Professional Documents
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R ULES C OMMITTEE
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rules. The only procedural rule that affords guidance on that issue
is found in C.R.C.P. 1(b). That rule, which also recently was
amended, provides as follows:
(b) Effective Date. Amendments of these rules shall be effective on the date established by the Supreme Court at the time
of their adoption, and thereafter all laws in conflict therewith
shall be of no further force or effect. Unless otherwise stated by
the Supreme Court as being applicable only to actions brought
after the effective date of an amendment, they govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in
the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work
injustice, in which event the former procedure applies (emphasis
added).
As noted, C.R.C.P. 1(b) only applies to civil cases and other
rules that adopt or cross-reference to the Civil Rules. However, the
principle articulated in Rule 1(b) is not a new one, and one would
expect courts to rely on that rule when similar questions come up
in the criminal, appellate, or other contexts. Because the Supreme
Court did not limit the effective date of the new amendments to
the Civil Rules to new cases filed on or after January 1, 2012, litigators should expect that the new timing deadlines will apply to
all further proceedings in all types of pending actions, unless the
trial court deems their application in that case would not be feasible or would work injustice. Given the relatively modest changes
in the deadlines, in most pending cases, applying the new deadlines will be feasible and will not cause injustice. The only deadlines that might cause problems will be those applicable to cases
set for trial in January or early February 2012. The attorneys in
those pending cases should be able to agree readily as to whether
the new or old deadlines make the most sense and, if needed, propose their solution to the trial judge for approval.
The only other deadline that may cause problems is C.A.R.
4(a), which extends the time for filing the Notice of Appeal from
45 days to 49 days. Colorados appellate courts previously have
interpreted this rule to establish a non-waivable, jurisdictional prerequisite.7 However, this rule, which must be complied with to create appellate jurisdiction in the court of appeals, is not scheduled
to become effective until July 1, 2012. The issues raised by this rule
change are discussed in the section entitled Colorado Appellate
Rules, below.
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Trial Management
TMOs are now due 28 days before trial (down from 30), but
witnesses and exhibits must be exchanged 42 days before trial,
thereby providing an additional 4 days to get those lists incorporated into the TMO. Trial briefs are due 14 days before trial (the
same as the previous 10-day deadline when weekend days were
added). Dates for designating deposition excerpts for trial are all
rounded up. The change that may seem most dramatic is the filing
of proposed jury instructions, which is now set for 7 days (rather
than 3) before trial. Again, when weekends were excluded from the
3-day count, in most cases, jury instructions have been due 5 or 6
days before trial. Changes to both Rules 16.1 (simplified procedure) and 16.2 (domestic relations facilitated management) mostly
involved simply rounding to the nearest 7-day period.
Rules 69 to 120
Timing changes to Rules 69 to 120 generally fall into one of two
categories: (1) they are routine amendments to comply with the
Rule of Seven; or (2) they are rules that will have July 1, 2012 effective dates because of the need to align them with statutory requirements. Rule 102(n)(1) relating to attachments retains a short
period of 2 business days as the minimum notice to be given to a
plaintiff by a defendant who wishes to traverse an affidavit supporting the attachment.
The garnishment provisions of Rule 103 are significantly intertwined with statutory requirements contained in CRS 13-54.5101 et seq., as are the timing provisions of Rule 105.1 relating to
challenges to spurious liens and documents filed with the clerk and
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Probate Rules
The Colorado Rules of Probate Procedure experienced only two
changes. The Rule of Seven was applied to alter the deadlines in
Rule 8.8(a)(4) and (b).
Appellate Rules
As discussed above, there are two major changes in the Appellate Rules. The first is that C.A.R. 26(a) was rewritten to make it
identical to C.R.C.P. 6(a), and C.A.R. 26(c), which granted 3 extra
days for service by mailing, was repealed. C.A.R. 30(e)s allowance
of 3 extra days for e-service also was deleted. Thus, Rule 26 now
fully incorporates the Rule of Seven.41
The second significant change, effective July 1, 2012, will be to
Rule 4(a), which extends the jurisdictional time limit within
which a Notice of Appeal must be filed in either civil or criminal
cases from 45 to 49 days. This change to C.A.R. 4(a) is the only
deadline for which genuine problems might arise. Colorados
appellate courts previously have interpreted this rule to establish
a non-waivable, jurisdictional prerequisite.42 In other words, if an
appellant misses the deadline for filing his or her Notice of
Appeal, the appellate courts have no jurisdiction to consider or
rule on that appeal. As noted, this rule change is not scheduled to
become effective until July 1, 2012. However, the issue that could
arise is what should be done with trial court cases in which judg-
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Conclusion
Although the large number of rule changes necessarily involved
in implementing the new method of calculating deadlines appears
daunting, the Rule of Seven should become much easier for attorneys, paralegals, and legal assistants to use to determine and calendar deadlines for litigation of all types. Trial lawyers who handle
both criminal and civil matters should find that using the same
Rule of Seven in both types of cases makes it much easier to keep
track of when the various steps in the litigation process need to
occur. Lawyers should avoid trying to memorize deadlines in the
rules and always will be better off reviewing the specific provisions
of the rules to determine the deadlines each time filings are due;
however, the new approach to this issue should significantly ease
at least one portion of the litigation process.
