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TCL > August 2004 Issue > Court Business

The Colorado Lawyer
August 2004
Vol. 33, No. 8 [Page  167]

© 2004 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

All material from The Colorado Lawyer provided via this World Wide Web server is copyrighted by the Colorado Bar Association. Before accessing any specific article, click here for disclaimer information.

From the Courts
Court Business

Court Business

Colorado Supreme Court Rules Committee
Rule Change 2004(12)
Appendix to Chapter 26 Small Claims Courts Forms
JDF 250 Notice Claim and Summons to Appear for Trial (Part 1)
JDF 250 Notice Claim and Summons to Appear for Trial (Part 2)
JDF 250 Notice Claim and Summons to Appear for Trial (Part 3)
JDF 250 Notice Claim and Summons to Appear for Trial (Part 4)
Amended and Adopted

 

Introductory Statement

Forms of captions are to be consistent with Rule 10, C.R.C.P.

An addendum should be used for identifying additional parties or attorneys when the space provided on a pre-printed or computer-generated form is not adequate.

Amended and Adopted by the Court, En Banc, June 10, 2004, effective July 1, 2004. [Note: Corresponding forms and Appendices may be accessed from the Courts’ website: http://www.courts.state.co.us.]

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court

 

Rule Change 2004(11)
The Colorado Rules of Civil Procedure, Chapter 2
Rule 8. General Rules of Pleading
Rule 10. Form and Quality of Pleadings, Motions, and Other Documents
Rule 16.1. Simplified Procedure for Civil Actions
Appendix to Chapters 1 to 17 (New Forms 1.2—JDF 601 and 1.3—JDF602)
Amended and Adopted

Amended and Adopted by the Court, En Banc, June 10, 2004. Effective for District Court Civil Actions filed on or after July 1, 2004. [Note: Corresponding forms and Appendices may be accessed from the Courts’ website: http://www.courts.state. co.us.]

By the Court:

Gregory J. Hobbs, Jr.
Justice, Colorado Supreme Court

Chapter 2. Pleadings and Motions
Rule 8. General Rules of Pleading

(a) Claims for Relief. A pleading which sets forth a claim for a relief whether an original claim, counterclaim, cross-claim, or a third-party claim, shall contain: (1) If the court is of limited jurisdiction, a short and plain statement of the grounds upon which the court’s jurisdiction depends; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief to which the pleader claims to be entitled. No dollar amount shall be stated in the prayer or demand for relief. Relief in the alternative or of several different types may be demanded. Each pleading containing an initial claim for relief in a civil action, other than a domestic relations, probate, water, juvenile, or mental health action, shall be accompanied by a completed Civil Cover Sheet in the form and content of Appendix to Chapters 1 to 17, Form 1.2 (JDF 601), at the time of filing. Failure to file the cover sheet shall not be considered a jurisdictional defect in the pleading but may result in a clerk’s show cause order requiring its filing.

(b)–(f) [No Change]

Chapter 2. Pleadings and Motions
Rule 10. Form and Quality of Pleadings, Motions and Other Documents

(a)–(d)(2)(II) [No Change]

(d)(2)(III) Case Caption Information: All documents shall contain the following information arranged in the following order, as illustrated by paragraphs (e) and (f) of this rule, except that documents issued by the court under the signature of the clerk or judge should omit the attorney section as illustrated in paragraphs (e)(2) and (f)(2). Individual boxes should separate this case caption information; however, vertical lines are not mandatory.

On the left side:
Court name and mailing address.
Name of parties.
Name, address, and telephone number of the attorney or pro se party filing the document.
Fax number and e-mail address are optional.
Attorney registration number.
Document title.

On the right side:
An area for "Court Use Only" that is at least 2-1/2 inches in width and 1-3/4 inches in length (located opposite the court and party information).
Case number, division number, and courtroom number (located opposite the attorney information above).

(3)–(4) [No Change]
(e) Illustration of Preferred Case Caption Format:
(1) Preferred Caption for documents initiated by a party:

[See Courts’ website, http://www.courts.state.co.us, for illustrations.]

 

Rule 16.1. Simplified Procedure for Civil Actions

(a)–(b)(2) [No Change]

(b)(3) Each pleading containing an initial claim for relief in a civil action, other than a domestic relations, probate, water, juvenile, or mental health action, shall be accompanied by a completed Civil Cover Sheet in the form and content of Appendix to Chapters 1 to 17, Form 1.2 (JDF 601), at the time of filing. Failure to file the cover sheet shall not be considered a jurisdictional defect in the pleading but may result in a clerk’s show cause order requiring its filing.

