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TCL > January 2011 Issue > Colorado at the Crossroads: Civil Access Pilot Project

January 2011       Vol. 40, No. 1       Page  17
In and Around the Bar
Civil Access Pilot Project

Colorado at the Crossroads: Civil Access Pilot Project
by Natalie Brown, Gilbert A. Dickinson, Ann B. Frick, Gordon W. Netzorg

About the Authors

Natalie Brown and Gilbert A. Dickinson are Co-Chairs of the Medical Negligence Subcommittee of the Colorado Pilot Project Committee. Ann B. Frick and Gordon W. Netzorg are Co-Chairs of the Committee’s Business Subcommittee. Readers may contact the authors with questions about information appearing in this summary: natalie@leventhal-law.com; gdickinson@dpai-legal.com; ann.frick@judicial.state.co.us; or snetzorg@shermanhoward.com


The Colorado civil justice system, like others across the nation, continues to be a crucial element in society; yet, some argue it is suffering from a crisis of cost and delay. It is important that members of the legal profession ensure our system remains accessible to and trusted by litigants. We must recognize the importance of access to trial by jury for civil litigants as a hallmark of the American system of justice.

What follows is an explanation of a proposal for Colorado, designed to reduce cost and delay in accessing the judicial system, increase access to the courts for Colorado citizens, and enable Colorado rule makers to make informed decisions about ongoing reform. The Notice of Public Hearing and request for comments regarding Colorado’s proposed Civil Access Pilot Project Rules, as well as the final draft of the proposed Rules, are printed in the Court Business section of this issue of The Colorado Lawyer beginning on page 123.

A Nationwide Problem and its Implications

The objective of the Federal Rules of Civil Procedure is to achieve the "just, speedy, and inexpensive determination of every action and proceeding."1 This same objective has been incorporated into many state rules of civil procedure, such as Colorado’s Rules of Civil Procedure.2 The reality today is that in federal and state courts across the nation, this objective is in danger of not being met, in large part due to prohibitive expense and unacceptable delay. This failure is resulting in reduced access to and loss of confidence in our civil justice system. It is important that innovative steps be taken to preserve the right to a jury trial and to enhance the accessibility of the courts for all.

Recent national surveys indicate that litigation costs are disproportionate to the value of small cases,3 and that costs are driving cases to settle for reasons unrelated to the substantive merits of the claims and defenses.4 Furthermore, these surveys suggest that attorneys and law firms are turning down cases because it is not cost-effective to take them, and the most commonly cited monetary floor for that decision is $100,000—suggesting the problem extends beyond the smaller cases.5

Another by-product of expense and delay is that trials are disappearing. In the last half-century, civil trials as a percentage of total dispositions in U.S. district courts have declined precipitously from 11.5 percent in 1962 to 1.8 percent in 2002,6 despite the fact that the number of civil filings in district courts has increased fivefold since 1962.7 In state courts, where the most cases are filed, there is a similar decline. In a survey of twenty-two states, the number of civil jury trials decreased by 32 percent from 1976 to 2002, during which time dispositions overall doubled in these courts.8 Data from the Colorado Judicial Branch Annual Statistical Reports indicate that trials—bench and jury—are rare in Colorado. At no time since 2002 did the trial rate exceed 1.7 percent of civil terminations; in several years, the trial rate was as low as one percent.9

Jurisdictions Respond

Access to justice and jury trials is not just an issue that concerns the indigent; increasingly, it concerns everyone. Moreover, the disappearance of the jury trial is one more loss of transparency and public input into the legal system. The reality of this situation demands action. One approach is to amend the process of civil litigation and see whether the changes reduce costs and increase efficiencies. Accordingly, a number of pilot projects of limited duration designed to test new rules and procedures are being developed and implemented in federal and state courts across the country.