Notes
1. See Holme, Proposed New Rules for Calculating Trial and Appellate DeadlinesAttorney Comments Requested, 40 The Colorado
Lawyer 27 (Sept. 2011).
2. See Holme, 2006 Amendments to the Civil Rules: Modernization,
New Math, and Polishing, 35 The Colorado Lawyer 21 (May 2006).
3. See 2010 version of C.R.C.P. 6 and Committee Comment to Rule
6(e).
4. For the few misplaced mathematicians who have passed the bar, the
Rule of Seven works because the first sentence of C.R.C.P. 6(a)(1) states
that one does not count the day on which the triggering event occurs.
Thus, for a motion filed on a Tuesday, day 1 is actually Wednesday, so that
day 7 is the following Tuesday.
5. F.R.C.P. 6(a)(5).
6. Id. at 6(d).
7. See, e.g., Estep v. People, 753 P.2d 1241 (Colo. 1983); People v. Silvola, 597 P.2d 583 (Colo. 1979).
8. CRS Title 16, Articles 1-13.
9. See, e.g., Borer v. Lewis, 91 P.3d 375, 380 (Colo. 2004).
10. The 2012 Colorado Legislature is scheduled to be in session from
Wednesday, January 11 to Wednesday, May 9.
11. If not enacted, the deferred rules changes could be withdrawn.
12. C.R.C.P. 103 and 403.
13. C.R.C.P. 105.1.
14. C.R.C.P. 411.
15. C.A.R. 4.
16. C.R.Juv. P. 6.
17. C.M.C.R. 210, 229, 241, and 245.
18. Rules applicable to proceedings involving the Office of Attorney
Regulation Counsel are a part of the Colorado Rules of Civil Procedure
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(Civil Rules)C.R.C.P. 251.1 et seq.; the opening paragraph of the Uniform Local Rules for All State Water Court Divisions applies the Civil
Rules; the Colorado Rules of Probate Procedure apply the Civil Rules
except when they are in conflict; and the Colorado Rules of Juvenile Procedure, except for delinquency proceedings, are conducted pursuant to the
Civil Rules (Rule 1).
19. C.R.C.P. 6(a) is divided into two subsections, and C.A.R. 25(a) and
Crim.P 45(a) consolidate the two subparts into one section. The text of
those three rules is, however, identical.
20. For those of you who are keeping track, C.R.C.P. 6(b), which allows
times set by the rules to be enlarged for good cause, remains unchanged.
C.R.C.P. 6(c) related to the impact of the old practice of terms of court,
which used to expire early every year. That rule was deleted as obsolete and
no longer relevant to todays court schedules. C.R.C.P. 6(d) relating to
motion practice was deleted because it was superseded by C.R.C.P. 121
1-15.
21. These forms of service still are authorized by C.R.C.P. 5(b)(2)(B),
(C), or (D), although they are largely outmoded where electronic service
(e-service) is required (most Colorado courts).
22. C.A.R. 30(e) did allow 3 extra days for e-service, but that allowance
also has been deleted.
23. This new convention actually was adopted by the Rules Committees and the Supreme Court, so he must not have been the only lawyer so
challenged.
24. C.R.C.P. 26(a)(2)(C)(I).
25. C.R.C.P. 12(a).
26. Id.
27. C.R.C.P. 12(e) and 15(a).
28. C.R.C.P. 16(b)(3) to (8).
29. People v. Shreck, 22 P.3d 68 (Colo. 2001).
30. C.R.C.P. 26(a)(2)(C)(III).
31. C.R.C.P. 16(c)(1) and (2).
32. See CRS 38-35-201 et seq.
33. C.R.C.P. 121 1-15(1)(b).
34. C.R.C.P. 121 1-15(1)(c).
35. Id.
36. Most readers may not need to be reminded of it, but the complexity
and inconsistency of the old counting system can be shown by considering
filing such a reply brief to a summary judgment motion. Under the previous rules, in most cases, that reply brief would not have been filed until the
passage of 7 business days, 4 weekend days, perhaps a holiday, and up to 3
additional days, for a total of 11 to 15 days, depending on what day the
response was filed.
37. See Rule Change 2011(16), available at www.courts.state.co.us/
Courts/Supreme_Court/Rule_Changes/2011.cfm.
38. CRS 37-92-201. The seven Colorado watersheds/divisions are
for the Arkansas; Colorado; Rio Grande; South Platte; Gunnison/Dolores
(north); San Juan/Dolores (south); and Yampa/White/North Platte River
basins. Id.
39. CRS 37-92-203.
40. C.R.C.P. Chap. 36.
41. The C.A.R. never allowed 3 extra days for service by courier.
42. See, e.g., Estep, supra note 7; Silvola, supra note 7.
43. C.A.R. 4(a).
44. C.A.R. 40 and 52.
45. C.A.R. 52(a).
46. Compare C.A.R. 52(a) and 53(b)(3).
47. C.A.R. 34(b)(1).
48. There are no Rules 252 to 259.
49. It is hoped that the Colorado Legislature will amend the criminal
laws to be consistent with these changes. If the legislature decides to deviate on some of the changes, these approved rules may be revised to keep
both the legislative timing and the rules timing consistent.
50. Crim.P. 5(a)(4)(I).
51. Crim.P. 16, pt. II(c) and (d) and pt. V(b)(1). n