The October E-SJI News includes an article on the report by the Institute for the Advancement of the American Legal System (IAALS) on the Colorado Civil Access Pilot.
The core idea of the project which is focused on business cases, is as follows:
The basic idea is that through new pleading and disclosure procedures, all known information comes to light at the earliest possible point. With the disputed facts and issues thus narrowed and framed, the parties and the court work together to determine the extent of additional discovery necessary and to shape a proportionate discovery process focused on enabling a fair resolution. To reduce expert witness costs, each side is permitted one expert per issue or specialty, and all aspects of the expert’s testimony are contained in the disclosed report and files. A single judge provides close case management on an expedited time frame, leading up to a firm trial date.
The evaluation, as reported by SJI, shows that:
The CAPP rules reduce the time to resolution over both of Colorado’s existing procedures (standard and simplified). The rules increase the probability of an earlier resolution over the standard procedure.
Four out of five attorneys in CAPP cases indicated that the time it took to reach resolution in a case was proportionate, and three out of four agreed that the costs to get there were also proportionate.
CAPP cases benefit from management by a single judge, who handles the case much earlier and twice as often.
The CAPP process is not tilted in favor of either plaintiffs or defendants.
The full report is here. It includes the following:
The judge survey requested an opinion on the overall impact of the CAPP rules during each quarter. Considering all of the surveys administered over the course of the project, a slight majority (51%) characterized the impact as positive, another 28% characterized it as neutral, and 21% characterized it as negative.
It also includes the following tactfully put comment with respect to attorney feedback:
A variety of opinions on CAPP were expressed through the attorney survey, though the suggestion to eliminate the project was more prevalent among attorneys who provided feedback in the comments section than was the suggestion to maintain or expand it. In this respect, the qualitative comments are not exactly consistent with the quantitative data, which show compelling benefits to the project. The objective numbers (the docket data and the case- or quarter-specific survey data) provide insight into the project itself, while the subjective comments provide insight into attitudes in relation to the project. Both perspectives are important, which is why a multiple methods approach to research is valuable.
I would comment that These results highlight the value of experimentation and research in this field. The core idea, as with so many other innovations, seems to be to increase the role of the judge in managing the litigation. As such, it is fully consistent with the day to day and often unrecorded changes happening nationally, and perhaps worldwide, with self-represented cases, which simply cannot move forward without such involvement.
This consistency should make the process of overall reform much simpler, if only because it may be possible to create flexible rules that can apply to both attorney and non-attorney cases, something that I would far prefer if at all possible.
I do suspect however, that including non-lawyer, and lawyer on one side only cases will require even more flexibility, a lager role for the judge, particular in areas in which judicial supervision has been largely absent, such as discovery, and shifting more and more of management of the flow of information directly to the court. Thus court-driven, if limited, mandatory discovery may be critical. So may be far greater court involvement in the compliance and enforcement phase, which is still essentially unreformed since the 19th century.
It would be fascinating to have more information on the impact on the self-represented cases.
P.S. IAALS has a nice map chart of their involvement in these experiments nationally. Federal court discovery and e-discovery seem to be the main areas of movement.
Richard Zorza's Access to Justice Blog 