(c) [No Change]

(d) Election for Exclusion from This Rule. This Rule shall apply unless, no later than 35 days after the case is at issue as defined in C.R.C.P. 16(b)(1), any party files a written notice, signed by the party and its counsel, if any, stating that the party elects to be excluded from the application of Simplified Procedure, set forth in this Rule 16.1. The use of a "Notice to Elect Exclusion From C.R.C.P. 16.1 Simplified Procedure" in the form and content of Appendix to Chapters 1 to 17, Form 1.3 (JDF 602), shall comply with this section. In the event a notice is filed, C.R.C.P. 16 shall govern the action.

(e)–(l) [No Change]

 

[The following is the complete rule C.R.C.P. 16.1, clean version, taking into account Rule Change 2003(19), adopted November 6, 2003; the corrective order to Rule Change 2003(19), adopted January 6, 2004; and the amendments to C.R.C.P. 16.1, adopted June 10, 2004, as part of Rule Change 2004(11). C.R.C.P. 16.1 became effective July 1, 2004, for all District Court Civil Actions filed on or after July 1, 2004.]

Chapter 2

Pleadings and Motions

Rule 16.1. Simplified Procedure for Civil Actions.
(a) Purpose and Summary of Simplified Procedure.
(1) Purpose of Simplified Procedure.
The purpose of this Rule is to provide maximum access to the district courts in civil actions; to enhance the provision of just, speedy, and inexpensive determination of civil actions; to provide the earliest practical trials; and to limit discovery and its attendant expense.

(2) Summary of Simplified Procedure. Under this Rule, Simplified Procedure generally applies to all civil actions, whether for monetary damages or any other form of relief unless expressly excluded by this Rule or the pleadings, or unless a party timely and properly elects to be excluded from its provisions. This Rule normally limits the maximum allowable monetary judgment to $100,000 against any one party. This Rule requires early, full disclosure of persons, documents, damages, insurance and experts, and early, detailed disclosure of witnesses’ testimony, whose direct trial testimony is then generally limited to that which has been disclosed. Normally, no depositions, interrogatories, document requests or requests for admission are allowed, although examination under C.R.C.P. 34(a)(2) and 35 is permitted.

(b) Actions Subject to Simplified Procedure. This Rule applies to all civil actions other than:

(1) civil actions that are class actions, domestic relations, juvenile, mental health, probate, water law, forcible entry and detainer, C.R.C.P. 106 and 120, or other similar expedited proceedings, unless otherwise stipulated by the parties; or

(2) civil actions in which any party seeks a monetary judgment from any other party of more than $100,000, exclusive of interest and costs.

(3) Each pleading containing an initial claim for relief in a civil action, other than a domestic relations, probate, water, juvenile, or mental health action, shall be accompanied by a completed Civil Cover Sheet in the form and content of Appendix to Chapters 1 to 17, Form 1.2 (JDF 601), at the time of filing.

Failure to file the cover sheet shall not be considered a jurisdictional defect in the pleading but may result in a clerk’s show cause order requiring its filing.

(c) Limitations on Damages. In cases subject to this Rule, a claimant’s right to a monetary judgment against any one party shall be limited to a maximum of $100,000, including any attorney fees, penalties or punitive damages, but excluding interest and costs. The $100,000 limitation shall not restrict an award of non-monetary relief. The jury shall not be informed of the $100,000 limitation. If the jury returns a verdict for damages in excess of $100,000, the trial court shall reduce the verdict to $100,000.

(d) Election for Exclusion from This Rule. This Rule shall apply unless, no later than 35 days after the case is at issue as defined in C.R.C.P. 16(b)(1), any party files a written notice, signed by the party and its counsel, if any, stating that the party elects to be excluded from the application of Simplified Procedure, set forth in this rule 16.1. The use of a "Notice to Elect Exclusion From C.R.C.P. 16.1 Simplified Procedure" in the form and content of Appendix to Chapters 1 to 17, Form 1.3 (JDF 602), shall comply with this section. In the event a notice is filed C.R.C.P. 16 shall govern the action.

(e) Election for Inclusion Under This Rule. In actions excluded by subsection (b)(2) of this Rule, within 45 days after the case is at issue, as defined in C.R.C.P. 16(b)(1), the parties may file a stipulation to be governed by this Rule. In such event, they will not be bound by the $100,000 limitation on judgments contained in section (c) of this Rule.

(f) Case Management Orders. In actions subject to Simplified Procedure pursuant to this Rule, the presumptive case management order requirements of C.R.C.P. 16(b)(1), (2), (3), (5) and (6) shall apply.

(g) Trial Setting. No later than 40 days after the case is at issue, the responsible attorney shall set the case for trial pursuant to C.R.C.P. 121, section 1-6, unless otherwise ordered by the court.

(h) Certificate of Compliance. No later than 45 days after the case is at issue, the responsible attorney shall also file a Certificate of Compliance stating that the parties have complied with all the requirements of sections (f) and (g) of this Rule or, if they have not complied with each requirement, shall identify the requirements which have not been fulfilled and set forth any reasons for the failure to comply.

