Garfield & Hecht, P.C
Important Changes to Colorado Rules of Civil Procedure 16.1, Simplified Procedure for Civil Actions
The Colorado Supreme Court recently made significant changes to Colorado Rules of Civil Procedure 16.1, Simplified Procedure for Civil Actions (Simplified Procedure). The two most important changes concern the elimination of the voluntary exclusion provision and the amount of discovery of that is allowed in Simplified Procedure cases. As it stands, the rule now automatically applies to almost all civil cases seeking less than $100,000 in damages and filed in district court after September 1, 2018. Because there is no longer an option to opt out of Simplified Procedure, it is important to understand the contours of the revised rule.
The Colorado Supreme Court originally adopted Simplified Procedure in 2004 with the goal of increasing access to justice for most parties by reducing the cost of litigation for claims under $100,000 and by reducing delays in the courts. However, the 2004 version of the rule had a voluntary opt-out provision, which the majority of lawyers in applicable civil cases ended up using. As a result, the Colorado Supreme Court amended the rule so that there is no longer a voluntary exclusion provision. Now, there are only two types of cases that qualify for exclusions from mandatory Simplified Procedure. The first exclusion applies to special case types designated as: “class actions, domestic relations, juvenile, mental health, probate, water law, forcible entry and detainer, C.R.C.P. 106 and 120, or other similar expedited proceedings.” C.R.C.P. 16(b)(1).
The second exclusion involves cases seeking more than $100,000 in damages. C.R.C.P. 16(b)(2). To note, the new version of C.R.C.P. 16(b)(2) is different from the 2004 version. Now awardable attorneys’ fees may no longer be counted toward the $100,000 figure and, in cases in which parties are not allowed to state the amount of their claimed damages in their prayer for relief (e.g., professional liability cases), a party or party’s attorney may sign a statement that they have a reasonable belief that damages will exceed $100,000, provided that any such statement is government by C.R.C.P. 11.
Regardless of the stricter new rule, there are still a few escape hatches from Simplified Procedure. If, as the parties conduct discovery, one party discovers that its damages may exceed $100,000, then that party may move to have the case transferred out of Simplified Procedure. The trial court, in its discretion, may also decide to move the case out of Simplified Procedure based on the complexity of the case. Examples of cases that a trial court may decide to move out of Simplified Procedure may include cases that challenge the constitutionality of laws or procedures, cases that seek declaratory judgments or injunctions, or cases that raise other important or complex legal issues.
Specifically, C.R.C.P. 16.1(d) describes the procedure for filing a motion to move a case out of Simplified Procedure. C.R.C.P. 16.1(d) states:
Simplified Procedure shall apply unless, no later than 42 days after the case is at issue as defined in C.R.C.P. 16(b)(1), any party files a motion, signed by both the party and its counsel, if any, establishing good cause to exclude the case from the application of Simplified Procedure. (1) Good cause shall be established and the motion shall be granted if a defending party files a statement by its attorney or, if unrepresented, by the party, that “In compliance with C.R.C.P. 11, based upon information reasonably available to me at this time, I certify that the value of this party’s claims against one of the other parties is reasonably believed to exceed $100,000”
(2) The trial court, in its discretion, may determine other good cause for exclusion, considering factors such as the complexity of the case, the importance of the issues at stake, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of proposed discovery outweighs its likely benefit.
Additionally, the Colorado Supreme Court has loosened the rules around discovery, in recognition that many parties previously opted out of Simplified Procedure because the 2004 rule severely limited discovery and did not allow depositions. As a result, each party may now take a total of six hours of depositions. C.R.C.P. 16.1(k)(4)(A). Parties may also make five requests for production of documents and parties may request discovery pursuant to C.R.C.P. 34(a)(2) (inspection of property) and C.R.C.P. 35 (medical examinations). See C.R.C.P. 16.1(k)(4)(B)-(C).
In sum, the Colorado Supreme Court anticipates that eliminating the opt-out provision and subjecting a broader range of cases to Simplified Procedure will improve litigants’ access to justice and make litigating smaller cases more efficient. Yet, because litigating under Simplified Procedure also comes with many restrictions, when initiating a lawsuit, a party must think hard about the damages they are seeking, the discovery that is necessary to prove their case, and any other implications of litigating under the framework of Simplified Procedure.
For further information about this article or any matters involving commercial civil litigation, please contact Chris Bryan in our Aspen office at 970-925-1936, Ext. 802, moc.t1566702388hcehd1566702388leifr1566702388ag@na1566702388yrbc1566702388; and Kerry Galusha also in our Aspen office at 970-925-1936, Ext. 291, moc.t1566702388hcehd1566702388leifr1566702388ag@ah1566702388sulag1566702388k1566702388