Vol. 28, No. 12
A Summary of Results of the C.R.C.P. 16 and 26 Survey
by Linnea Brown
In January 1998, the Colorado Bar Association Litigation Section Council1 authorized and began efforts to conduct a statewide survey concerning C.R.C.P. Rules 16 and 26. An Ad Hoc Committee2 was formed with the financial support and guidance of the Litigation Section. The survey was mailed to attorneys in late March 1999, and the results were tabulated and reported in September 1999 through a professional survey firm. This article summarizes results; it is not intended to interpret the results for purposes of any action. The full survey results are available on the Colorado Bar Association website (www.cobar.org/CRCP16_26.htm) or on CD-ROM [contact Melissa McClerkin, CBA Section and Committee Liaison, at (303) 824-5321; fax, (303) 894-0821; e-mail, melissam@cobar. org]. A few reactions of representative bar members to the survey results will be published in the January 2000 issue of The Colorado Lawyer.
Survey responses were received from 754 attorneys and 54 judges. Of those who responded, 296 state they are primarily plaintiff attorneys and 198, defense attorneys. Of the attorney respondents, 492 have had five or fewer cases go to trial in the last three years, and 120 have had more than ten cases go to trial in the same period. A significant percentage of respondents are neutral on each question, commonly as high as from 20 to 25 percent. In reporting the results, this article aggregates the answers for strongly agree with agree and strongly disagree with disagree. Lengthy narrative comments are part of the report and are not included in this summary.
Rule 16 Issues
Enhanced Professionalism and Cooperation: When asked whether they believe that Rule 16 has enhanced professionalism, 43 percent of the attorneys disagree and 30 percent agree. On the question regarding whether Rule 16 enhances cooperation, 37 percent of the attorneys disagree, compared with 41 percent who agree. Notably, when these results are broken out by the size of judicial district or by the number of cases the responding attorney has actually tried recently, the results are different. The opinions of attorneys practicing in large- or medium-sized judicial districts are consistent with the majority. However, attorneys practicing in small districts disagree that Rule 16 enhances professionalism or cooperation by 50 and 47 percent, respectively. Similarly, although responses of attorneys who have tried five or fewer cases in the last three years match the aggregate opinions on these issues, attorneys who have tried ten or more cases in the last three years disagree in a much higher percentage--58 and 47 percent, respectively. In contrast, judges believe Rule 16 has enhanced professionalism (33 percent), although more (50 percent) believe that it has enhanced cooperation.
Reduction of Filing Motions: Relatively few respondents (fewer than 20 percent) believe that Rule 16 has resulted in a reduction of attorneys filing motions or threatening to file them. Indeed, 65 percent disagree with the statement that Rule 16 has those results.
Responses Regarding the CMO/TMO: Generally, a majority of respondents believes that the Case Management Order/Trial Management Order ("CMO/TMO") is fair to both plaintiffs and defendants. However, significantly more judges and defense counsel express this belief. Sixty-seven percent of the attorney respondents and 78 percent of the judge respondents believe that the CMO is a useful organizing tool. Notably, the lowest percentage of respondents with this belief are those attorneys who have tried ten or more cases in the last three years, but even 55 percent of them agree. A lower percentage of all respondents believe that the CMO time periods are reasonable.
Judges are the only group of respondents who believe the TMO is superior to the former disclosure certificate (66 percent). About half of the respondents believe that the thirty-day deadline for the filing of the TMO encourages efficient trial preparation. Sixty-five percent of the attorney respondents and 77 percent of the judge respondents believe that the TMO covers the essentials necessary to prepare for and manage the case in trial. Only one-third of the respondents believe that Rule 16 has made lawyers better prepared. About the same percentage believe that Rule 16 should provide for mandatory trial settings at the time of the filing of the CMO.
Conferring with the Client: Overwhelmingly, attorneys disagree with the idea that the requirement to confer with the client regarding the projected scope and cost of discovery has either reduced discovery costs or reduced conflicts between the attorney and client concerning discovery costs.
Court Intervention: Most lawyers and the judges believe that Rule 16 is sufficiently flexible that counsel are generally able to avoid court intervention by agreement of counsel. Only 20 percent of attorney respondents and 40 percent of judge respondents believe that the courts adequately supervise the requirements of Rule 16.
Magistrate Involvement: Approximately 50 percent of attorneys and 76 percent of judges believe that magistrates should be involved in discovery and case management matters.
Front Loading and Pro Se Litigants: Fifty percent of attorneys and judges believe that front loading of work and costs discourages the filing of smaller cases (i.e., a claim for less than $50,000). Only 25 percent of attorney respondents (but 55 percent of judge respondents) believe that Rule 16 deals fairly with pro se litigants.