(i) Expedited Trials. Trial settings, motions and trials in actions subject to Simplified Procedure under this Rule should be given early trial settings, hearings on motions and trials.

(j) Case Management Conference. If any party believes that it would be helpful to conduct a case management conference, a notice to set case management conference shall be filed stating the reasons why such a conference is requested. If any party is unrepresented or if the court determines that such a conference should be held, the court shall set a case management conference. The conference may be conducted by telephone.

(k) Simplified Procedure. Simplified Procedure means that the action shall not be subject to C.R.C.P. 16, 26-33, 34(a) (1), 34(c) and 36, unless otherwise specifically provided in this Rule, and shall be subject to the following requirements:

(1) Required Disclosures.

(A) Disclosures in All Cases. Each party shall make disclosures pursuant to C.R.C.P. 26(a)(1), 26(a)(4), 26(a)(6), 26 (b)(5), 26(c), 26(e), and 26(g), no later than 30 days after the case is at issue as defined in C.R.C.P. 16(b)(1). In addition to the requirements of C.R.C.P. 26(g), the disclosing party shall sign all disclosures under oath.

(B) Additional Disclosures in Certain Actions. Even if not otherwise required under subsection (A), matters to be disclosed pursuant to this Rule shall also include, but are not limited to, the following:

(i) Personal Injury Actions. In actions claiming damages for personal or emotional injuries, the claimant shall disclose the names and addresses of all doctors, hospitals, clinics, pharmacies and other health care providers utilized by the claimant within five years prior to the date of injury, and shall produce all records from those providers or written waivers allowing the opposing party to obtain those records subject to appropriate protective provisions authorized by C.R.C.P. 26(c). The claimant shall also produce transcripts or tapes of recorded statements, documents, photographs, and video and other recorded images that address the facts of the case or the injuries sustained. The defending party shall disclose transcripts or tapes of recorded statements, any insurance company claims memos or documents, photographs, and video and other recorded images that address the facts of the case, the injuries sustained, or affirmative defenses. A party need not produce those specific records for which the party, after consultation pursuant to C.R.C.P. 26(c), timely moves for a protective order from the court;

(ii) Employment Actions. In actions seeking damages for loss of employment, the claimant shall disclose the names and addresses of all persons by whom the claimant has been employed for the ten years prior to the date of disclosure and shall produce all documents which reflect or reference claimant’s efforts to find employment since the claimant’s departure from the defending party, and written waivers allowing the opposing party to obtain the claimant’s personnel files and payment histories from each employer, except with respect to those records for which the claimant, after consultation pursuant to C.R.C.P. 26(c), timely moves for a protective order from the court. The defending party shall produce the claimant’s personnel file and applicable personnel policies and employee handbooks;

(iii) Requested Disclosures. Before or after the initial disclosures, any party may make a written designation of specific information and documentation that party believes should be disclosed pursuant to C.R.C.P. 26(a)(1). The other party shall provide a response and any agreed upon disclosures within 20 days of the request or at the time of initial disclosures, whichever is later. If any party believes the responses or disclosures are inadequate, it may seek relief pursuant to C.R.C.P. 37.

(C) Document Disclosure. Documents and other evidentiary materials disclosed pursuant to C.R.C.P. 26(a)(1) and 16.1(k)(1)(B) shall be made immediately available for inspection and copying to the extent not privileged or protected from disclosure.

(2) Disclosure of Expert Witnesses. The provisions of C.R.C.P. 26(a)(2)(A) and (B), 26(a)(4), 26(a)(6), 26(c), 26(e), and 26(g) shall apply to disclosure for expert witnesses. Written disclosures of experts shall be served by parties asserting claims 90 days before trial; by parties defending against claims 60 days before trial; and parties asserting claims shall serve written disclosures for any rebuttal experts 35 days before trial.

(3) Disclosure of Non-expert Trial Testimony. Each party shall serve written disclosure statements identifying the name, address, telephone number, and a detailed statement of the expected testimony for each witness the party intends to call at trial whose deposition has not been taken, and for whom expert reports pursuant to subparagraph (k)(2) of this Rule have not been provided. For adverse party or hostile witnesses, written disclosure of the expected subject matters of the witness’s testimony, rather than a detailed statement of the expected testimony, shall be sufficient. Written disclosure shall be served by parties asserting claims 90 days before trial; by parties defending against claims 60 days before trial; and parties asserting claims shall serve written disclosures for any rebuttal witnesses 35 days before trial.

(4) Depositions of Witnesses in Lieu of Trial Testimony. A party who intends to offer the testimony of an expert or other witness may, pursuant to C.R.C.P. 30(b)(1)-(4), take the deposition of that witness for the purpose of preserving the witness’ testimony for use at trial. Such a deposition shall be taken at least 5 days before trial. In that event, any party may offer admissible portions of the witness’ deposition, including any cross-examination during the deposition, without a showing of the witness’ unavailability. Any witness who has been so deposed may not be offered as a witness to present live testimony at trial by the party taking the deposition.

