluding arbitration) through its ADR programs. There were 7,160 such cases in Colorado in the fiscal year 2010: 5,476 in domestic relations cases, 410 in juvenile dependency and neglect cases, 200 in child support enforcement cases, 172 in juvenile delinquency cases, 8 in probate cases, 283 in district court civil cases, 130 in criminal cases, 435 in county court civil cases, 36 in small claims cases, and 10 in restraining order cases. While court affiliated domestic relations ADR is offered in all judicial districts, other forms are offered only in some judicial districts.

For example, the Fourth Judicial District (El Paso and Teller Counties) is the only one with court affiliated, formally recognized ADR programs for criminal cases and restraining order cases. It also accounts for just under half of the dependency and neglect ADR cases (with all but ten of the rest being in Denver), and 57% of the county court civil ADR cases. All but 7 of the small claims ARD cases are in the 11th Judicial District (Chaffee, Custer, Fremont and Park counties). All but eight of the child support enforcement cases happen in one of four judicial districts in the Denver metro area (the 2nd, 17th, 18th and 19th judicial districts). Most court affiliated ADR programs in Colorado in non-domestic relations cases are effectively pilot programs.


On the civil side, courts are primarily institutions in which people invoke their rights and provides a formal forum for official notice and communication between parties involved in a claim; court imposed dispute resolution in civil cases is by comparison almost a side proposition, particularly in cases where the gravamen of the action is to secure compulory means by which to collect a contractual or quasi-contractual or government agency imposed debt.

Cases involving bona fide disputes over liability in civil cases, the analysis of which makes up the bulk of the training of new lawyers, makes up a very modest share of the litigation docket. Moreover, a very large share of all of those litigated cases with disputed liability involve extremely ordinary contract terms and claims and defenses, or tort suits for simple negligence in utterly pedestrian fact scenarios (e.g. car accidents and slip and falls).

Lenders, landlords and government agencies make up the vast majority of plaintiffs, and a very large share of the rest of the cases are domestic or quasi-domestic in nature.

Where there are bona fide disputes, they frequently involve cases where the existence of an event giving rise to liability is not seriously contested, but there is legitimate dispute over the appropriate remedy, mostly because the facts are muddy and the law (e.g. in domestic relations cases or in non-economic damages cases) does not provide a definitive answer even in cases where the facts are known with absolute certainty.

Courts, of course, have authority to adjudicate a far, far wider range of disputes, but the exceptions make up a surprisingly small share of the docket relative to the bread and butter component of the docket.

No comments: