Supreme Court of Colorado
c/o Mr. Mac V. Danford
Clerk of the Supreme Court
Two E. 14th Avenue
Denver, CO 80203
Re: Proposed New C.R.C.P. 16.1 and Proposed Repeal of C.R.C.P. 26.3
Dear Honorable Justices of the Supreme Court of Colorado:
I am the current chair of the Litigation Section of the Colorado Bar Association. Upon seeing the request for input on proposed rule 16.1, I sent a request for comment to the membership of the Litigation Section. On the afternoon of August 21, the Section’s governing council met to review the numerous comments received from Section members and to discuss the council’s thoughts on the proposed rule. Several members of the council also held a telephone conference with Richard Holme on August 25 to try to better understand the reasoning of the Rules Committee and the genesis of the proposed rule 16.1. Based upon all of this information, the Litigation Section council has voted with unanimity to oppose this proposed rule, for the reasons explained below.
First, as reflected in some of the feedback we received from section members, we do not believe that this proposed rule is necessary or that it will really solve any perceived problems with cost and/or timely access to the courts. We feel very strongly that the majority of attorneys fully advise their clients of the costs of civil litigation and make informed decisions about the scope of necessary discovery, as tailored to the needs of a particular case. In fact, well-taken depositions of key parties or witnesses, and/or discovery of key documents which are often not voluntarily disclosed initially, are most often what lead to cases being settled prior to trial. In other words, reliable information about the other side’s case and an opportunity to assess witness credibility is what allows reputable lawyers to properly evaluate a particular case and advise their clients accordingly. Proposed rule 16.1 takes away this very valuable litigation tool, seemingly in response to the very small minority of attorneys and their clients that have used discovery as a weapon. Rules should never be fashioned for disreputable lawyers who practice in the minority.
During our review of this issue, we also pondered why, if this rule was so necessary, the Committee simply did not amend Rule 26.3 and change its application to cases up to $100,000. We were advised by Richard Holme that the Committee deemed Rule 26.3 to be unworkable, in part due to the costly mandatory ADR provisions. When asked why not just delete the ADR provisions and change the limit, we were advised that it would still be unworkable because attorneys have so seldomly utilized this rule. That is exactly our point. As discussed above, there are valid reasons why attorneys, in consultation with their clients, do not use this rule: because effective discovery works. We do not see proposed Rule 16.1 changing this fact, and we expect the vast majority of civil litigators to opt out of the rule if it is adopted in its current form and over these objections. Accordingly, we, on behalf of the CBA Litigation Section, most strongly urge that proposed Rule 16.1 not be adopted.
If, however, adoption of this Rule is already a foregone conclusion, we urge the Court to take a hard look at several of its provisions. First and foremost, we have serious concerns about the fact that attorneys and clients must “opt out” of the rule as opposed to “opting in” to the rule. We believe that this unnecessarily sets up the innocent, uninformed attorney or pro se party for potential error. It also builds in additional cost to a civil action at an early stage of the proceeding for the majority of litigating parties who will opt out of this rule’s application and have to go through the hassle of filing additional documents with the Court in order to do so in every instance.
In addition, we are very opposed to the provision that requires a client to sign off on the decision to opt out of the Rule. Again, this is not necessary, it is paternalistic and it appears to take aim at the very small number of attorneys who the Committee must presume would not consult with their clients on this issue. The council and several members of the Section are sincerely concerned about this provision and what appears to be a building trend toward requiring clients to sign pleadings more and more often. As discussed above, you cannot make rules based upon the minority and attempt to legislate behavior, and this is exactly what this proposed Rule attempts to do.
In short, the Litigation Section council is strongly opposed to proposed Rule 16.1. If something of this nature is nevertheless deemed necessary, then we suggest that the Court raise the limit in current Rule 26.3 to $100,000, take out the mandatory ADR provisions, and take the time to get additional input from the Bar about problems people may be having with the existing rule. We most definitely prefer an “opt in” to an “opt out” provision. We all believe strongly that reasonable discovery is what in fact enables proper cases to be settled early. We are happy to participate and help with input, and would be more than willing to survey the membership of the Litigation Section for additional feedback.
We would like the opportunity to provide you with further thoughts on these issues at the hearing scheduled for September 11, 2003, and would ask that you place representatives of the Litigation Section on the roster of those who wish to address the Court at that time. In the meantime, I am enclosing a compilation of some of the comments that we received from Litigation Section members for you to consider as well.
Thank you for considering these comments in your analysis and discussion of proposed Rule 16.1. We look forward to discussing these issues further at the hearing.
Kimberly B. Schutt
Chair, CBA Litigation Section