(5) Depositions for Obtaining Documents. Depositions also may be taken for the sole purpose of obtaining and authenticating documents from a non-party.

(6) Trial Exhibits. All exhibits to be used at trial which are in the possession, custody or control of the parties shall be identified and exchanged by the parties at least 30 days before trial. Authenticity of all identified and exchanged exhibits shall be deemed admitted unless objected to in writing within 10 days after receipt of the exhibits. Documents in the possession, custody and control of third persons that have not been obtained by the identifying party pursuant to document deposition or otherwise, to the extent possible shall be identified 30 days before trial and objections to the authenticity of those documents may be made at any time prior to their admission into evidence.

(7) Limitations on Witnesses and Exhibits at Trial. In addition to the sanctions under C.R.C.P. 37(c), witnesses and expert witnesses whose depositions have not been taken shall be limited to testifying on direct examination about matters disclosed in reasonable detail in the written disclosures, provided, however, that adverse parties and hostile witnesses shall be limited to testifying on direct examination to the subject matters disclosed pursuant to subparagraph (k)(3) of this Rule. However, a party may call witnesses for whom written disclosures were not previously made for the purpose of authenticating exhibits if the opposing party made a timely objection to the authenticity of such exhibits.

(8) Juror Notebooks and Jury Instructions. Counsel for each party shall confer about items to be included in juror notebooks as set forth in C.R.C.P. 47(t). At the beginning of trial or at such other date set by the court, the parties shall make a joint submission to the court of items to be included in the juror notebook. Jury instructions and verdict forms shall be prepared pursuant to C.R.C.P. 16(g).

(9) Voluntary Discovery. In addition to the disclosures required by this Rule, voluntary discovery may be conducted as agreed to by all the parties. However, the scheduling of such voluntary discovery may not serve as the basis for a continuance of the trial, and the costs of such discovery shall not be deemed to be actual costs recoverable at the conclusion of the action. Disputes relating to such agreed discovery may not be the subject of motions to the court. If a voluntary deposition is taken, such deposition shall not preclude the calling of the deponent as a witness at trial.

(l) Changed Circumstances. In a case governed by this Rule, any time prior to trial, upon a specific showing of substantially changed circumstances sufficient to render the application of Simplified Procedure under this Rule unfair and a showing of good cause for the timing of the motion to terminate, the court shall terminate application of this Rule and enter such orders as are appropriate under the circumstances.

 

Rule Change 2004(10)
The Colorado Rules of Probate Procedure
Appendix A to Chapter 27
Colorado Probate Code Forms
Amended and Adopted

[Note: Forms in this Appendix are available from the Colorado Courts’ Web page:

http://www.courts.state.co.us/chs/court/forms/selfhelpcennter.htm.]

• CPC Form 9. Petition for Formal Probate of Will and Formal Appointment of Personal Representative

• CPC Form 11. Application for Informal Probate of Will and Informal Appointment of Personal Representative

• CPC Form 13-A. Application for Informal Appointment of Personal Representative

• CPC Form 13-P. Petition for Adjudication of Intestacy, Determination of Heirs and Formal Appointment of Personal Representative

• CPC Form 15-A. Application for Informal Appointment of Special Administrator

• CPC Form 22. Claim

Amended and Adopted by the Court, En Banc, June 3, 2004, effective July 1, 2004.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court

 

Rule Change 2004(9)
Chapter 29. Colorado Rules of Criminal Procedure
For All Courts of Record in Colorado
Amended and Adopted

The following rule is amended as of July 1, 2004:

Rule 4.1. County Court Procedure—Misdemeanor and Petty Offense—Warrant or Summons Upon Complaint

Amended and Adopted by the Court, En Banc, May 27, 2004, effective July 1, 2004.

By the Court:

Alex J. Martinez
Justice, Colorado Supreme Court

 

Rule 4.1. County Court Procedure—Misdemeanor and Petty Offense—Warrant or Summons Upon Complaint

Where the offense charged is a misdemeanor or petty offense, the action may be commenced in the county court as provided below in this Rule. This Rule shall have no application to misdemeanors or petty offenses prosecuted in other courts or to felonies.

(a) Definitions.

(1) "Complaint" means a written statement charging the commission of a crime by an alleged offender filed in the county court.

(2) Repealed.

(3) "Summons" means a written order or notice directing that a person appear before a designated county court at a stated time and place and answer to a charge against him.

(4) "Summons and complaint" means a document combining the functions of both a summons and a complaint.

(b) Initiation of the Prosecution.

(1) Prosecution of a misdemeanor or petty offense may be commenced in the county court by:

(I) The issuance of a summons and complaint;

(II) The issuance of a summons following the filing of a complaint;

(III) The filing of a complaint following an arrest;

(IV) The filing of a summons and complaint following arrest; or

(V) In the event that the offense is a class 2 petty offense, by the issuance of a notice of penalty assessment pursuant to statute.

