Thursday, January 6, 2011

Colorado Civil Access Pilot Project

The Colorado Supreme Court is enacting a new set of civil procedure rules specific to certain types of cases meant to streamline the litigation process and make civil cases more efficient and less expensive. The proposed rule changes, which have been dubbed the “Civil Access Pilot Project” (CAPP), will be enforced for a finite period before statewide implementation, where data will be collected and analyzed for the purpose of improving the rules based on actual experiences with cases.

CAPP focuses on two primary types of cases: business actions and medical negligence actions. The medical cases covered are those specifically alleging breaches of standard of care and which are covered under the Colorado Health Care Availability Act. On the other hand, a wide range of cases are implicated under the “business actions” umbrella, including: breach of contract; business torts; Uniform Commercial Code transactions; disputes involving commercial real property; owner/investor derivative actions; commercial class actions; business transactions with commercial banks or other financial institutions; internal affairs of business organization; commercial insurance coverage (including directors and officers, errors and omissions, business interruption, and environmental); dissolution of business entities; disputes involving securities laws; disputes involving antitrust laws; and disputes involving intellectual property and state trademark laws.

While CAPP intends, and in many ways establishes, a more efficient litigation process in regards to the specific cases to which it applies, there a few large pitfalls that have appeared. The biggest such pitfall involves Pilot Project Rule (PPR) 10 which concerns expert discovery. PPR 10.1(b) states that the “substance of each expert’s direct testimony shall be fully addressed in the expert’s report.” PPR 10.1(b) takes on significant importance when read with PPR 10.1(d): “There shall be no depositions or other discovery of experts.” Essentially, one report, no discovery, no deposition and we’ll see you in trial.

On top of that, PPR 10.2 limits the number of expert witnesses for parties to one expert witness per area of expertise. Each party may have one expert witness to submit a report and testify with respect to any given issue. Restrictions on expert witnesses go even farther in a medical negligence action, which PPR 10.3 governs. PPR 10.3 requires that expert witness reports shall be produced simultaneously with the allowance of rebuttal reports to be filed within 40 days of such simultaneous production.

Other minor drawbacks exist as well. The new rules have a definite harshness to them that previously did not exist. CAPP seems intent on informing attorneys “mistakes,” intentional or not, will be met with some form of punishment or sanctions. PPR 3.7 (a) – (e) lists out good examples of such punishments, but the essence of the new severity CAPP enforces is shown in the committee comments to PPR 1. The comments say that “motions for extensions are strongly disfavored. The court is encouraged to address these motions immediately . . . and deny them absent extraordinary circumstances. Parties may not stipulate to extensions.” [Emphasis added]. Such denial of party stipulations is an exact 180 degree change in attitude from C.R.C.P. 121, § 1-15(8) which exhorts a duty to confer. Such contradictions and inherent punishments will surely increase as the rules begin to be implemented.

It is important to note at this time that this is a pilot project and knowledge of where these rules will be implemented should they be deemed “successful” is currently unknown. Will they be restricted to the enumerated actions? Or will they be expanded until they govern all actions?

Accordingly, if one has questions or concerns about CAPP they can be voiced when The Proposed Civil Access Pilot Project will be considered at a public hearing on Wednesday, January 19, 2011 at 1:30 p.m. in the Colorado Supreme Court Courtroom, 101 West Colfax Avenue, Denver, Colorado 80202. The deadline for submitting written comments is January 14, 2011 at 5 p.m. An original and eight copies of the written comments concerning the CAPP should be submitted to Susan J. Festag, Clerk of the Supreme Court, 101 West Colfax Avenue, Suite 800, Denver, Colorado, 80202. Persons wishing to participate in the hearing should so notify Ms. Festag no later than Friday, January 14, 2011.

For additional information regarding Colorado construction litigation, please contact David M. McLain at (303) 987-9813 or by e-mail at mclain@hhmrlaw.com.

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The information contained in this blog is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter.