New Rules for Business and Real Estate Litigation in Denver Metro Area

Otten Johnson Alert January 2012

On January 1, 2012, the Colorado Civil Access Pilot Project ("CAPP") took effect, imposing new procedural rules for certain types of business disputes in Denver, Jefferson, Gilpin, Adams and Arapahoe Counties. CAPP aims to decrease the costs of litigation and to help cases move through the legal system at a faster pace. It is still too early to tell whether CAPP will accomplish its stated goals, but it will undoubtedly change the process for resolving commercial real estate and other business disputes.

With certain exceptions, CAPP applies to commercial business disputes, including those involving commercial real estate. Therefore, it is important for all businesses in the Denver metro area to understand when, where and how CAPP applies. The changes imposed by CAPP are mandatory and relate to numerous aspects of the litigation process, including extensions of time, pleading and disclosure requirements, the discovery process, the use of expert testimony, and the role of judges.

The following is a brief description of some of CAPP's most important changes:

Pleadings.  CAPP requires plaintiffs to include more substantive details in their complaints and defendants to deny such allegations with specificity. The goal is to reduce the number of contested issues at the outset of the litigation process so that parties can streamline their cases and reduce discovery expenses.

Disclosures.  Under CAPP the deadline for a defendant to answer a complaint begins to run from the date of service of plaintiff's initial disclosures. This dramatically changes the standard rules of civil procedure which require the parties to simultaneously exchange disclosures thirty days after all pleadings have been served. This means that a plaintiff will need to do more work at the outset of a case to organize relevant documents and to identify individuals with knowledge of relevant facts. CAPP also makes changes to the contents of the initial disclosures themselves by requiring parties to make disclosure of information, whether it is supportive or harmful.

Active Case Management.  Currently, in some judicial districts, it is not uncommon for judges to switch cases. However, under CAPP, the judge initially assigned to a case will remain assigned until final resolution. CAPP also requires judges to undertake a more active role in the case by holding an initial case management conference and by continuing to monitor the case as it moves forward. Judges will also ensure that discovery is proportionate to the amounts at stake and they are tasked with strictly enforcing the new, early disclosure requirements.

Experts.  CAPP limits each party to one expert per issue, imposes new requirements for expert reports, prohibits expert depositions, and limits the expert's testimony at trial to what is in the expert's report. In this way, CAPP hopes to curb the litigation costs associated with experts. CAPP is silent on the question of what constitutes an "issue," and this may be an area of dispute in applying the new rules.

Limitations on Extensions of Time.  Under the standard rules of civil procedure, requests for extensions of time are usually granted as a matter of course. Under CAPP, however, such requests will be automatically denied absent extraordinary circumstances. Also, a motion to dismiss the complaint, filed by a defendant, will no longer stay that defendant's deadline for filing an answer.

Otten Johnson's attorneys have substantial experience in helping clients plan ahead for disputes that could arise from their business deals. They can help clients determine whether a particular dispute falls within the parameters of the new rules, and, if so, provide proactive and timely representation as required by the rules. For more information on this Client Alert, contact any of the attorneys in the Litigation practice group.