So You’re Being Sued in Colorado State Court (Civil): 10 Things To Know
If it is your first time litigating a case in Colorado state court then you will be facing a learning curve. While experienced, thoughtful Colorado counsel is your best guide to navigating the local terrain, we hope these questions and answers will help orient you to the courts in the Centennial State.
1. How is the state court system structured?
For civil matters, cases will generally begin in either a county or district court. Each of Colorado’s sixty-four counties has a county court; in addition, the state is divided into twenty-two judicial districts, each encompassing between 1-7 counties. County courts are courts of limited jurisdiction and may hear only those civil claims that do not exceed $25,000; district courts, in contrast, are courts of general jurisdiction and may hear civil claims for any amount.
The courts serving Denver operate on a slightly different system than the rest of the state, in part because Denver is both a city and a county. Thus, Denver county court is funded entirely through Denver taxes, and its judges are appointed by the mayor of Denver, rather than the governor. By contrast, the Denver district court—which is referred to as the Second Judicial District, even though it encompasses only Denver county—is part of the state court system. Because Denver is the State’s capital, any lawsuit involving the constitutionality of a statute, an election, or a review of an administrative agency’s action, is most often filed and heard in Denver District Court.
A map of Colorado’s judicial districts is available here. Additional information concerning the division of cases between Colorado district and county courts may be found in Colo. Rev. Stat. §13-6-104.
The Colorado Court of Appeals has nineteen judges; the appellate court sits in divisions consisting of three judges. While the Court of Appeals sits in Denver, arrangements may be made for counsel to participate in oral argument remotely from a more conveniently located Colorado courthouse. The Colorado Supreme Court has seven justices and sits in Denver.
2. Who are the Colorado judges to whom my case could be assigned?
Colorado employs a merit selection system that relies on judicial nominating commissions to identify and recommend candidates to fill judicial vacancies. Briefly, each judicial district has a seven-person commission composed of citizens residing within the district; no more than four members of a commission may be from the same political party. Each commission is headed by a Colorado Supreme Court Justice. The commission interviews applicants for the county courts and the district court within that district, and recommends individuals to the governor for consideration and appointment. A new judge will be appointed for an initial 2-year term, after which s/he will stand for retention in the general election. County court judges then serve terms of four years, and district court judges terms of six years. The process for appointing new appellate and supreme court judges follows a similar process, but works through a state-wide commission. If the appellate judges or Supreme Court justices win retention, they then serve terms of eight and ten years, respectively. All Colorado state court judges must retire by the age of 72.
Specifics on the Second Judicial District (Denver): At the time of this writing, the Second Judicial District has twenty-three judges (legislation approving the addition of four new judges recently passed which will increase that to twenty-seven), and five magistrates who hear specialized dockets. Of the judges, currently eleven preside over civil cases. The judges’ assignments change over time, with the usual rotation being eighteen months in domestic relations, two years in criminal, and three years in civil.
3. Does Colorado allow for the recovery of attorney fees and exemplary (punitive) damages?
While Colorado follows the American Rule, under which attorney’s fees are not generally recoverable, the state recognizes numerous exceptions to the rule. For example, contractual fee-shifting provisions are generally valid under Colorado law, and a fee-shifting provision need not be mutual to be enforceable so long as it does not violate public policy.
Several statutes also allow for the recovery of attorney fees for particular types of claims. For example, attorney fees are allowed for claims brought under the Colorado Wage Claim Act (Colo. Rev. Stat. §8-4-110); claims brought against insurers for bad faith (Colo. Rev. Stat. §10-3-1116); claims brought under the Colorado Fair Debt Collections Practices Act (Colo. Rev. Stat. §12-14-113); claims brought under the Colorado Consumer Protections Act (Colo. Rev. Stat. §6-1-113); and claims for violations of Colorado Sunshine Laws for open meetings (Colo. Rev. Stat. §24-6-401).
Finally, pursuant to Colo. Rev. Stat. § 13-17-102, the court may award reasonable attorney fees in any civil action in which the court determines an attorney or party has brought or defended the action without “substantial justification.” A claim or defense lacks substantial justification where it is frivolous, substantially groundless, or substantially vexatious in nature.
Colorado permits claims for exemplary damages where an injury was caused by fraud, malice, or willful and wanton conduct. But Colo. Rev. Stat. § 13-21-102 provides that such a claim may not be added to a complaint until after a plaintiff is able to establish prima facie proof of a triable issue. Moreover, the amount of exemplary damages generally may not exceed the amount of actual damages awarded to the injured party.
4. Do I have to hire local Colorado counsel if I have a case in Colorado state court?
An out-of-state attorney generally must apply for pro hac vice admission to practice in Colorado state court, which does require associating with Colorado counsel. Details of this process may be found at Colo. R. Civ. Pro. 205.3. One exception, provided in Colo. R. Civ. Pro. 204.1, is that an out-of-state attorney may apply for single-client certification, which is designed to accommodate in-house counsel who work for national organizations.
5. Are there any local discovery-related rules of which I should be aware?
The Colorado Rules of Civil Procedure are patterned largely after the Federal Rules of Civil Procedure with some important exceptions:
Case Management. Colo. R. Civ. P. 16 governs case management and seeks to have the trial judge involved in case management personally and actively from an early stage of the case. Among other things, Rule 16 provides that, no later than 14 days after the case is “at issue,” lead counsel for each party must meet and confer either in person or by telephone to address, among other things, the bases of the claims and defenses, anticipated initial disclosures pursuant to Colo. R. Civ. P. 26(a)(1), and the proposed case management order. See generally Colo. R. Civ. P. 16(b)(3). Generally, a case is “at issue” when all parties have been served and all pleadings permitted by Colo. R. Civ. P. 7 have been filed or defaults or dismissals have been entered against non-appearing parties. See Colo. R. Civ. P. 16(b)(1).
