Tag Archives: Costs

Short Summary of notable changes to the Rules of Civil Procedure effective July 1, 2015

Major changes to the Colorado Rules of Civil Procedure have been in the works for the last few years.  The Civil Access Pilot Project tested many rule changes and the Court took comments and opinions from the public and attorneys earlier this year.  Those changes have now become a reality for civil litigators.  HERE IS A LINK TO THE REDLINE OF THE RULE CHANGES.

The Colorado Rules of Civil Procedure that have been amended are as follows: Rules 1, 12, 16, 16.1, 26, 30, 31, 33, 34, 37, 54, and 121 §1-22, and the Proposed Case Management Order.

If you are familiar with the CAPP Rules, many of these changes will come as no surprise. The new rules are not duplicative of the CAPP rules, however.

Also, the new “Proposed Case Management Order” is not the same as the old “ICMC Joint Reports” that were filed before.  In person or telephonic attendance at an initial case management conference is required unless dispensed of by the court upon the joint request of the attorneys.

CHANGES AND OFFICIAL COMMENTS WORTH NOTING INCLUDE:

Comments to CRCP 1:

“[1] The 2015 amendments are the next step in a wave of reform literally sweeping the nation. This reform movement aims to create a significant change in the existing culture of pretrial discovery with the goal of emphasizing and enforcing Rule 1’s mandate that discovery be administered to make litigation just, speedy, and inexpensive. One of the primary movers of this reform effort is a realization that the cost and delays of the existing litigation process is denying meaningful access to the judicial system for many people.

[2] The changes here are based on identical wording changes proposed for the Federal Rules of Civil Procedure. They are designed to place still greater emphasis on the concept that litigation is to be treated at all times, by all parties and the courts, to make it just, speedy, and inexpensive, and, thereby, noticeably to increase citizens’ access to justice.”

CRCP 16(11) & (12) – CASE MANAGEMENT:

(11) Discovery Limits and Schedule. Unless otherwise ordered by the court, discovery shall be limited to that allowed by C.R.C.P. 26(b)(2). Discovery may commence as provided in C.R.C.P. 26(d) upon service of the Case Management Order. The deadline for completion of all discovery, including discovery responses, shall be not later than 49 days before the trial date. The proposed order shall state any modifications to the amounts of discovery permitted in C.R.C.P. 26(b)(2), including limitations of awardable costs, and the justification for such modifications consistent with the proportionality factors in C.R.C.P. 26(b)(1).

(12) Subjects for Expert Testimony. The proposed order shall identify the subject areas about which the parties anticipate offering expert testimony; whether that testimony would be from an expert defined in C.R.C.P. 26(a)(2)(B)(I) or in 26(a)(2)(B)(II); and, if more than one expert as defined in C.R.C.P. 26(a)(2)(B)(I) per subject per side is anticipated, the proposed order shall set forth good cause for such additional expert or experts consistent with the proportionality factors in C.R.C.P. 26(b)(1) and considering any differences among the positions of multiple parties on the same side as to experts.

CRCP 26(b)(4)(D) – DISCLOSURES (limitations):

(D) Rule 26(b)(3) protects from disclosure and discovery drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded, and protects communications between the party’s attorney and any witness disclosed under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(I) relate to the compensation for the expert’s study, preparation, or testimony;

(II) identify facts or data that the party’s attorney provided and which the expert considered in forming the opinions to be expressed; or

(III) identify the assumptions that the party’s attorney provided and that the expert relied on in forming opinions to be expressed.

COMMENT 20 TO CRCP 26 also notes the following about expert disclosures:

“The 2015 amendment also requires that, if a deposition reveals additional opinions, previous expert disclosures must be supplemented before trial if the witness is to be allowed to express these new opinions at trial. Rule 26(e). This change addresses, and prohibits, the fairly frequent and abusive practice of lawyers simply saying that the expert report is supplemented by the “deposition.” However, even with the required supplementation, the trial court is not required to allow the new opinions in evidence.”

CRCP 33(b)(1) – INTERROGATORIES

(1) An objection must state with specificity the grounds for objection to the Interrogatory and must also state whether any responsive information is being withheld on the basis of that objection. A timely objection to an Interrogatory stays the obligation to answer those portions of the Interrogatory objected to until the court resolves the objection. No separate motion for protective order pursuant to C.R.C.P. 26(c) is required.

CRCP 34 – REQUESTS FOR PRODUCTION

COMMENT 3:

“[3] Rule 34 is changed to adopt similar revisions as those proposed to Fed. R. Civ. P. 34, which are designed to make responses to requests for documents more meaningful and transparent. The first amendment is to avoid the practice of repeating numerous boilerplate objections to each request which do not identify specifically what is objectionable about each specific request. The second amendment is to allow production of documents in place of permitting inspection but to require that the production be scheduled to occur when the response to the document request is due, or some other specific and reasonable date. The third amendment is to require that when an objection to a document request is made, the response must also state whether, in fact, any responsive materials are being withheld due to that objection. The fourth and final amendment is simply to clarify that a written objection to production under this Rule is adequate to stop production without also filing a motion for a protective order.”

CRCP 37 – DISCOVERY SANCTIONS

COMMENT 3:

“[3] The threat and, when required, application, of sanctions is necessary to convince litigants of the importance of full disclosure. Because the 2015 amendments also require more complete disclosures, Rule 37(a)(4) now authorizes, for motions to compel disclosures or discovery, imposition of sanctions against the losing party unless its actions “were substantially justified or that other circumstances make an award of expenses manifestly unjust.” This change is intended to make it easier for judges to impose sanctions.”