In the U.S. District Court for the Northern District of Illinois, the Seventh Circuit Electronic Discovery Pilot Program commenced on October 1, 2009, developing as an outgrowth of widespread discussion about the rising burden and cost of electronic discovery.10 In Massachusetts, the Suffolk Superior Court Business Litigation Session implemented a pilot project, effective January 4, 2010, to address the increasing burden and cost of civil pretrial discovery, particularly electronic discovery.11 In New Hampshire, effective October 1, 2010, the Proportional Discovery/Automatic Disclosure (PAD) Pilot Rules Project in Strafford and Carroll County Superior Courts is designed to refocus the state civil justice system on the principle that the purpose of a trial is to do justice to the parties involved, which means a system that is efficient, affordable, and accessible to all citizens.12 Six counties in Oregon have implemented an expedited civil jury trial program, which is driven by a sharp decrease in the percentage of cases decided by a jury.13 Five other states have similar projects on the drawing board.

A Local Proposal

With similar concerns and goals in mind, a group of Colorado state court judges and practitioners (Colorado Pilot Project Committee or Committee) came together in late 2009 to explore whether there was a need in Colorado for a pilot project. The Committee agreed that a pilot project would be an appropriate mechanism for experimentation with, and evaluation of, potential changes to the state rules of civil procedure.

The Committee decided to focus on two case types: (1) medical negligence actions (those alleging a breach of the standard of care by a health-care provider and that are covered under the Colorado Health Care Availability Act); and (2) business actions (including business-to-business cases, as well as individuals versus business, and defined in more detail in an appendix to the rules). These case types provide an opportunity to experiment with solutions for two unique problems of excessive cost: extensive expert discovery in medical negligence actions and electronic document discovery in business actions.

The Committee designated two subcommittees for the purpose of drafting pilot rules for medical negligence and business actions. Membership in the subcommittees comprised practitioners from the specialty bars—representing plaintiff and defense perspectives—and a judicial representative. After crafting separate provisions for each case type, the subcommittees merged the provisions into a single set of pilot rules. For both case types, the proposed Civil Access Pilot Project Rules focus on early and meaningful exchange of information, active case management, and proportionate pretrial procedures. The Colorado Supreme Court is accepting written comments regarding the proposed Rules and will be holding a public hearing on the Rules on January 19, at 1:30 p.m. (See the Notice of Public Hearing on page 123 for complete information.)

From Proposal to Pilot Project

The Colorado Pilot Project Committee has engaged in an ongoing dialogue with the Colorado Supreme Court, the Chief Judge of the Colorado Court of Appeals, and chief judges and other judges handling civil cases in the metropolitan districts. The response has been overwhelmingly positive. Pending approval of the pilot project by the Colorado Supreme Court, judges in the First, Second, Seventeenth, Eighteenth, and Twentieth Judicial Districts stand ready to participate. All medical negligence and business actions filed in participating courtrooms in these districts would be subject to the Pilot Project Rules for two years after the effective date.

Judicial and attorney information programs are an important component of an implementation plan, to promote consistent application across jurisdictions within the spirit of the Rules. Furthermore, if approved, the pilot project will be thoroughly measured and evaluated to determine the effectiveness of its various provisions in terms of access, efficiency, fairness, and cost. In partnership with the National Center for State Courts (NCSC), the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver has developed a measurement protocol designed to determine the effects of procedural change.14 This protocol currently is being used in New Hampshire, where the NCSC is measuring the results of the PAD Pilot Rules Project.

Preliminary discussions with the Colorado State Court Administrator’s Office indicate that Colorado courts are technologically capable of recording and measuring a majority of the factors and events included in the protocol. Surveys of attorneys will collect objective measurements, such as the average number of sets of interrogatories and non-expert depositions, in addition to attorney assessments of the pilot’s processes and fairness. IAALS will use the data collected during the two-year pilot phase to evaluate the effectiveness of the project and then will communicate the results of the evaluation to those who will be deciding whether to make future amendments to the Colorado Rules of Civil Procedure.

