18 Aug Thinking About Suing? Do It Now Before Rule 16.1 Becomes Mandatory

This week Edwards Law kicks off a series of blogs concerning an important change in the way state court civil cases will be litigated in Colorado.  Today’s blog is a general overview of the change.  Bottom line, if you and your company are thinking about bringing a civil lawsuit in Colorado state court, do it before September 1, 2018.  Otherwise, Rule 16.1 stands to severely limit your ability to adequately prepare your case before trial and may force you into an unfavorable settlement.

The Current Rules Governing Civil Cases in Colorado State Court

Currently, you and your business can choose to bring a civil lawsuit in state court either under the typical rules of civil procedure (C.R.C.P. 16, 26-27, 31, 33, 36), or under the expedited rules of C.R.C.P. 16.1.  In a typical civil case with semi-complex issues, most attorneys would advise you and your business to opt out of the expedited procedures of Rule 16.1.  The benefit of the current rules, if you and your business can afford it, is that it gives the parties if needed sufficient time to flesh out the weaknesses in each other’s cases.  Unlike Rule 16.1 cases, a case brought under the typical rules of civil procedures could last anywhere from three months to a year, allowing the parties ample time for motion practice and time to conduct extensive discovery.  During this time, the parties are likely to discuss settlement numerous times, and almost always a case settles before it goes to trial.

Rule 16.1 Governs Civil Cases in Colorado State Court after September 1, 2018

Starting September 1, 2018, the rules of the game will change for most smaller, semi-complex district court civil cases.  As of this date, you and your business can no longer opt out of the simplified procedures of Rule 16.1.  As of September 1, 2018, Rule 16.1 automatically applies to cases seeking damages under $100,000 (exclusive of attorney’s fees and costs), unless the court approves a motion to exclude the case from the limitations of Simplified Procedure.  However because this decision will now be in the hands of the judge (and opposing counsel if they oppose the request), you are unlikely to be successful in removing the typical case from the expedited procedures of Rule 16.1.  For a very contentious case, this may mean the difference between successfully settling a case before trial or being ham-stringed into an unfavorable settlement because your opponent has successfully used the restrictions of Rule 16.1 against you.

While the new mandatory, expedited requirements of Rule 16.1 are meant to “secure the just, speedy, and inexpensive determination of every action”, the pressure on judges to quickly push cases through the system, combined with an unscrupulous opposing counsel’s goal to thwart your efforts to adequately establish your case, could adversely affect your ability to obtain a fair trial.

How Does the Court Determine If a Case is Seeking Damages “Under $100,000” Pursuant to Rule 16.1?

The determination of whether a case seeks damages under $100,000 has changed under the new Rule 16.1.  Now, this figure does not include attorney’s fees and costs, which makes it a little easier to determine whether your case is worth $100,000—especially if your case is based on a sum certain due to you under a promissory note.  However, if the amount of your damages is truly uncertain, and your attorney cannot certify under penalty of perjury that the damages in your case are reasonably expected to exceed $100,000, you have no choice but to submit to the expedited procedures of Rule 16.1 at an early point in the case (at the latest, 42 days after the case is “at issue”).

Changes to the Simplified Procedures of Rule 16.1 May Help A Little In Preventing Abuse of the New Rule

In anticipation of abuse and complaints about inadequacy in discovery allowances, the Colorado Supreme Court adopted additional changes to Rule 16.1 increasing the amount of discovery the parties can conduct in preparation for trial.  The details of these rules will be addressed in a subsequent blog, but suffice to say that the rules still allow an opponent to hamstring you into an unfavorable settlement if you determine that your case should be taken out of Rule 16.1 because it gives a dishonest opponent full discretion to block you from opting out via motion practice.

If you are considering bringing a lawsuit, call Edwards Law today for help in determining whether you and/or your business should bring your case before September 1, 2018.  The first call is always complementary.