Vol. 29, No. 1
Two Perspectives of the Results of the C.R.C.P. 16 and 26 Survey
by Peter Goldstein, William L. West
The Litigation Section of the CBA sponsored the study of the workings of C.R.C.P. 16 and 26. The complete study is available at: www.cobar.org/CRCP16_26.htm. A summary of the survey results was published in the December 1999 issue of The Colorado Lawyer at page 17. Two perspectives of the results and their significance are presented below. The first perspective is by Peter Goldstein, a member of the CBA Litigation Section Council; the second is by Judge William West of the 19th Judicial District. These perspectives are of those of the individuals who wrote them and may not represent other points of view. However, it is hoped that this article will engender further discussion.
The Efficacy of the Rules
by Peter Goldstein
These Rules of Civil Procedure ("Rules") have been with us since January 1995 or for five calender years. To review the meaning of the survey, we need to go back to the stated purpose of Rule 16 when it was recommended for adoption. The committee indicated that "new Rule 16 . . . [is] designed to accomplish early purposeful and reasonably economical management of cases by the parties with Court supervision." For me, the purpose of the survey was to determine the extent to which the bench and bar believe that these changes to our Rules have been efficacious. Before we can judge esoteric concepts such as fairness and efficiency, we must first look at efficacy.
It is my conclusion that the change in the Rules has not been efficacious. My review of the survey results indicates that the reason the bench and bar believe these Rules not to be efficacious are the same reasons presented against the Rules’ adoption when they were adopted, four to three, by a vote of the Colorado Supreme Court.
For the most part, these Rules are based on their federal counterparts. They are based on the presumption that civil practitioners cannot and should not be trusted to manage litigation without court supervision. They are based on the presumption that a trial judge has the time, experience, and inclination to oversee and manage contested civil litigation more justly and efficiently than can the two opposing attorneys. It takes more than the good will of the lawyer to disclose smoking guns voluntarily. It also requires the assent of the client. I presume that the defense bar suffers from the same infirmity.
For whatever reason, in my opinion, the judicial officers involved do not have the time required, the inclination, nor, in most instances, the background or experience properly to enforce the true mandate of the Rules. Without enforcement, which is consistent and swift, no rule governing human conduct has ever been taken seriously. This survey results do nothing more than reveal to us that these Rules are no different.
The Judges’ Perspective
by William L. West
The Litigation Section of the Colorado Bar commissioned a comprehensive study of the perceptions of Colorado trial attorneys and judges concerning how Rule 16 and 26 are working. This article examines and compares the responses of attorneys to those of judges. At the outset, it should be noted that, although 50 percent of the district judges responded to the survey, this percentage only represents fifty-four judges. Thus, if 25 percent of the judges favor or oppose a particular statement, that equates to approximately thirteen judges. In the survey, there were sixty-five questions or statements directed to both attorneys and judges. In this article, no attempt is made to compare each question. However, some general observations are made, and a few differences and similarities are noted.
It appears that the more things change, the more they stay the same. In many significant areas, a large percentage of the attorneys and judges see little effect on the overall cost of litigation and the time it takes to get to trial. For example, they see no effect on the number of depositions, the number of discovery disputes, earlier settlement, overall fairness, or time from filing to disposition, just to name a few. The judges tend to believe the Rules are working and are more effective than do the attorneys. The great majority of judges would like to see more involvement by magistrates. Attorneys are less enthused. Judges tend to favor more control and greater limitations on discovery, particularly in the area of experts. Attorneys tend to favor more flexibility and fewer restrictions.
While the percentages vary, there are many areas in which the judges and attorneys agree. For example, 60 percent of the attorneys and 58 percent of the judges disagree with the statement: "Since the adoption, attorneys make threats and file motions less frequently." Since 25 percent of both were neutral, I would conclude that they both believe more motions are being filed. On the question of whether the scope of Rule 26 should be expanded, 23 percent of attorneys think it should be expanded, 32 percent think it should be limited, and 45 percent think it should remain the same. The percentages for the judges are, respectively, 16, 28, and 66 percent.
The judges and attorneys also have their differences. For example, 44 percent of the attorneys feel they have sufficient flexibility, while 66 percent of the judges believe attorneys have adequate flexibility. Only 23 percent of the attorneys feel the judges exercise adequate supervision compared to 40 percent of judges.
Not surprisingly, when the judges’ actions are involved, the judges perceive they are doing better than what the attorneys believe. Although the great majority of both attorneys and judges agree that Case Management and Trial Management Orders are signed in a timely manner, only 42 percent of the attorneys think that discovery disputes are ruled on in a timely manner at least 50 percent of the time, and only 25 percent think they are timely ruled on 75 percent of the time. On the other hand, the judges believe they timely rule 79 percent of the time.
One interesting response related to the perception of fairness. Fifty-five percent of the attorneys view Rule 16 as fair to both plaintiffs and defendants compared to about 75 percent for judges, and 65 percent view Rule 26 as fair to both plaintiffs and defendants compared to 87 percent for judges. Only 23 percent of the attorneys view Rule 16 as fair to pro se litigants compared to 55 percent of the judges. Nearly 30 percent of both judges and attorneys feel that pro se parties are not treated fairly by Rule 16.
Just a few words about the separate survey completed by the judges. While it indicates that the Rules have improved the judges’ ability to manage cases, and have improved trial preparation, the survey respondents do not believe the Rules have reduced the time to trial, the number of motions, or the number of discovery disputes, and have not improved the judges’ effectiveness in controlling the various aspects of pre-trial preparation.
Overall, the study indicates the problems and consequences of the Rules are not as severe as hallway conversations and coffee shop talk might have indicated. On the other hand, the respondents appear to believe that the goals the Rules sought to achieve—to reduce discovery disputes, reduce the cost of litigation, encourage settlement, and bring the case to trial sooner—have not been accomplished.
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