Denver Bar Association
April 2004
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Alert! Court Rules Simplify Civil Procedure

by Marshall Snider

The Colorado General Assembly, tired of hearing complaints about overcrowded courts and staff shortages in the judicial branch, has taken the bold step of passing legislation to amend the Colorado Rules of Civil Procedure in order to address these problems. For several months, the legislature considered proposals to make civil litigation less complex and expensive, particularly in cases with smaller monetary amounts at stake. These proposals have led to much debate and discussion. Although everyone agreed that civil actions should be less complicated and expensive to litigate, the proposals revealed that there was much disagreement about how these goals should be accomplished.

H.B. 04-1847 resolved the debate by repealing Rules 12, 16, 16.1, 26 through 37 and 56 of the Colorado Rules of Civil Procedure. The effect of this action is to eliminate all discovery and motions practice, returning to what one court observer described as "the good old days" of trial by ambush. At the hearings in the House Judiciary Committee, witnesses reasoned that without pesky interruptions such as motions to dismiss or motions for summary judgment, and absent discovery (the elimination of which carries with it the salutary effect of removing discovery disputes from the calendars of trial courts), cases will move much more quickly through the trial process. In addition, parties will be able to better afford lawyers, who now will not have to bill for these expensive services.

Proponents of the rule changes also note that without any idea of what an opponent’s case is about, and absent the ability to go into court prepared for whatever is coming, litigants will be much more amenable to early settlements. Court dockets will be reduced appreciably, allowing those few cases with parties angry enough or crazy enough to set foot into a courtroom to have their cases heard within weeks of filing, rather than years, as is the current practice.

Opponents of this massive restructuring of the rules expressed concern that without discovery or the ability to test pleadings through motions, a civil trial will no longer constitute a search for the truth and trials will not generate just results. However, at the legislative hearings on the proposed rule changes, the committee received persuasive testimony that, as legal scholars have noted for years, litigated cases are decided not on the basis of facts that actually happened in the past, but on what a court or jury finds happened (based on such information or celestial events as the fact-finders care to use as a basis for that determination). Accordingly, many witnesses at the hearings pointed out that the current civil litigation process does not generate a determination of the true facts or a just result. Of course, neither will the new system, but at least litigation under the new rules will be cheap. State House insiders have told The Docket that in the end, the legislators reasoned that if the results of civil
trials would not be much different with or without motions and discovery, why not at least get the litigation over with quickly and inexpensively so everyone can go play golf.

The legal community has responded swiftly to the new changes. Many lawyers expressed pleasure at the idea of filing a couple of pleadings and then having to do nothing until they stepped into the courtroom. Law firms throughout the state began dismantling litigation departments and dumping canned motions and discovery requests from their computers (freeing up substantial space on their hard drives, which can now be used to circulate jokes by
e-mail). Figuring that knowledge of courtroom tactics will now be at a premium, CLE providers have increased their offerings of programs on these skills and have contracted for training with the drama departments of several colleges and universities.

The attitude of many members of the bar regarding the return to trial by combat and surprise was perhaps best summed up by a recent graduate of the Aspen College of Law, Dr. Hunter S. Thompson, who told The Docket that "it’s about time we returned to our heritage of frontier justice, when trials were swift and the rope was short. Now we can herd those scum-sucking so-called ‘trial lawyers’ back behind their desks where they belong, while those of us with real trial skills can put our six-guns on the table and make a bona fide difference in the justice system."


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