Understanding the Colorado Rules of Civil Procedure

Overview of Civil Procedure in Colorado

The Preamble to the CRCP lays out their applicability: [These] rules govern the procedure in all actions brought in the courts of record and divisions thereof, of the State of Colorado, except as provided in Rule 81. Such rules are designed to effectuate the just, speedy and inexpensive determination of every action. This Preamble sets the stage for applying the Colorado Rules of Civil Procedure (the "CRCP") to all civil actions in the state. The scope of the CRCP is quite broad, but some rules do not apply to all matters. For example, Part 4 of the CRCP covers injunctions, and Part 5 concerns appointing a receiver . Part 1 of the CRCP governs General Provisions: Venue, the Legal Holiday Rule, the Colorado Open Records Act; Parts 2-6 cover Jury Trials, Pleadings, Motions, and Counterclaims, Interventions, and Trial. In addition, Part 7 addresses class actions and complex civil cases, Part 8 covers parties, and Part 9 covers Supplemental Proceedings. Parts 10-17 address discovery, experts, depositions, witnesses, evidence, and experts. Parts 18-20 address every other civil action imaginable: proceedings on appeal, post-conviction review, statutory awards, and settlements. Finally, Part 21 governs when the rules apply to non-parties, and Part 22 covers attorney discipline.

Major Elements of Colorado Civil Procedure

The key components of the Rules of Civil Procedure are: pleadings, motions, discovery, trials, and judgments. Each of the rules governing these procedures is paired with one of the rules of evidence, and familiarity with how the former and the latter work together can only help a civil litigator.
Pleadings.
The Rules start with the pleading requirements of either a complaint or answer. These pleadings must contain a plain statement of the claim or defense and the relief sought. Specificity is not required at the pleading stage, and the Federal Civil Rules of Procedure have a very similar procedural structure to the Colorado Rules. The trial court is familiar with assessing such pleadings in determining if there is a justiciable controversy that warrants the exercise of jurisdiction. One special pleading that is unique to Colorado is the demand for a jury trial, which required a special, formal pleading.
Motions.
Motions are governed by Rule 121 and a trial court can act on a motion at any time before adjudication on the merits. Some motions are critical to the conduct of a civil case, like summary judgment, and others address ancillary matters, such as a protective order. One frequently used motion that is unique to the Colorado Rules is the motion to reconsider.
Discovery.
Discovery has its own chapter within the Colorado Rules, unlike in the Federal Rules of Evidence. Colorado also has its own specific rules for various types of discovery – oral depositions, written depositions, depositions before trial, interrogatories, production of evidence, requests for admission, subpoenas, and even protection from case expenses. An often overlooked benefit to the Colorado Rules is the expedited benefits to persons not parties to the suit for responding to discovery requests – if there is a protective order, a person need only respond to a subpoena in a manner that complies with the newly enacted protection orders.
Trial.
At trust and estates trial, the major component of the trial process is the fact finding. Like the Federal Rules, all such trial activity is governed by the Rules of Evidence, which are paramount to the manner in which a civil case is tried. This chapter of the Rules gives the trial court lots of discretion in assessing claims and making rulings. Additionally, Colorado courts operate under the idea of "probable facts" rather than the "preponderance of the evidence". The trial court makes findings, which can be amended to conform to the evidence and revised even after the judgment has entered.
Judgment.
After the disposition of the final issues, the trial court will make findings. While these findings are not subject to the normal review standards, it is important to have our findings in a form that lends itself to the interpretation that we want the appellate court to follow. Colorado courts will apply the same standards to their decisions as they do to the federal decisions on the same subject matter, and the state courts are open to the application of the law in the other states, which can benefit us when drafting.

