Reimagining the Civil Process

Corina Gerety*

“One might not think of civil procedure as a likely province for dreamers.”[1]  These are the words of Professor Stephen Subrin as he remarked on the visionary enterprise of creating a litigation process that can truly provide substantive justice.  Professor Glenn Koppel expressed a similar sentiment when he stated “the time for stirring procedural visions--for imagining a new procedural paradigm that meets today’s challenges to the American civil justice system--is over only if we think it is.”[2]  This note advocates for a more innovative and expansive approach to rulemaking in state courts, and briefly discusses one such effort in Colorado. 

There is no shortage of practical opinion that civil process in the United States is captive to unnecessary cost and delay.[3]  However, procedural academics urge that any effort aimed at improving civil procedure must be based on a comprehensive theory of adjudication.[4]  The idea is that without a solid theoretical basis, rulemaking can fall victim to narrow self-interest, political struggle, and unsatisfactory compromise.  Theory guides choices between competing options, while creating a whole that is logical, legitimate, and fair. 

Adjudicative theories for reform must be built around the principles for which the American system is venerated.  These are foundational principles, holding a value independent of any particular substantive law.  The image of American civil justice is one of open access to the courts, with disputes decided publicly by a neutral body after the fair presentation of relevant evidence.  It is, in essence, a trial system.  This system not only benefits the individual litigants, it also serves the greater public good.  When the law is publicly and consistently applied, citizens can assess the legality of their own actions with more certainty.[5]  When jurors are called to service, citizens assume an active role that promotes respect for the rule of law.  Despite the foundational nature of these principles, the reality of incredibly low civil trial rates in courts across the country is well-documented.[6]          

Instead of tinkering around the edges of the current rules regime, perhaps it is time to re-imagine a civil pretrial process that will provide the most efficient and effective route to trial, if that is the litigants’ desired method of dispute resolution in a particular case.  Such a reform effort will require reasoned deliberation guided by theory, a willingness to experiment, and a commitment to measuring the results.[7]  More than the federal system, states have the flexibility for this type of innovation and experimentation in rulemaking, and are already moving away from the federal model.[8] 

Colorado’s enactment of Colorado Rule of Civil Procedure Rule 16.1 (“Rule 16.1”) more closely resembles the comprehensive theory model of reform than have many other efforts to amend rules, both state and federal.  The endeavor began with the Colorado Supreme Court’s appointment of a Civil Justice Committee charged with thinking “creatively about possible solutions” to the lack of effective access to civil courts.[9]  The Court was mainly concerned with the slow, expensive, and often contentious nature of civil discovery, and the related decline in public confidence in the judicial system.[10]  With this charge, the Committee developed a distinct simplified pretrial procedure for certain civil actions in Colorado District Court.[11] 

The theory behind Rule 16.1 is not novel.  Rather, it was inspired by criminal procedure and is based on the idea that even the most serious matters can be justly resolved by simply filing the pleadings, disclosing the evidence, and proceeding to trial, rather than by conducting extensive discovery.[12]  As one District Court judge recently stated, “Murder trials are conducted on disclosure so therefore it does not make any sense that a civil matter cannot be handled in the same way.”[13]  There is much appeal to using the criminal system as a trial-centric model that comports with the foundational principles of American justice.  Although still quite low, the estimated trial rate for criminal cases in Colorado District Court is over four times higher than that for civil cases.[14] The pretrial process is streamlined, and yet fairness is of utmost concern.

Indeed, in a recent survey of practitioners on Rule 16.1, a majority of both attorneys and judges associated the simplified procedure with time and cost benefits, while 97% indicated that the Rule 16.1 process is at least as fair as the standard civil pretrial procedure.[15]  Notably, 43% of responding attorneys reported that the process is actually fairer, and this assessment was not associated with party represented.[16]  In addition, responding attorneys with Rule 16.1 experience were found to be statistically more likely to actively encourage its use than those who had not actually used the rule.[17]  Although questions of time and expense are best measured through objective docket and case studies, “if the issue is itself one of perception – does the system seem legitimate or fair – then it is perhaps considerably more justifiable in terms of gaining empirical knowledge to ask such a question” of legal professionals.[18]

Rule 16.1 is not mandatory, even for those cases to which it applies by default.[19]  According to the survey results, attorneys commonly opt out of the procedure due to the perception that disclosures might not be adequate for a just resolution.[20]  In the criminal system, enforcement of disclosure obligations both regulates behavior in a particular case and provides a deterrent against transgressions in future cases.[21]  Strong enforcement of Rule 16.1, through the exclusion of evidence not properly disclosed,[22] will help ensure that the rule functions as intended.