Rule 26 Questions
Mandatory Disclosure: When asked whether Rule 26 mandatory disclosures are fair to plaintiffs and defendants, approximately 65 percent of attorney respondents agree, whereas judge respondents agree at 87 percent. Similarly, 75 percent of the judges believe the time of disclosures is reasonable, while attorney respondents were split: 49 percent agree and 38 percent disagree.
Automatic and Scope of Disclosure: Most respondents (71 percent) believe Rule 26 automatic disclosures should not be eliminated. Most respondents disagree that eliminating initial disclosures would generally reduce discovery expenses without unreasonably interfering with the fair resolution of cases. Responses are evenly divided on whether the scope of disclosures should be limited to supporting information (45 percent agree and 43 percent disagree). As to the scope of the Rule 26(a)(1) disclosures, 45 percent believe the scope should be kept the same, 32 percent think they should be limited, and 23 percent think they should be expanded. These results differ between those respondents who consider themselves primarily defense lawyers and those who do plaintiffs work. Nearly half the defense group thinks that the disclosures should be kept the same, whereas only 17 percent believe they should be expanded. Within the plaintiffs group, 39 percent believe they should be kept the same, and 31 percent think they should be expanded. Sixty-six percent of the judges think they should be kept the same.
Regarding whether the scope of the disclosures for experts is reasonable, 60 percent of the respondents agree, 17 percent are neutral, and 23 percent disagree. Respondents in about the same percentages agree that plaintiffs should make their expert disclosures before defendants and that plaintiffs' expert disclosures should trigger defendants' disclosures within thirty days thereafter. However, on this issue, the percentages changed when comparing defense and plaintiff counsels' responses: fewer defense counsel agree.
Presumptive Limits: As to the presumptive limits on discovery, 45 percent believe they are reasonable; in contrast, 34 percent do not. In two of the few almost unanimous responses, 92 percent of the respondents think that parties should be able to stipulate to discovery beyond the present presumptive limits without consent of the court and that parties should be able to adopt special procedures with the concurrence of the court. On these two issues, only 5 percent and 6 percent, respectively, disagree, whereas only 3 percent and 2 percent, respectively, are neutral.
A high percentage (88 percent) believe that the presumptive limit of depositions of "two other persons" and the provision that a party may depose any person who has been identified as an expert should be interpreted to allow depositions of two non-parties, plus experts. Fifty-four percent disagree (and 33 percent agree) with the idea of limiting the number of depositions of expert witnesses, although the percentages vary when comparing the results by defense versus plaintiff counsel (62 percent of defense counsel disagree compared to 43 percent of plaintiff counsel).
Stay of Discovery: Respondents are split on whether discovery should be stayed until the CMO is submitted, unless otherwise ordered (44 percent disagree; 44 percent agree).
Reduction of Discovery Expenses: Similarly, the respondents are only slightly more in agreement than disagreement with the idea that imposing sanctions more frequently for violations of disclosure and discovery rules would generally reduce discovery expenses without unreasonably interfering with the fair resolution of cases. In contrast, 68 percent of the respondents believe that increasing the availability of district or magistrate judges to resolve disclosure and discovery disputes would generally reduce discovery expenses without unreasonably interfering with the fair resolution of cases (only 15 percent disagree).
Compliance with Rule 26(a)(1) disclosure requirements has increased client litigation expenses for 58 percent of the attorneys who responded. For 34 percent, it has had no effect; for 8 percent, it reduced the client expense. The disclosure requirements have had no effect on the number of depositions, according to 67 percent of the attorneys, while 21 percent say the disclosures have reduced the number of depositions, and 12 percent think it increased it. Of the attorney respondents, 59 percent believe that the disclosures have not affected the number of discovery disputes (18 percent think they have reduced them compared to 23 percent who think they have increased them).
Earlier Settlement: Approximately three-quarters of the respondents think the initial disclosures have had no effect on earlier settlement. Generally, the survey responses were similar on the effects of the expert disclosure requirements of Rule 26: no effect on overall client expenses; no effect on fairness, settlement, or discovery disputes; and no effect on number of expert depositions or on the time from filing to disposition.
These survey results are not obvious nor predictable, and may be different from those many might have expected. The CBA Litigation Section Council has not made any recommendations for changes. It is hoped that this survey proves helpful to the decision-making process. We invite comments from readers to members of the Council3 in anticipation that the CBA or Supreme Court may wish to consider action based on the survey results.
1. The Council includes Rebecca Koppes Conway (Chair), Linnea Brown, Peter Goldstein, Alden V. Hill, Irving Johnson, Michael McLachlan, John Purvis, Marcus Squarrell, and Jerry Tomkins.
2. The Rule 16 and 26 Ad Hoc Committee comprises Jerry B. Tomkins (Chair), Ron Carlson, Rob Baldwin, Marlin Burke, Andrew M. Toft, Michael Oldham, and Kurt Horton.
3. Supra, note 1.
Linnea Brown, Denver, is a partner with the firm of Holme Roberts & Owen LLP and a CBA Litigation Section Council member.
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