Colorado Courts at the Crossroads

Colorado is not a state where civility and collegiality among counsel is the exception to the rule or where the public has completely lost faith in the system. We are fortunate to have a professional and courteous Bar, to have qualified and engaged judges, and to have a public that still looks to Colorado courts for the fair resolution of its disputes; however, we are not immune to rising costs, over-processing of cases, increased delay in case processing, and decreased access to the courts. Colorado’s judicial system can be a leader in improving the courts. Colorado judges and attorneys have an obligation to make our civil justice system the best it can be, and it is in this spirit that the pilot project was developed. We urge the Bench and Bar to join with the Committee in trying to develop a system that lives up to the goals it espouses: a just, speedy, and inexpensive process for the determination of all disputes.

Notes

1. F.R.C.P. 1 (2010).

2. See C.R.C.P. 1, Scope of Rules.

3. American Bar Association (ABA), "ABA Section of Litigation Member Survey on Civil Practice: Detailed Report" 2, 153 (Dec. 11, 2009), available at www.abanet.org/litigation/survey/docs/detail-aba-report.pdf; Hamburg and Koski, "Summary of Results of Federal Judicial Center Survey of NELA Members, Fall 2009" 13, 42 (March 26, 2010), available at www.nela.org/temp/ts_A74249C2-BDB9-505C-1B1A9C44FB4D30DAA74249D2-BDB9-505C-1065E115F8FA0A27/NELAReport032610.pdf.

4. Institute for the Advancement of the American Legal System (IAALS), "Interim Report & 2008 Litigation Survey of the Fellows of the American College of Trial Lawyers" 3, A-6 (Sept. 9, 2008), available at www.du.edu/legalinstitute/pubs/Interim%20Report%20Final%20for%20web1.pdf (IAALS Interim Report); ABA, supra note 3 at 157-72; Hamburg and Koski, supra note 3 at 43-44; IAALS, "Civil Litigation Survey of Chief Legal Officers and General Counsel Belonging to the Association of Corporate Counsel" 19 (2010), available at www.du.edu/legalinstitute/pubs/GeneralCounselSurvey.pdf.

5. ABA, supra note 3 at 173. See IAALS Interim Report, supra note 4 at A-6, B-1; Hamburg and Koski, supra note 3 at 45.

6. Galanter, "The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts," 1 J. Empirical Legal Stud. 459, 462-63 (2004), available at www.marcgalanter.net/Documents/papers/thevanishingtrial.pdf.

7. Id. at 486.

8. Ostrom et al., "Examining Trial Trends in State Courts: 1976–2002," 1 J. Empirical Legal Stud. 755, 768-69 (2004).

9. See Colorado State Judicial Branch, "Annual Statistical Reports," available at www.courts.state.co.us/Administration/Unit.cfm/Unit/annrep.

10. See Seventh Circuit Electronic Discovery Pilot Program Committee, "Seventh Circuit Electronic Discovery Pilot Program: Report on Phase One" 18 (2010), available at www.du.edu/legalinstitute/pdf/Chicago.pdf.

11. Press Release, Massachusetts Court System, "Superior Court Implements Discovery Pilot Project" (Dec. 1, 2009), available at www.mass.gov/courts/press/pr120109.html.

12. Rules of the Superior Court of the State of New Hampshire, "Superior Court PAD Pilot Rules (Proportional Discovery/Automatic Disclosure Pilot Project for Carroll and Strafford County Superior Courts)" 2-11 (2010), available at www.courts.state.nh.us/rules/sror/sror-h3-pilot%20project.htm.

13. Michaelis, "Pilot Project for Expedited Jury Trials," Oregon Law Practice Management (Aug. 19, 2010), available at oregonlawpracticemanagement.wordpress.com/2010/08/19/pilot-project-for-expedited-jury-trials.

14. National Center for State Courts and IAALS, "21st Century Civil Justice System: A Roadmap for Reform—Measuring Innovation" (2010), available at www.du.edu/legalinstitute/pdf/MeasuringInnovationforWeb.pdf.

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