Colorado’s Rule 16.1 is one example of an attempt to redesign the civil litigation system to better serve its users, while staying true to the image of American justice.  However, criminal procedure is not the only model around which an improved civil procedure might be built.  State courts in Colorado and elsewhere ought to be laboratories of innovation, with rules committees working creatively and experimenting boldly, guided by adjudicative theory to keep the politics at bay.  If such efforts are accompanied by sound empirical measurement, we will move in the direction of a civil system capable of providing justice for all.

 


* Research Analyst, Institute for the Advancement of the American Legal System at the University of Denver.  B.A., University of Puget Sound; J.D., University of Colorado. 

[1] Stephen N. Subrin, Reflections on the Twin Dreams of Simplified Procedure and Useful Empiricism, 35 W. St. U.  L. Rev. 173, 173 (2007).

[2] Glenn S. Koppel, Reflections on the “Chimera” of a Uniform Code of State Civil Procedure: The Virtue of Vision in Procedural Reform, 58 DePaul L. Rev. 971, 978 (2009). 

[3] See Corina Gerety, Institute for the Advancement of the American Legal System, Excess and Access: Consensus on the American Civil Justice Landscape (2011), available at www.du.edu/legalinstitute. 

[4] See Koppel, supra note 2, at 985-999 (discussing the views of Prof. Jay Tidmarsh, Lon L. Fuller, Prof. Robert G. Bone, Prof. Stephen N. Subrin, Prof. Lawrence B. Solum, and Prof. Jonathan T. Molot).

[5] Patrick E. Higginbotham, The Present Plight of the United States District Courts, 60 Duke L.J. 745, 756 (2010); Judith Resnik, Whither and Whether Adjudication?, 86 B.U. L. Rev. 1101, 1103 (2006).

[6] Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459 (2004); Higginbotham, supra note 5, at 748-49, 756 (lamenting the phenomenon of “dark courtrooms”). 

[7] See Koppel, supra note 2, at 993-94 (proposing that empiricism and theory “interact with each other in an incremental, trial-and-error process”); Subrin, supra note 1, at 192 (“No study is perfect . . . . but most studies can teach us something, frequently something we didn’t know to ask at the onset . . . . [L]earning more about how these rules work in particular situations should help us make more informed judgments about procedural choices that bear on justice, however reasonably defined.”).  

[8] Koppel, supra note 2, at 975-76; see also Seymour Moskowitz, What Federal Rulemakers Can Learn from State Procedural Innovations 1, 5-10 (May 10, 2010) (paper presented at Duke Law Journal 2010 Litigation Review Conference), available at http://civilconference.uscourts.gov/LotusQuickr/dcc/Main.nsf/h_Library/F1C6F5AA20A0526E8525773B0047897C/?OpenDocument.

[9] Richard P. Holme, Back to the Future--New Rule 16.1: Simplified Procedure for Civil Cases Up to $100,000, 33 Colo. Law. 11, 12 (May 2004). 

[10] Id. 

[11] Rule 16.1 applies generally to civil actions in which the maximum monetary judgment sought against any party is $100,000 or less, as well as actions for equitable relief, although a number of case types are exempted.  Colo. R. Civ. P. 16.1(a)(2), (b)(1), (b)(2), (c). 

[12] Holme, supra note 9, at 12.

[13] Corina Gerety, Institute for the Advancement of the American Legal System, Surveys of the Colorado Bench & Bar On Colorado’s Simplified Pretrial Procedure for Civil Actions 37 (2010), available at www.du.edu/legalinstitute. 

[14] For fiscal year 2010, estimated trial rates were 0.6% for civil cases and 2.8% for criminal cases.  Colorado Judicial Branch, Annual Statistical Report Fiscal Year 2010, Tables 14 and 15a, available at http://www.courts.state.co.us/Administration/Custom.cfm?Unit=annrep&Page_ID=328.  The civil category does not include domestic relations, juvenile, mental health, or probate actions. 

[15] Gerety, supra note 13, at 22-25.

[16] Id. at 25.

[17] Id. at 22.

[18] Subrin, supra note 1, at 186. 

[19] Parties may opt out of the simplified procedure without explanation or review; however, parties can also opt into the procedure in cases to which the rule does not apply by default.  Colo. R. Civ. P. 16.1(d), (e). 

[20] Gerety, supra note 13, at 29. 

[21] See Jennifer E. Laurin, Rights Translation and Remedial Disequilibration in Constitutional Criminal Procedure, 110 Columbia L. Rev. 1002, 1002-04 (2010) (referencing Brady v. Maryland, 373 U.S. 83 (1963)).

[22] Colo. R. Civ. P. 16.1(k)(6), (7).