Preliminary Findings on the Colorado Civil Access Pilot Project

Abstract

Beginning in 2012, Colorado instituted a pilot project in five state district courts to test a new set of pretrial procedures for civil business cases. These procedures relate to pleadings, disclosures, discovery, and case management. This report contains the preliminary findings from IAALS’ evaluation of the project. As a whole, the Colorado Civil Access Pilot Project (CAPP) appears to have succeeded in achieving many of its intended effects: The docket study shows that CAPP reduces the time to resolution over both existing procedures (standard and simplified). Moreover, 80% of surveyed attorneys indicated that the time was proportionate to the subject CAPP case and 81% of surveyed judges indicated that the process allowed sufficient time to fairly resolve the CAPP cases on their dockets. The docket study shows that CAPP cases are more likely to have a single judge. In addition, the parties are 540% more likely to see that judge earlier and will see him or her twice as often. CAPP’s early, active, and ongoing judicial management of cases received more positive feedback in the surveys than any other aspect of the project, with many calling for it to become a permanent feature of the rules. Surveyed judges consider the initial case management conference to be the most useful tool in shaping the pretrial process (discovery and timelines) proportionately to the dispute. A majority of surveyed attorneys with discovery in their subject CAPP case indicated that the discovery actually conducted was either less than or equal to the amount set forth in the initial case management order (98%), proportionate to the needs of the case (70%), and resulted in effective information exchange (just over half). The docket study and survey data suggest that CAPP reduces motions practice (although the project has not had an effect on the number of early motions to dismiss). Three out of four surveyed attorneys indicated that litigation costs were proportionate to the subject case. The docket study and survey data indicate that the CAPP process is not tilted in favor of either plaintiffs or defendants. Specific parts of the rules have presented challenges that ought to be considered in any future rulemaking process: The rolling and staggered deadlines for the initial stages of the CAPP process (pleadings, initial disclosures, and the initial case management conference) raise logistical issues and tend to fall apart in more complex cases. In addition, the plaintiff’s responsibility to file initial disclosures before the defendant appears raises concern about the resources expended to obtain a default judgment. There must be consistent compliance with and enforcement of the expanded pleading and disclosure requirements for them to have the intended effect of providing more information prior to discovery. While CAPP has resulted in a decrease in the number of motions for extension of time filed and granted, surveyed attorneys and judges find that the “extraordinary circumstances” standard is difficult to reconcile with the realities of practicing law and can, in some circumstances, be counterproductive to the goal of an efficient and cost-effective process. The CAPP definition of a “business action” has resulted in confusion and inconsistency in application. Finally, there are aspects of the pilot project about which conclusions cannot be drawn from the data. These include the effects of the expert witness limitations and the impact of the CAPP rules on the trial rate. IAALS will publish a final report in the fall of 2014 that will supplement our conclusions to the extent possible.