No later than 42 days after the case is at issue, the parties must file a proposed Case Management Order. Among other things, the proposed order should contain an evaluation of the proportionality factors from Colo. R. Civ. P. 26(b)(1) (which track those set forth in the corresponding Federal Rule). For a complete list of items to be included in the proposed case management order see Colo. R. Civ. P. 16(b).
The Case Management Conference will be held no later than 49 days after the case is in issue.
Simplified Discovery In Civil Actions Worth Less Than $100,000. To enhance the provision of just, speedy and inexpensive determination of civil actions, Colorado Rule of Civil Procedure 16.1 provides simplified rules of civil procedure. Beginning September 1, 2018, these rules presumptively apply to all civil actions. If a party wishes to exclude its case from simplified discovery, the party must file a motion to be excluded, certifying that the value of the claims is reasonably believed to exceed $100,000 or other good cause for exclusion. Among other things, simplified discovery entails a list of required disclosures for each party. In addition, it limits depositions to six hours per side, permits parties to serve no more than five requests for the production of documents, and limits parties to one expert witness per side (unless a trial court authorizes more for good cause shown). See generally CRCP 16.1.
Discovery Pursuant To Colo. R. Civ. P. 26. Colorado Rules of Civil Procedure 26 & 121 (section 1-12) provide the parameters of discovery for cases that have been excluded from simplified discovery. Colo. R. Civ. P. 26(b)(1) tracks the language from Fed. R. Civ. P. 26(b)(1) permitting discovery only if it is “relevant to the claim or defense of any party and proportional to the needs of the case.” Beyond this, however, there are many differences. For example:
- Initial disclosures pursuant to Colo. R. Civ. P. 26(a)(1) are due within 28 days after the case is at issue;
- In Colorado, the timing of the expert disclosures is generally staggered, with plaintiffs’ disclosures due 18 weeks prior to trial, and defendants’ 14 weeks prior to trial. See Colo. R. Civ. P. 26(a)(2)(C). In addition, parties are presumptively limited to six hours for depositions of retained experts. Colo. R. Civ. P. 26(b)(4)(A).
- In Colorado, a motion for protective order pursuant to Colo. R. Civ. P. 26(c) will stay any discovery at which the motion is directed. Colo. R. Civ. P. 121 §1-12.
- Each party is presumptively limited to: one deposition of each adverse party and two other persons, exclusive of persons expected to give expert testimony; thirty written interrogatories, each of which consist of a single question; twenty requests for production, each consisting of a single request; and twenty requests for admission, again, each consisting of a single request (Colo. R. Civ. P. 26(b)(2)(A-E)). To alter these limitations, counsel must seek a court order for good cause shown.
6. Do Colorado judges regularly hear oral arguments or otherwise require the parties to appear in court?
Colorado Rule of Civil Procedure 121, section 1-15(4) provides that the court has discretion to order briefing or set a hearing on a motion. If a court desires oral argument or an evidentiary hearing, all parties will be notified by the court. After notification, it is the responsibility of the moving party to have the motion set for argument or hearing.
7. How many pages do I have for this brief?
Colorado Rule of Civil Procedure 121, section 1-15 provides that, unless the court orders otherwise, motions and responsive briefs filed pursuant to Colo. R. Civ. P. 12(b)(1) and 56 are limited to 25 pages, and reply briefs to 15 pages. Unless the court orders otherwise, all other motions and responsive briefs are limited to 15 pages and reply briefs to 10 pages.
8. How long will it to take to get my case to trial?
While there is no data on average time to trial in Colorado, presently, Colorado’s judicial system is feeling the effects of increase in population as well as a significant rise in felony case filings. This spring, legislation to add 15 judges to districts across the state passed, which will bring staffing levels up to 82 percent.
The Second Judicial District (Denver), in particular, is feeling the strain of increased filings. Since 2012, felony filings have increased 80 percent. As a result, some civil judges are agreeing to help hear the overload of criminal cases. The increase in filings also presents physical constraints: courtrooms in the Second Judicial District are at capacity, and criminal trials are stacked “three and four deep” on the assumption that not all cases will go to trial.
In 2018, Denver District Court docketed 6,685 felony criminal cases, 4,658 domestic relations cases, and 5,201 civil lawsuits. In 2018, the judges presided over 200 jury trials and 37 court trials.
9. What is the local practice concerning mediation?
The Colorado Dispute Resolution Act provides that any court may, in its discretion, refer any case for mediation services or dispute resolution programs (except for civil cases where injunctive or equitable relief is the only remedy sought). In cases referred for mediation services or dispute resolution programs, the parties may select either a mediation organization or work with the Colorado Office of Dispute Resolution. If the parties and mediator inform the court that they are engaged in a good faith mediation, any pending hearing in the action shall be continued to a date certain. See Colo. Rev. Stat. § 13-22-301 et seq.
10. What time do I need to file documents that are due to the Court on a given day?
Many Colorado district courts (including the Second District) and county courts (including Denver county) require parties represented by attorneys to submit pleadings and documents via e-filing. See, e.g., Order Regarding Mandatory Electronic Filing For District Court Civil Cases (2nd Judicial District). A document transmitted to the E-System Provider by 11:59 p.m. (MT) is deemed to have been filed and served on that date. Colo. R. Civ. P. 121 §1-26.