(c) Summons, Summons and Complaint.

(1) Summons. A summons issued by the county court in a prosecution for a misdemeanor or a class 1 petty offense may be served by giving a copy to the defendant personally or by leaving a copy at the defendant’s usual place of abode with some person over the age of eighteen years residing therein or by mailing a copy to the defendant’s last known address by certified mail, return receipt requested, not less than ten days prior to the time the defendant is required to appear. Service by mail shall be complete upon the return of the receipt signed by the defendant. Personal service shall be made by a peace officer or any disinterested party over the age of eighteen years.

(2) Repealed.

(3) Summons and Complaint. A summons and complaint may be issued by any peace officer for an offense constituting a misdemeanor or a petty offense:

(I) Committed in his presence; or

(II) If not committed in his presence, which he has probable cause to believe was committed and probable cause to believe was committed by the person charged.

Except for penalty assessment notices which shall be handled according to the procedures set forth in section 16-2-201 and subsection (e) of this Rule, a copy of the summons and complaint shall be filed immediately with the county court before which appearance is required and a second copy shall be given to the district attorney or his deputy for such county.

(4) Content of Summons and Complaint. A summons and complaint issued by a peace officer shall contain the name of the defendant, shall identify the offense charged, including a citation of the statute alleged to have been violated, shall contain a brief statement or description of the offense charged, including the date and approximate location thereof, and shall direct the defendant to appear before a specified county court at a stated time and place.

(d) Arrest followed by a Complaint. If a peace officer makes an arrest without a warrant of a person for a misdemeanor or a petty offense, the arrested person shall be taken without unnecessary delay before the nearest available county or district judge. Thereafter, a complaint shall be filed immediately in the county court having jurisdiction of the offense and a copy thereof given to the defendant at or before the time he is arraigned. The provisions of this Rule are subject to the right of the arresting authority to release the arrested person pursuant to section 16-3-105.

(e) Penalty Assessment Procedure.

(1) When a person is arrested for a class 2 petty offense, the arresting officer may either give the person a penalty assessment notice and release him upon its terms, or take him before a judge of the county court in the county in which the alleged offense occurred. The choice of procedures shall be based upon circumstances which reasonably persuade the officer that the alleged offender is likely or unlikely to comply with the terms of the penalty assessment notice.

(2) The penalty assessment notice shall be a summons and complaint containing identification of the alleged offender, specification of the offense and applicable fine, a requirement that the alleged offender pay the fine or appear to answer the charge at a specified time and place, that payment of the specified fine without an appearance is an acknowledgment of guilt, and that an appearance must be made or the specified fine paid on or before a certain date or a bench warrant will issue for the offender’s arrest. In traffic cases, the penalty assessment notice shall also advise the traffic offender of the immediate consequences of payment of the specified fine without an appearance.

(3) In traffic cases, a duplicate copy of the notice shall be sent by the officer to the Colorado department of revenue, motor vehicle division, Denver, Colorado. In all cases, a duplicate copy shall be sent to the clerk of the county court in the county in which the alleged offense occurred.

(4) If the person given a penalty assessment notice chooses to acknowledge his guilt, he may pay the specified fine in person or by mail at the place and within the time specified in the notice. If he chooses not to acknowledge his guilt, he shall appear as required in the notice. Upon trial, if the alleged offender is found guilty, the fine imposed shall be that specified in the notice for the offense of which he was found guilty, but customary court costs may be assessed against him in addition to such fine.

(f) Failure to Appear. If a person upon whom a summons or summons and complaint has been served pursuant to this Rule fails to appear in person or by counsel at the place and time specified therein, a bench warrant may issue for his arrest. In the case of a penalty assessment notice, if the person to whom a penalty assessment notice has been served pursuant to this Rule fails to appear in person or by counsel, or if he fails to pay the specified fine at a specified time and place, a bench warrant may issue for his arrest.

 

Corrective Order to Rule Change 2003(16)
The Colorado Rules of Civil Procedure
Chapter 1. Scope of Rules, One Form of Action,
Commencement of Action, Service of Process,
Pleadings, Motions and Orders
Adopted

Rule 3.2 Appeals from the Denial of a Petition for Waiver of Parental Notification Requirements.

Appeals from orders denying a petition for waiver of the parental notification requirements of Section 12-37.5-104, C.R.S., shall be in the manner and within the time prescribed in Chapter 23.5 of the Colorado Rules of Civil Procedure.

This corrective order removes Rule 3.2 from The Colorado Rules of Civil Procedure Chapter 1 and publishes it in THE COLORADO APPELLATE RULES CHAPTER 32, Rule 3.2.

C.A.R Rule 3.2. Appeals from the Denial of a Petition for Waiver of Parental Notification Requirements.