Starting a Civil Action in Colorado

A civil action in Colorado is commenced by filing a complaint with the clerk of the district court (or the appropriate county court) and paying an associated filing fee, or by filing in forma pauperis (a signed affidavit stating that the individual lacks sufficient funds to pay the filing fee). Filing can be done by mail or in person at the appropriate court. In the Colorado District Courts, the filing fee as of the posting of this article is $247-$301, depending on the court where the action is commenced. The filing fee for Colorado County Courts is generally less than $100. If the party is represented by counsel, an original and copy of all motions, notices, pleadings, and other papers must be served in paper form unless otherwise permitted under the Colorado Rules of Civil Procedure (Rule 121, Section 1.11). Parties that are not represented by counsel can serve papers in either paper or electronic form, although physical delivery is encouraged as many judges may require physical delivery of documents in order to handle them at a hearing. While there is no statewide electronic filing court system in Colorado, certain judicial districts have adopted an e-filing program (eFiling) that allows for automatic e-service of documents in those districts after an initial service, and eFiling permits parties to include supporting materials (i.e., exhibits) with the e-filed documents. Parties do not need to be eFiling users in order to submit documents electronically. As with most states, Colorado requires plaintiff’s counsel to file a "Civil Cover Sheet" when initiating a case. The Civil Cover Sheet requests information on the parties, the date the complaint was filed, the assigned judge, and the nature of the suit. The Civil Cover Sheet is simply a matter of recordkeeping for the court. It does not affect the jurisdiction of the court, the venue of the action, or its legal effect. In most cases, plaintiffs need only file a single Civil Cover Sheet, but separate Civil Cover Sheets are required for multiple defendants when the case is not in the same judicial district or division. The District Court Civil Cover Sheet (Form JDF 601) and the County Court Civil Cover Sheet (Form JDF 601CC) can each be found here. In addition, the District Court Civil Cover Sheet also contains an instruction sheet (Form JDF 601INST), which describes the purpose of these forms and provides additional filing instructions for attorneys filing into those courts. Summonses are also an important part of the Colorado civil process. For plaintiff(s) to commence a civil action and to notify the defendant(s) of the pending action, they must issue and serve a summons together with a complaint. In general, Colorado Rules determine when summonses must be issued. Under Colorado Rule of Civil Procedure 4(g), a summons must be issued upon the filing of a complaint; however, no summons needs to be issued to a party who is already a party to an existing action. If a complaint has already been filed, for example, a Supplemental Complaint also requires a new summons to be issued and served with it. Service of the summons must follow the requirements of Colorado Rule of Civil Procedure 4(h), but generally, personal service of the summons is required upon the defendant and upon the defendant’s attorney if they are represented by counsel. In addition, a separate document captioned with the word "SUMMONS" must be provided to accompany the complaint.

Discovery Under the Colorado Rules of Civil Procedure

The discovery process in a Colorado civil lawsuit is governed by the Colorado Rules of Civil Procedure. Rule 26 of the Colorado Rules of Civil Procedure governs discovery in Colorado Courts. Pursuant to Rule 26 (b), the disclosure and discovery provisions in civil lawsuits are to be liberally applied with the purpose toward providing each party with the information necessary to the prosecution or defense of a claim and subject only to limitations because of privacy or privilege.
There are several discovery tools that are employed during litigation in order for a party to obtain evidence and information from opposing parties to the case. Pursuant to Rule 26 (c), and at the direction of the Court, a party may discover evidence which is not privileged regarding any matter of which there is a reasonable probability it will lead to discovery of admissible evidence.
A party may demand the production of documents from any other party pursuant to Rule 34 of the Colorado Rules of Civil Procedure. Pursuant to Rule 34, a party may serve a written demand on another party to: (1) produce and permit the party making the demand or someone acting on that party’s behalf to inspect . . . the documents, electronically stored information, tangible things, and entry onto land as designated in the demand, . . . ." Pursuant to C.R.C.P. Rule 34, the demand must be appropriately limited, specific, and no broader than what is required by the circumstances of the case.
A party may also take a deposition of (1) a party, (2) the organisation of which the party is a member or employee, or (3) an individual, who is either a nonparty or named in the action.
Under C.R.C.P. Rule 30, unless previous leave of Court is obtained, the deposition of an individual may be taken without leave for 3 or less individuals on each side if it is taken within the time that a notice of deposition is required to be given under Rule 30(b)(1). If the deposition of a party is to be taken, notice should be given at least 14 days before the deposition is to be taken. Under C.R.C.P. Rule 30(d), the examination and cross-examination of witnesses at depositions shall be conducted as permitted at hearings under the Colorado Rules of Evidence. The testimony shall be recorded stenographically. Those in attendance shall be sworn by the court reporter.
A written transcript of the deposition shall be furnished to the deponent upon request by that person. Unless upon motion by a party and order of the court otherwise specified, the deposition shall be recorded by audio-visual means in a medium approved by the state court administrator as provided in Rule 30(b)(4).
As authorized by the Court, upon motion for good cause shown, a party may even obtain documents which have been produced during the course of the litigation or within a reasonable time prior to the commencement thereof. Requests for documents or electronically stored information may also be served simultaneously with any paper.
Pursuant to C.R.C.P. Rule 33, a party may serve upon an opposing party, without leave of court or written stipulation, interrogatories (written questions) to be answered by the party upon whom the interrogatories have been served. This may also include subparts as long as they are logically subsumed within a single set.
A party may also notice the deposition of a corporation or other business entity as authorized under C.R.C.P. Rule 30, 31, and 45.

