General Overview of Procedure and Case Timelines for Civil Lawsuits in Colorado State Courts
To non-attorneys, the process of litigating a civil action can often be daunting and confusing primarily due to the procedural and legal intricacies inherent in court systems. In particular, while the Colorado Rules of Civil Procedure (“C.R.C.P.”) were, at least in theory, designed to simplify and unify court procedures in Colorado state courts, actually implementing and understanding them can quickly become complex.
Accordingly, this article is designed to provide a high-level overview of how the court process works in Colorado state civil courts. Importantly, this article is based on general civil procedure for lawsuits in Colorado district courts and, while many of these principles are applicable to civil lawsuit in general, the specific details discussed herein may not apply to every type of civil lawsuit in Colorado courts, such as county court and domestic relations cases which have their own procedure and case timelines.
Procedural and Case Timelines for the Beginning Stages of a Lawsuit in Colorado State Courts
The beginning phase of a lawsuit generally focuses on determining what claims will actually be litigated in the case. Typically, this occurs through motions practice where defending parties contest the sufficiency of claims alleged in the lawsuit. Contesting improperly or deficiently plead claims at the beginning stages of a case can have the beneficial effect of having those claims dismissed and narrowing the issues in the case, or potentially having the entire lawsuit dismissed. The beginning stages of a lawsuit in Colorado state courts generally proceed as follows:
– Initiation: The beginning of a lawsuit generally occurs with the filing of a complaint in the appropriate court alleging claims against one or multiple parties. Important considerations in drafting a complaint include determining and ensuring that the claims in the complaint are properly plead; ensuring that the appropriate parties are named in the complaint, particularly where a business entity is a defendant since businesses often have similar names; and ensuring that the county where the complaint is filed is the proper venue for litigating the lawsuit. Once the lawsuit is filed, personal jurisdiction must be obtained over the defendants by having them served. In general, Colorado courts require that service on the defendants must occur within 63 days of filing of the lawsuit. If service is not obtained within this time frame the court may dismiss the action without prejudice based on failure to prosecute the case. Once service on a defendant occurs, the timeline begins to run for them to file a response to the complaint. See C.R.C.P. 3; C.R.C.P. 4; C.R.C.P. 12(a); C.R.C.P. 98.
– Response: Once a defendant has been served with a lawsuit, the defendant has 21 days to respond. In general, a defendant has two options in responding to a complaint: file a motion to dismiss or file an answer responding to the allegations in the complaint. Notably, a motion to dismiss does not respond to the allegations in the complaint but, instead, asserts that the complaint is defective in some manner and the complaint itself or claims alleged in the complaint should be dismissed. Common grounds for filing a motion to dismiss include asserting that the plaintiff has failed to properly plead a claim for relief; asserting that the court does not have jurisdiction to hear the claims; asserting that the claims are barred for legal reasons such as failure to file within the applicable statute of limitations; and failure to properly serve the defendant. If a motion to dismiss is filed, then the defendant does not have to answer the complaint until the motion is ruled on. Notably, however, since a motion to dismiss does not answer the allegations in the complaint, a plaintiff is free to amend the complaint once as a matter of right. Accordingly, cases can take a significant amount of time to get out of the motion to dismiss stage as filing an amended complaint will reset the timeline for responding to the complaint and delay getting a ruling if another motion to dismiss is subsequently filed. See C.R.C.P. 8; C.R.C.P. 12; C.R.C.P. 15.
– Default: If a defendant fails to file an answer of motion to dismiss within the designated time frame, then the plaintiff may move for an entry of default pursuant to C.R.C.P. 55. Notably, an entry of default is not the same as a default judgment. An entry of default represents only a designation on the court’s docket. In contrast, a default judgment is the official order rendering judgment against a defaulted party. Procedurally, a party must first move for an entry of default and, once that has occurred, may move for a default judgment at a later date. Notably, a hearing may have to be held in order for the court to issue a default judgment so that the plaintiff can establish liability or damages for the defaulted claims. Importantly, if an entry of default has occurred but a default judgment has not yet been rendered, the defaulted party may seek to set aside the entry of default for good cause and allow the party to actually litigate the case. In contrast, once a default judgment has been issued it is much harder to unwind and, indeed, can only be unwound in specific circumstances. See C.R.C.P. 60; C.R.C.P. 55.
– At Issue: The beginning stages of a case end when all parties have been served, all responsive pleadings have been filed, and all defaults or dismissals have been entered against all non-appearing parties. At that point, the case is designated as at issue which means, in effect, that there are no unanswered claims and the case can proceed to actually litigating them. Notably, filing a motion to dismiss is not a responsive pleading. Accordingly, where a motion to dismiss has been filed, the case will not be at issue until a ruling has been made on the motion to dismiss and any remaining claims are answered. Once the case is at issue, discovery and other procedural timelines will being to run from that date. See C.R.C.P. 16(b)(1); C.R.C.P. 7(a).
Procedural and Case Timelines for the Discovery Phase of a Lawsuit in Colorado State Courts
Once the case is at issue, the next phase of the lawsuit begins. This second phase is primarily aimed at enabling the parties to engage in fact-finding to litigate the legal claims in the lawsuit and is generally referred to as discovery. In essence, the first phase of the lawsuit is designed to determine what claims have been plausibly plead and then, once it is determined which claims will proceed, the parties begin actually litigating those claims. Examples of discovery mechanisms in the second phase of a lawsuit include the ability to issue written interrogatories, request documents from opposing parties, subpoenaing documents from third parties, and deposing witnesses.