Appeals from orders denying a petition for waiver of the parental notification requirements of Section 12-37.5-104, C.R.S., shall be in the manner and within the time prescribed in Chapter 23.5 of the Colorado Rules of Civil Procedure.

Adopted by the Court, En Banc, September 18, 2003. Corrective Order issued June 16, 2004, effective immediately.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court

 

Colorado Supreme Court

List of Practices of Attorney Regulation Committee
Protocol for Complaints Filed with the Advisory Committee
Approved

List of Practices of the Attorney Regulation Committee

(1) The Committee requests the Attorney Regulation Counsel to provide information about pending investigations and prior discipline:

(a) when information about investigations of one attorney is relevant to the Committee’s decision about another lawyer,

(b) to assist the Committee in keeping track of the number and length of pending investigations, and,

(c) when the existence of investigations and prior private discipline is relevant to the Committee’s decision to approve diversion, order the imposition of a private admonition or approve formal proceedings.

(2) Requests for Investigation Involving Attorney Regulation Counsel Staff Attorneys

(a) When a request for investigation is received relating to such matters and the information received does not appear to constitute a claim of a general unfitness to practice or that the attorney poses a substantial danger to continually engage in misconduct, the matter is referred to the Attorney Regulation Counsel for his review.

(b) In such situations, it is the policy of the Attorney Regulation Counsel to defer reviewing the investigation until the underlying Disciplinary Proceeding is resolved. This insures that requests for investigation do not become a vehicle by which parties can undermine speedy resolution of pending disciplinary proceedings.

(c) Upon his or her review, the Attorney Regulation Counsel either decides that the matter should be investigated and then make a request to the Colorado Supreme Court for the appointment of a special prosecutor or makes a decision that the request for investigation should be dismissed.

(d) If the Attorney Regulation Counsel decides that the request should be dismissed, the person filing the request would be informed and then that person may request that the Attorney Regulation Committee review the dismissal pursuant to C.R.C.P. 251.12. If the Committee disagrees with the dismissal, Regulation Counsel would then request appointment of a special prosecutor who would investigate and present findings and recommendation to the Committee.

(3) Requests for Investigation Involving Attorney Regulation Counsel

(a) When a request for investigation is received relating to conduct in an underlying Disciplinary Proceeding and which does not appear to constitute a claim of a general unfitness to practice or that the Attorney Regulation Counsel poses a substantial danger to continually engage in misconduct, the Committee shall defer taking action on the request investigation. Consideration shall be deferred until the underlying Disciplinary Proceeding is resolved in order to insure that requests for investigation do not become a vehicle by which parties can undermine speedy resolution of pending disciplinary proceedings.

(b) When consideration of a matter is not deferred, the Committee shall review the matter and decide whether the matter should be investigated independently pursuant to Rule 251.2(b)(1). Upon conclusion of an investigation, the Committee shall proceed pursuant to Rule 251.10(b)(3) and treat the matter as if it was an investigation referred by Attorney Regulation Counsel. If the Committee concludes that a complaint shall be filed, the Chairperson shall request the Colorado Supreme Court to appoint a special prosecutor.

(c) If the Committee decides that the request should be dismissed, the person filing the request will be informed by the Committee.

(4) In making its determinations pursuant to C.R.C.P. 251.12, the Attorney Regulation Committee will not consider nor be informed whether the person has previously participated in a diversion as an alternative to discipline.

(5) The Committee requests that the Office of Attorney Regulation Counsel not dismiss an investigation involving allegations of acts of violence without the approval of the Attorney Regulation Committee.

(6) Respondents may file a memo of up to five pages in length in response to a report of investigation.

(7) In appropriate cases, the Committee can direct Attorney Regulation Counsel to participate in mediation if the respondent is willing to participate.

(8) The Office of Attorney Regulation Counsel will regularly report to the Committee the status of any investigation pending longer than eight months.

Approved by the Supreme Court, En Banc, May 27, 2004.

 

Protocol for Complaints and Concerns Filed with the
Attorney Regulation Advisory Committee

The Attorney Regulation Advisory Committee hereby adopts the following protocol for any person to use to raise complaints and concerns about any facet of the Attorney Regulation system.

(a) All complaints and concerns shall be raised in writing by filing a memorandum with the Chairperson of the Committee.

(b) The Chair shall deal with all such memorandums in the following fashion:

1. Matters relating to conduct of the Presiding Disciplinary Judge shall be forwarded for review by the Personnel Committee. The Personnel Committee is composed of four members of the Committee appointed by the Chair but does not include the PDJ or any member of the Attorney Regulation Counsel’s office or the Attorney Regulation Committee. The Personnel Committee shall conduct an investigation into the matters raised and make a recommendation to the Committee as a whole.