Pretrial Procedures and Pretrial Conference

When it comes to speeding up the litigation process, pretrial procedures are a critical tool in any family law attorney’s toolbox. But while they’re certainly powerful, pretrial procedures are also very easy to overlook.
That’s where the Colorado Rules of Civil Procedure come in. Pretrial procedures are at the very heart of the way the Colorado Rules of Civil Procedure (or CRCP, as they’re often called) intend to simplify the litigation process, particularly in a contested divorce. To this end, your CRCP Rule 16 requires that: In other words, if you’re a Colorado family law attorney preparing for litigation, you can’t just sit down and read the CRCP like a dry textbook. You have to EDJEMS-EDJEMS being an acronym for the process laid out above. The purpose of every pretrial conference is to make sure we’re all on the same page before heading to trial. To this end, our Colorado Courts will often appoint a magistrate "to review the pleadings and prehear all motions." The idea is that everyone shows up, explains what needs to be heard , and narrows the issues down to what is actually going to go in front of the judge. The CRCP even gives your magistrate all the tools necessary to work toward a speedy resolution, including: You’d be amazed how many clients I’ve seen get the wrong impression about pretrial procedures. They think they can file a motion and have it heard the very next day if they show up at the courthouse an hour early! These clients need to be educated about the proper use of pretrial procedures, and the importance of taking full advantage of them. Of course, there’s always the chance that your magistrate will disagree with you, and decide that things need to be pushed ahead to trial (or that you need to file more motions, Mediation, and so forth). Most of the time, though, pretrial conferences lead to a successful and expedient settlement of divorce litigation. Even if there’s a complex web of legal hoops to jump through, little things like these pretrial procedures can go a long way toward bringing you closer to a successful resolution.

Civil Trials and Judgements in the State of Colorado

In Colorado, actions such as those brought by the plaintiff in the above example are governed by the Colorado Rules of Civil Procedure, which, like the Federal Rules, govern both state and federal actions. The Rules require that a plaintiff present evidence in support of her claims and damages during her at trial, and it is vital that these trial requirements are carefully calculated by an experienced civil attorney before a complaint is even filed. In fact, some complaints require more specificity than others and failure to comply with the relevant rules can result in outright dismissal.
Of course, the purpose of the Rules is to ensure that all parties receive a fair opportunity to present their cases to a judge or jury, and thus the trial itself is likely the most acrimonious portion of the litigation process. Trials are not cheap because trial time is expensive, discovery is not completed until the trial judge sets a trial date, and thus the costs incurred through the discovery process leading up to trial are not incurred until long after the litigation has been commenced. This economic factor should always repugnant to attorneys, who should understand from the outset that the potential for a favorable return on investment is the primary reason why any contingency case should be commenced. Moreover, the court literally controls the discovery process between the parties, setting all deadlines for disclosure of documents, responding to written discovery, taking witness depositions, and issues relating to court orders governing similar procedural issues. Because of their experience in navigating these waters, most attorneys have an innate sense of the types of issues a court will find troublesome and what types of triggers are likely to cause a court to retract a promise, which is why prospective clients are well advised not to apply pressure to their litigation attorneys or attempt to play the role of "attorney" themselves. As is often said: "A lawyer who represents himself has a fool for a client" and that adage applies equally to pro se (people who represent themselves) litigants.
The same Rules of Civil Procedure govern the entry of judgment in all cases in Colorado. Courts follow a similar pattern in entering judgments in civil and criminal cases, as both types of cases in Colorado are governed by the Colorado Rules of Criminal Procedure. There are certainly times when a court enters judgment against a defendant by way of pretrial motion, such as a Motion for Summary Judgment, and the court may resolve the issue of liability at this early stage of litigation or may even resolve all pending issues in the case if the defendant does not oppose the entry of judgment. However, where issues remain unresolved requires trial, and the party obtaining a judgment must then obtain a "finality" judgment order from the court before the judgment can be collected by garnishment, execution or otherwise. Such a judgment is known as a "certified judgment" and essentially is a stamp by the Clerk of the Court which signifies to third parties the judgment is final and appealable. An appeal may sometimes stay enforcement of a judgment, but the obligation to pay the judgment runs from the date that the applicable Rule of the Court allows for enforcement of a certified judgment, typically running from the date of judgment or some other triggering event.