– Initial Discovery Phase: After all responsive pleadings have been filed and any non-responsive parties have been defaulted out or otherwise dismissed, the case timelines under C.R.C.P. 16 begin to run. In particular, within 14 days of the case being at issue counsel for each party must begin conferring about the case and creating a proposed case management order that will govern the procedure and timeline for the remainder of the case. The proposed case management order must be filed with the court within 42 days after the case is at issue and generally includes deadlines for amending any pleadings, deadlines for joining any additional parties, discovery deadlines such as those for expert disclosures, a discovery cut-off date, and the date trial will occur. Additionally, initial disclosures must be exchanged within 28 days of the at issue date. Initial disclosures generally represent a list of the witnesses and documents already known or readily available to the parties at the time the disclosures are due. See C.R.C.P. 16; C.R.C.P. 26(a)(1).
– Commencement of Discovery: Once a proposed case management order has been created and submitted to the court by the parties, a case management conference will be held within 42 days of the at issue date. At the case management conference, the court will discuss the proposed case management order submitted by the parties, make any necessary edits, and officially enter it as a court order. Upon entry of the case management order, discovery is allowed to commence and the parties can begin using traditional discovery mechanisms such as issuing written interrogatories, requests for admissions, requests for production of documents, noticing depositions, and subpoenaing documents and witnesses. Additionally, deadlines that typically fall within the discovery phase include deadlines to amend the complaint and answer, deadlines to join additional parties, and deadlines to designate non-parties at fault. These deadlines are typically set in the discovery phase to allow parties to engage in fact-finding and alter or amend their claims or defenses before going to trial. See C.R.C.P. 16(b); C.R.C.P. 26(d).
– Close of Discovery: The case management order will also indicate the discovery cut-off date, meaning that all discovery will have to be concluded by that date. Under C.R.C.P. 16(b)(11), the discovery cut-off date will have to be set at least 49 days before the trial date. Additionally, motions that typically need to be filed at or around the discovery cut-off date include summary judgment motions pursuant to C.R.C.P. 56, which must be filed at least 91 days before the trial; and motions challenging the admissibility of expert testimony pursuant to Colorado Rule of Evidence 702, which must be filed at least 70 days before trial. These motions are typically filed towards the end of discovery after the factual aspects of the case have been solidified and discovery has been taken on any necessary witnesses. See C.R.C.P. 16(c).
Procedural and Case Timelines for Trial and Post-Trial Stages of a Lawsuit in Colorado State Courts
Once discovery is complete, the last phase of the case is centered around preparing for and actually going to trial. At this point, it should be clear what claims are still contested and, accordingly, what claims a trial is necessary to resolve. Additionally, as a result of the discovery process, the parties should be aware of the factual background for those claims and should be able to start preparing for trial accordingly.
– Preparation for Trial: Once discovery is closed, the parties can no longer issue written discovery requests, take depositions, or otherwise engage in the fact-finding efforts that are allowable during the discovery process. Instead, the parties must begin to focus on the facts and evidence that have turned up during the discovery process and how best to present that information at trial. Importantly, pretrial motions, such as motions in limine which usually are used to obtain a ruling on the admissibility of specific evidence, need to be filed with the court at least 35 days before the trial date. Additional responsibilities include exchanging witness lists and exhibits at least 42 days before the trial date; filing a proposed trial management order which will govern the conduct of the trial at least 28 days before the trial date; and filing proposed jury instructions and verdict forms at least 7 days before trial. See C.R.C.P. 16(c); C.R.C.P. 16(f); C.R.C.P. 16(g).
– Trial: On the trial date, the court will often begin by addressing counsel for the parties and discussing any pending matters that need to be resolved. Examples of pending matters frequently include motions that have not yet been ruled on, questions regarding the trial itself, or any other pretrial matters. Once any those matters are resolved, if a jury has been requested, the court will begin calling jurors and conducting voir dire, which is the process of questioning and selecting a jury panel. If no jury has been requested, then the trial will be to the court and, thus, no jury selection will be necessary. When the court is ready to proceed, the trial itself will begin and the parties will be allowed to give their opening statements. The plaintiff will then be allowed to present evidence for her case in chief followed by the defendant, who will be given having an opportunity to present evidence to refute the plaintiff’s claims. After the defense rests, the plaintiff may present rebuttal evidence to refute any evidence presented by the defendant that had not already been addressed in the plaintiff’s case in chief. Once both parties have rested, the case will be turned over to the fact finder; that is, the jury in the case of a jury trial and the judge in the case of a bench trial; who will then be responsible for rendering a verdict.
– Post-Trial Actions: Importantly, while the trial itself may be over after a verdict has been rendered, that does not mean that the case is over. In particular, post-trial motions may be filed up to14 days after the entry of a final judgment which frequently request, among other things, a new trial based on irregularities in the proceedings, an amendment of the final judgment, or an order requesting a directed judgment. Additionally, the entire case may be appealed to a higher court which could have the effect of overturning any judgments rendered in the case. Notably, if a party does wish to appeal, with some exceptions, a notice of appeal in both the trial court and appellate court must be filed within 49 days after entry of the final judgment. See C.R.C.P. 59; Colorado Rules of Appellate Procedure 4.
© 2018 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.