2. Matters relating to conduct of Attorney Regulation Counsel or his/her employees, other than matters which can be considered to be allegations of professional misconduct, shall be forwarded for review by the Personnel Committee. The Chair and Vice Chair of the Attorney Regulation Committee shall also be made aware of the matters raised. The Personnel Committee shall conduct an investigation into the matters raised and make a recommendation to the Committee as a whole.

3. Matters relating to conduct of Attorney Regulation Counsel or his/her employees that would be considered to be allegations of professional misconduct shall be forwarded to the Chairperson of the Attorney Regulation Committee to be dealt with pursuant to that Committee’s procedures.

4. Any other matters raised by such memoranda shall either be forwarded for review by an existing sub-committee or a new sub-committee shall be appointed by the Chair to review the matter. The sub-committee conducting the review shall conduct an investigation into the matters raised and make a recommendation to the Committee as a whole.

(c) If requested by the person making a complaint or raising a concern, the Chair shall attempt to maintain confidentiality relating to the identity of the person and subject matter. However, such request shall not prevent the committee as a whole from addressing systemic issues raised by the complaint or concern. Such confidentiality shall also be maintained by the members of any sub-committee or other committee to which the matter is referred. Upon referral of such matter to any other committee or sub-committee, the Chair shall inform the members of the sub-committee of the continuing need to maintain such confidentiality.

(d) To the degree possible given the nature of the matter being considered, the Committee as a whole shall maintain confidentiality with respect to any matter discussed in executive session.

Approved by the Supreme Court, En Banc, May 27, 2004.

 

Notice of Public Written Comments
Regarding Amendments to UNIFORM LOCAL RULES FOR ALL STATE
WATER COURT DIVISIONS and APPENDIX 1 TO CHAPTER 36,
COLORADO WATER COURT FORMS

The Colorado Supreme Court proposes to amend existing Rule 11 of the Water Court Rules and Form 1, Sample Case Management Order, as proposed below. Written comments on this proposal should be filed no later than 5 p.m., Friday, September 3, 2004, with the Clerk of Court, Susan Festag, Colorado Supreme Court, 2 E. 14th Ave., Denver, Co. 80203. If adopted by the Court, these changes would become effective January 1, 2005. [Note: Corresponding forms mayl be accessed from the Courts’ website: http://www.courts.state.co.us.]

By the Court:

Gregory J. Hobbs, Jr.
Justice, Colorado Supreme Court

 

Rule 11. Pre-Trial Procedure, Case Management,
Disclosure and Simplification of Issues

The provisions of C.R.C.P. Rules 16 and 26 through 37 shall apply except that they shall be modified as follows:

(a) C.R.C.P. 16(b) shall be modified as follows:

The following procedures apply to the management of all cases, unless the court directs otherwise:

(b1) Presumptive Case Management Order. Except as provided in section (c) of this Rule, the parties shall not file a Case Management Order and subsections (1)–(11) of this section shall constitute the Case Management Order and shall control the course of the action from the time the case is at issue.

(1) At Issue Date. Water matters shall be considered to be at issue for purposes of C.R.C.P. Rules 16 and 26 ninety (90) forty five (45) days after the earlier of either of the following: entry of an order of re-referral or the filing of a protest to the ruling of the referee, unless the Water Court directs otherwise. (b) Unless the Water Court directs otherwise, the time period for filing proposed Case Management Orders shall be no later than 75 a Certificate of Compliance under subsection (b)(8) of this Rule shall be 45 days after a case is at issue. A suggested form of Case Management Order is attached as Appendix 1.

(2) Responsible Attorney. For purposes of Rule 16, as modified herein, the responsible attorney shall mean applicant’s counsel, if the applicant is represented by counsel, or if not, the objector’s counsel who first enters an appearance in the case. The responsible attorney shall schedule conferences among the parties, prepare and file the Certificate of Compliance, and prepare and submit the proposed trial management order.

(3) Meet and Confer. No later than 15 days after the case is at issue, the lead counsel for each party and any party who is not represented by counsel shall confer with each other about the nature and basis of the claims and defenses, the matters to be disclosed pursuant to C.R.C.P. 26(a)(1), the development of a Certificate of Compliance, and the issues that are in dispute.

(4) Trial Setting. No later than 60 days after the case is at issue, the responsible party shall set the case for trial pursuant to C.R.C.P. 121, section 1-6, unless otherwise ordered by the water court.

(c) Until a case is at issue, formal discovery pursuant to C.R.C.P. Rules 26 through 37 shall not be allowed. However, informal discovery, including discussions among the parties, disclosure of facts, documents, witnesses, and other material information, field inspections and other reviews, is encouraged prior to the time a water case is at issue.

