16 January 2018

Some Civil Procedure Reforms That Make Sense

Some Civil Procedure Reforms That Make Sense Regarding Formalities

* The efiling system should never reject a filing. Instead, it should accept all filings and alter the clerks to potentially problematic filings that may require correction. Filings should not be deemed untimely because they are rejected by a clerk after being timely filed.

* The attachment of an exhibit to a pleading should constitute an implied declaration under penalty of perjury that the document is authentic in all circumstances where historically an affidavit of someone was required to be attached to a pleading to establish its authenticity. The requirement that an affidavit be attached is an inappropriate trap for the unwary.

* The concept of a non-appearance hearing used in the Colorado Rules of Probate Procedure and in Colorado Rule of Civil Procedure 120 hearings (foreclosures), in a highly non-intuitive concept that is unnecessary and should be abolished. Just set a deadline for filing an answer or response and have the court set a hearing when there is a timely response..

* There should be a different rule for default judgments than there is for other claims for relief for judgment pursuant to C.R.C.P. 60.

* Judgments entered by default (including defaults on motions) should be set aside as a matter of course within three days from entry in county court, and within fourteen days from entry in district court, without any showing of cause to do so.

* The deadline for setting aside default money judgments should be six months from an action to enforce the judgment by garnishment or writ of execution or debtor's interrogatories, rather than six months from entry of judgment.

* The non-claim statute should be one year from the appointment of a personal representative, rather than one year from date of death, in cases where notice is not given.

* Affidavits should be replaced for all purposes under the rules of Civil procedure by declarations under penalty of perjury (something that is already true in the federal courts and in states including Utah). This dispenses for the need for a notary public in connection with court filings.

* The requirement of a certificate of service on a pleading should be dispensed with in all cases in which service is conducted entirely via the e-filing system.

* The obligation to confer regarding motions should be dispensed with entirely in the case of motions that do not concern discovery. Conferral and designation of motions as unopposed should be encouraged but not required.

* Pro se parties in District Court, Denver Probate Court, Denver Juvenile Court, Water Court, the Colorado Court of Appeals and the Colorado Supreme Court should be issued efiling accounts as a matter of course that automatically serve parties entitled to notice of filings.

* A portal should exist to allow pro se parties to file county court efilings with an automatically generated caption.

* The deadline for filing a motion to except a debt from discharge in bankruptcy should be relaxed.

Some Civil Procedure Reforms That Make Sense Regarding Attorney Fee Awards

* There should be a presumptive fee award schedule set by judicial department regulation for cases of various types resolved by default judgment where there is a fee shifting provision by statute or in a contract. So, for example, there might be a presumptive fee award of $500 for a default judgment on a promissory note or account receivable with a fee shifting provision, $750 for a default possession judgment in an FED in county court, and $1000 for a default possession judgment in an FED in district court or an uncontested foreclosure.

* There should be a presumptive proportionality limit on attorney fee awards in cases seeking money damages in which no counterclaims are asserted, perhaps 50% of the amount awarded or the amount that would be awarded in the event of a default judgment, whichever is greater.

* The reasonable hourly rate of an attorney or paralegal with regard to attorneys' fee awards should be set by a judicial department regulation on an annual or biannual basis based upon a survey of actual rates. So, in lodestar cases, the only dispute would be over the reasonableness of the number of hours billed.

* The reasonableness of attorneys' fees should be a matter upon which expert testimony is prohibited because every attorney is considered an expert with respect to attorneys' fees including the judge and counsel for the parties.

* In any case in which attorneys' fees are sought, every party to the action who is not seeking an award of fees should be required to disclose their fees (at the rates set by judicial department regulation) for the matter for which a fee award is sought.

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