CRCP 121 1-22 COSTS AND ATTORNEY FEES

COSTS. A party claiming costs shall file a Bill of Costs within 21 days of the entry of order or judgment, or within such greater time as the court may allow. The Bill of Costs shall itemize and provide a total of costs being claimed. Taxing and determination of costs shall be in accordance with C.R.C.P. 54(d) and Practice Standard § 1-15. Any party that may be affected by the Bill of Costs may request a hearing within the time permitted to file a reply in support of the Bill of Costs. Any request shall identify those issues that the party believes should be addressed at the hearing. When required to do so by law, the court shall grant a party’s timely request for a hearing. In other cases where a party has made a timely request for a hearing, the court shall hold a hearing if it determines in its discretion that a hearing would materially assist the court in ruling on the motion.

 

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Filed under Commentary, Proceedure

James C. Smith and Dona Laurita, v. Alan W. Kinningham and Accelerated Network Solutions, Inc., 2013COA,103 (July 3, 2013)

After all these years, rear-end car accidents still produce new law. Here, the court of appeals held that evidence of Medicaid benefits were properly excluded by the collateral source rule. Under CRS 10-1-135, any collateral source payment is excluded from evidence. Medicaid payments are a collateral source, and the statute abrogated the common law “gratuitous government benefits exception.”  Plaintiffs’ claims against ANS, the company insuring the car, were dismissed; thus, ANS as the prevailing party was entitled to costs but not fees because the claims were not frivolous. The remaining issues got short shrift: 1) the sudden emergency doctrine has been abolished; 2) a party who requests a hearing on costs is entitled to one; 3) Plaintiffs were awarded appellate fees because Defendants frivolously argued for a new trial under CRCP 59 based on a requirement that did not exist.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA0156%20&%2012CA0157-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9020&courtid=1

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Filed under Evidence, Personal Injury, Torts

Moye White LLP v. David I. Beren, 2013 COA 89 (June 6, 2013)

“We all get a second chance; it’s called tomorrow.” Anon. Moye White (MW) represented David Beren in probate litigation. MW employed and assigned to Beren’s case an attorney with a past of disciplinary proceedings, mental illness, alcoholism, and related arrests. MW sued Beren for its attorneys’ fees; Beren counterclaimed for breach of fiduciary duty claiming he should have been told about the attorney’s history. The court of appeals disagreed; a law firm does not have a duty to disclose such history to a client. Any risk posed by an attorney’s past conduct is speculative, and therefore not material. For the same reason, no ethical duty to disclose such information exists under professional conduct rules 1.4 or 7.1. The court of appeals also upheld costs awarded MW for uploading documents into a document review platform and costs incurred after a pretrial offer of settlement.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA0954-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8973&courtid=1

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Filed under Attorney Regulation, Contracts, Torts

CRCP 16.1: Under a Microscope, Open for Discussion

The Institute for the Advancement of the American Legal System has released its report examining CRCP 16.1. That Rule provides for a simplified pretrial procedure for actions seeking $100,000 or less from any one party. The original goal was to reduce the time to disposition and reduce costs for litigants. IAALS’s survey, however, suggests it has not been particularly effective, and that it does not address the concerns of litigants. For example, it notes that attorneys are highly skeptical of using disclosures as an alternative to discovery. The following commentary in the report is particularly enlightening:

“One attorney noted that the disclosure process has become ‘an art in evasion,’ another likened the task of continually having to request disclosure of relevant information to ‘pulling teeth,’ and a third noted the inability to ‘test the completeness and accuracy’ of disclosures.”

To read the full report, click HERE.

Click HERE for a link to a point/counter-point discussion on CRCP 16.1 in The Colorado Lawyer. (Please note that the document opened properly using Internet Explorer, but not with Google Chrome).

The CLR would like your opinion — please leave a comment below. (Please note comments may be submitted anonymously  and are moderated before they are posted.)

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Extreme Construction Co. v. RGC Glenwood, LLC and Mike Spradlin, 2012COA220 (December 27, 2012)

Ambiguity keeps lawyers employed. In this case, a construction contract had an ambiguous “Cost/Plus” price provision that “included, without limitation” “wages [of] construction workers directly employed.” Owner believed the price was limited to the actual cost of wages. Builder believed “costs” referred to fixed wage rates that included unemployment insurance, workers’ compensation, and other expenses. Owner did not object to Builder’s interpretation until after litigation arose. The court of appeals held that Owner was estopped from arguing his interpretation was correct because he had full knowledge of the facts, unreasonably delayed, and Builder detrimentally relied on Owner’s delay. This was the first time a Colorado court applied the equitable estoppel doctrine to the interpretation of an ambiguous contract. It was remanded to recalculate damages.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0084-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8788&courtid=1

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David Hiner and Deelila Quick v. Bruce Johnson M.D. and Michael King, M.D., 2012COA164 (October 11, 2012)

Attorneys’ fees, or the denial of them, can add insult to injury. In this case plaintiffs sue a hospital and doctors for a wrongful death during surgery. The hospital settles. The doctors win at trial, but do not assert counterclaims. The prevailing doctors are awarded statutory costs and attempt to secure payment of those costs from plaintiffs’ settlement proceeds by obtaining a writ of attachment. CRCP 102 controls such writs. The court of appeals held that the writ was improper because CRCP 102 does not authorize writs for non-counterclaiming defendants. If a writ is wrongfully issued to a plaintiff, a defendant is entitled to costs for defeating the writ. But, the Rule does not authorize costs to plaintiffs who defeat improper writs obtained by non-counterclaiming defendants. Plaintiffs’ request for fees and costs for defeating the writ was, therefore, properly denied.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/10CA1846-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8689&courtid=1

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Filed under Torts