(d) (5) Disclosures. The time for providing mandatory disclosures pursuant to C.R.C.P. 26(a)(1) shall be as follows: (1) for the applicant:, 30 days after the case is at issue; (2) for opposers, 30 days after service of the applicant’s disclosure pursuant to C.R.C.P. 26(a)(1). (e) The time periods for disclosure of expert testimony pursuant to C.R.C.P. 26(a)(2) shall be as follows: the applicant’s expert disclosure shall be made at least 160 days before trial, the opposers’ expert disclosure shall be made at least 100 days before trial, and any rebuttal expert disclosure shall be made at least 80 days before trial. shall, in all cases, be set forth in the Case Management Order. Such Case Management Order shall provide for disclosure by the applicant prior to disclosure by opposers. (f) In circumstances where as a result of identification of witnesses and documents within the time frame for such identification set forth in thise Presumptive Case Management Order, but with insufficient time to allow responsive discovery or supplementation by an opposing party, then modification of thise Presumptive Case Management Order shall be freely granted.

(6) Settlement Discussions. No later than 35 days after the case is at issue, the parties shall explore possibilities of a prompt settlement or resolution of the case.

(7) Statement of Facts, Issues, and Points of Law. The parties shall include in the Certificate of Compliance a plain, concise statement of any undisputed facts material to the case and of the issues the parties claim or concede to be in dispute. Additionally, brief and concise statements of all points of law that are to be relied upon by each party, citing pertinent statutes, ordinances, regulations, standards, cases and other authority shall also be included. Legal argument is neither required nor desirable. Nothing herein shall prevent the inclusion of additional issues in the trial management order or Rule 56 motions based upon disclosures and discovery.

(8) Certificate of Compliance. No later than 45 days after the case is at issue, the responsible attorney shall file a Certificate of Compliance. The Certificate of Compliance shall state that the parties have complied with all requirements of subsections (b)(3)–(7), inclusive, of this Rule or, if they have not complied with each requirement, shall identify the requirements which have not been fulfilled and set forth any reasons for the failure to comply.

(9) Time to Join Additional Parties and Amend Pleadings. The time to join additional parties and amend pleadings shall be in accordance with C.R.C.P. 16(b).

(10) Pretrial Motions. Unless otherwise ordered by the court, the time for filing pretrial motions shall be no later than 35 days before the trial date, except for motions pursuant to C.R.C.P. 56, which must be filed no later than 90 days before the trial date.

(11) Discovery Schedule. Until a case is at issue, formal discovery pursuant to C.R.C.P. Rules 26 through 37 shall not be allowed. Informal discovery, including discussions among the parties, disclosure of facts, documents, witnesses, and other material information, field inspections and other reviews, is encouraged prior to the time a water case is at issue. Unless otherwise directed by the water court or agreed to by the parties, the schedule and scope of discovery shall be as set forth in C.R.C.P. 26(b). The date for completion of all discovery shall be 50 days before the trial date. The Certificate of Compliance must contain a certification that counsel have advised their clients of the estimated costs and fees involved in conducting such discovery.

(c) Modified Case Management Order. Any of the provisions of section (b) of this Rule may be modified by the entry of a Modified Case Management Order pursuant to this section.

(1) Stipulated Modified Case Management Order. No later than 45 days after the case is at issue, the parties may file a Stipulated Proposed Modified Case Management Order, supported by a specific showing of good cause for each modification sought including, where applicable, the grounds for good cause pursuant to C.R.C.P. 26(b)(2). Such proposed order need only set forth the proposed provisions which would be changed from the Presumptive Case Management Order set forth in section (b) of this Rule. The Court may approve and enter the Stipulated Modified Case Management Order, or may set a Case Management Conference.

(2) Disputed Motions for Modified Case Management Orders. If any party wishes to move for a Modified Case Management Order, lead counsel and any unrepresented parties shall confer and cooperate in the development of a Proposed Modified Case Management Order. A motion for a Modified Case Management Order and one form of the proposed Order shall be filed no later than 45 days after the case is at issue. To the extent possible, counsel and any unrepresented parties shall agree to the contents of the Proposed Modified Case Management Order but any matter upon which all parties cannot agree shall be designated as "disputed" in the Proposed Order. The proposed Order shall contain specific alternate provisions upon which agreement could not be reached and shall be supported by specific showing of good cause for each modification sought including, where applicable, the grounds for good cause pursuant to C.R.C.P. 26(b)(2). Such motion need only set forth the proposed provisions which would be changed from the Presumptive Case Management Order set forth in section (b) of this Rule. The motion for a Modified Case Management Order shall be signed by lead counsel and any unrepresented parties, or shall contain a statement as to why it is not so signed.

(3) Court Ordered Modified Case Management Order. The Water Court may order implementation of a Modified Case Management Order if the Court determines that the Presumptive Case Management Order is not appropriate for the specific case. The Court shall not enter a Court Ordered Modified Case Management Order without first holding a Case Management Conference pursuant to C.R.C.P. 16(d).

(d) C.R.C.P. 16(d) shall apply to any disputes concerning a Proposed Modified Case Management Order described in Rule 11(c) above. A request for a Case Management Conference shall be made at the time for filing the Certificate of Compliance.

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