Amending and Modifying the Rules of Civil Procedure

Over the years, the Colorado Rules of Civil Procedure continue to change. This section of the article will discuss some of the major changes that have occurred over the past years, and how they impact civil practitioners.
On February 24, 2012 the Colorado Supreme Court in its "Annual Report Pursuant to C.R.C.P. 86(g)(2) announced that the 2012-2013 Colorado Rules of Civil Procedure and the 2012 Colorado Rules of Extradition had been updated and adopted. A free copy of the rule updates was available on the website.
The 2012 amendments clarified or rewritten right to jury trial language. The revisions also highlight the ability of the trial court to stay the proceedings while a pending motion to disqualify is being ruled upon. An extensive list of other minor amendments were undertaken. These include but are not limited to legal pleadings, depositions upon written questions, discovery methods with basic limiting language, payday loans, motions generally, motions for summary judgment or partial summary judgment, ex parte orders, request for admissions, interrogatories, production of documents and tangible things written response direct objections witness testimony at trial etc.
The 2014-2015 updates to the rules originally adopted on September 9, 1960, by the Colorado Supreme Court, came about to increase the efficiency in which the judicial system currently runs. The stated reason for the changes was to aid in how Information Technology has impacted the process and recognize the changes in technology of today. One major change that impacts civil practitioners in the state was a change in Rule 121, the case caption. Under the changes, the caption is no longer required to state the address and telephone number of all the parties’ attorneys, nor the addresses and telephone numbers of all pro se parties.
Other smaller changes include revising the requirement for attorneys to electronically sign documents; specific timeframe of the filing of a post-judgment motion; procedures regarding entry of a judgment in a case; service by posting nondomestic and foreign judgements, as well as who may serve process; the manner of service issues, e-filing appendix, attorney signature requirements, deposits into registry, motions to intervene, service by publication, etc.
Civil practitioners should review the entire set of rules changes as they certainly can impact a practitioner’s day-to-day practice.

Helpful Advice for Practicing Lawyers

Attorneys appearing in Colorado state courts should familiarize themselves with the nuances of that district’s rules and practices. Colorado Rule of Civil Procedure ("C.R.C.P.") 121 provides local rules for litigation in each judicial district that supplement the C.R.C.P. The rules vary on a district-by-district basis, on the following topics: Many practitioners overlook local practices. For example, consistent with the general practice of many state courts across the U.S., motions in Colorado generally proceed without oral argument unless otherwise specified. C.R.C.P. 121(b)(c)(2)(A)(iii). Practitioners frequently miss the deadline to file a reply brief because many Colorado districts’ local rules permit a reply brief to be filed no later than three business days prior to the hearing on a motion. (In comparison, Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 6(d) allows a seven-day reply brief deadline before hearing.) The replies are often due just days (but not weekends) before the hearing, while replies are typically due 7-10 days before the hearing in federal court. There is no "banker’s box" in Colorado, meaning that attorneys must retain physical copies of their own filings, regardless of whether the court has electronically filed them. As a common practice, the courts do not provide attorney service copies of filings. The Colorado state courts allow for extensive brief extensions of time to answer a complaint, but relatively brief extensions to respond to written discovery. Many districts require a case management conference within six months of the filing of a case , and some (like Denver) require case management conferences at the very outset of litigation, prior to the filing of any pleading or motion. Although the Colorado courts require attorneys to confer prior to filing most motions, they do not require them to state the grounds for relief sought in the motion prior to its filing. For example, a party must "make reasonable, good faith efforts" to resolve a dispute prior to seeking a preliminary injunction without the necessity to provide the opposing party with a good faith estimate of the legal grounds for the preliminary injunction. The Colorado civil procedure rules require disclosure of facts supporting claims (including expert opinions) and defenses, which is not always the case under applicable federal rules. For example, expert disclosures must contain "all the information customarily provided in the expert’s field of expertise," and experts may not testify as to matters not disclosed. C.R.C.P. 26. The "pleadings are to be so construed as to do substantial justice to all parties," and re-pleading is only permitted in specific situations, such as when the previous pleading was rejected because the party was not licensed to practice law in Colorado. Colo. R. Civ. P. 8(a). Additional resources are widely available online and on the radio. The Ninth Judicial District in Colorado (the location of the Inn of Court’s Aspen chapter) posts its practice standards and rules of court on its website. In addition, the Colorado Bar Association provides free monthly podcasts on topics related to practice in the Colorado courts.