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C OLORADO S UPREME C OURT

R ULES C OMMITTEE

Reproduced by permission. 2012 Colorado Bar Association,


41 The Colorado Lawyer 33 (January 2012). All rights reserved.

Rule of Seven for Trial Lawyers:


Calculating Litigation Deadlines
by Richard P. Holme 2011
tarting January 1, 2012, all trial lawyers in the state, regardless
of their areas of practice, have a new way of determining
when actions must be taken in pending cases and cases to be
filed in the future in almost all Colorado state courts. Trial lawyers
and litigators will need to refer to the applicable newly adopted
rules of procedure to be sure they are determining the correct deadlines for action.
Some of the rules will not become effective until July 1, 2012
(most notably the revisions to the Criminal Rules of Procedure),
but most of them apply as of January 1, 2012. Changes are being
made to the Colorado Rules of Civil Procedure (Civil Rules or
C.R.C.P.), for the district courts and for the county courts; Colorado Appellate Rules (Appellate Rules or C.A.R.); Colorado Rules
of Criminal Procedure (Criminal Rules or Crim.P.); Colorado
Rules of Probate Procedure; Water Court Rules; Colorado Municipal Court Rules of Procedure; and rules applicable to matters
involving the Office of Attorney Regulation Counsel (OARC).1
The rules changes have been in the drafting process for almost two
years by the Colorado Supreme Courts various Rules Committees, in an attempt to make the method for calculation of time consistent across all court rules.
In short, most of the procedural rules have been revised to adopt
a Rule of Seven. Deadlines for filings are revised to create multiples of seven days (that is, multiples of weeks) for actions to be
taken after the case commences or filings are made, and for actions
that must be taken before the trial date. Using the Rule of Seven,
most actions will be due a certain number of weeksto the same
day of the weekfrom the triggering day. For example, when
motions or opening briefs are filed on a Tuesday, answer briefs will
be due on a Tuesday, as will reply briefs. When a trial is scheduled
to start on a Wednesday, most pre-trial actions will be due on a
Wednesday, from one to five weeks before the start of the trial.

Background of the Rules Changes


Since Colorados earliest days, both statutes and rules of procedure have relied on deadlines for taking actions based on familiar
multiples of fivethat is, 5, 10, 20, 30, 60 days, and so on. Because

About the Author


Richard P. Holme, Denver, is a senior
partner in the trial group at Davis Graham
& Stubbs LLP. He is a member of the
Colorado Supreme Court Standing Committee on Civil Rules(303) 892-9400,
richard.holme@dgslaw.com.

weeks are 7 days long, and weekends used to be non-working days


(and still are for governmental bodies and courts, if not for the
individual judges), this frequently meant that deadlines for taking
actions would fall on a Saturday or Sunday. This, in turn, required
additional rules to determine the actual deadlines and some calculating to figure out those deadlines.
The last major revision of rules relating to the calculation of
deadlines came when the Civil Rules were amended in 2006 to
make them consistent with the Federal Rules of Civil Procedure
(Federal Rules).2 Those rule changes excluded counting weekend
days and holidays from deadlines of fewer than 11 days; added 3
extra days for service by e-mail or by courier; and included comments about when the 3 days for service were to be added if deadlines fell on weekends and holidays.3 These changes may have
increased fairness among parties and made determining deadlines
largely the same for federal and state cases; however, they did not
ease or simplify the process of determining the specific dates on
which those deadlines would fall.

Synchronizing Colorado Rules With Federal Rules


Shortly after Colorados new rule revisions were adopted, the
federal courts announced that they were completely revamping
their rules for calculating deadlines. The new Federal Rules then
became effective December 1, 2009. When the Colorado Civil
Rules Committee examined them to see whether Colorados rules
should be revised to mimic the new Federal Rules, it was apparent
that the fundamental and overarching change in the Federal Rules
made such good sense that the Colorado Rules should be changed
to incorporate the major federal changes.
The obvious change in the Federal Rules was that instead of
using multiples of 5 or 10 days, deadlines should be established
using multiples of 7 days (multiples of a week). With this change,
problems of deadlines falling on weekends largely disappear. If, for
example, a motion is filed on a Tuesday, a response due in 21 days
also will be due on the Tuesday, three weeks away, and a reply will
be due 7 days later on the following Tuesday.4 The Federal Rules
retain the safety net that deadlines that fall on a weekend or holi-

Notice to Readers: Rule Change 2011(18), Time Calculation


Changes to Colorado Rules, was amended and adopted by the
Supreme Court on December 14, 2011 and is effective January 1,
2012. The rule change, which includes only sections where amendments have been made and showing changes through underlined
text and strikeovers, is available at www.courts.state.co.us/user
files/file/Court_Probation/Supreme_Court/Rule_Changes/2011/
2011_18_redlined.pdf.

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day will be extended to the following business day. Thus, if a lawyer
thought he or she could gain an advantage over an opponent by filing the motion on a Saturday, the response would not be due until
the Monday following the response period.
The new Federal Rules also solved a vexing problem by clarifying that when counting leads to a deadline ending on a weekend
or holiday, one continues to count in the same direction.5 One
counts days after the filing of a motion to calculate when the
answer brief is due, but continues counting backward for deadlines
that fall x days before the trial date. Thus, a filing due 21 days
before a Monday trial date and with a deadline that would fall on a
holiday Monday will be due on the Friday before the Monday holiday, not the Tuesday after. Conversely, the response to a motion
filed on a Monday 3 weeks before a Monday holiday will be due
on the Tuesday following the holiday. The Civil Rules Committee
agreed that these ideas made extremely good sense.
The Federal Rules have had a long-standing provision that gives
3 extra days to respond to matters that were served via the U.S.
mail. Several years ago, the Federal Rules adopted a change to add
3 days to respond to matters served by electronic means or by
overnight couriers, even though those matters were going to be
received much faster than matters sent through the U.S. Postal
Service. Since then, however, many if not most courts have begun
requiring electronic service (e-service), which creates virtually no
additional time delays. In essence, that provision simply allows an
extra 3 or more days for filing responses.
Curiously, the Federal Rules retained the extra 3 days for e-mail
and other service.6 Therefore, under the revised Federal Rules, a
motion filed on Wednesday would be due on a Saturdayor,
rather, the subsequent Monday (or Tuesday). The Colorado Civil
Rules Committee determined that this provision for an extra 3
days for mailing and e-service upset the simplicity created by the
Rule of Seven, and was rejected.
After determining that the Rule of Seven made excellent sense,
the Colorado Supreme Court suggested that it would be desirable
to attempt to adopt and use that theory for all courts and all causes
of action. As a result, the various Colorado Rules Committees were
enlisted to review most of the sets of rules that establish deadlines,
and proposed changes were developed and have now been
approved by the Supreme Court.

Rules Effective January 1, 2012


The vast majority of the procedural rules changes are effective
for cases filed on or after January 1, 2012. This applies to most
Civil Rules (with the most notable exception of Garnishment
Rule, C.R.C.P. 103, which will become effective July 1, 2012);
most appellate rules (except C.A.R. 4 relating to the jurisdictional
deadline for filing notices of appeal, which also will become effective July 1, 2012); Probate and Water Court Rules; and rules applicable to matters involving the OARC. The major exception to the
January 1 effective date for rules changes will be the amendments
to the Criminal Rules of Procedure, which will not be effective
until July 1, 2012.

Effect on Pending Cases


Perhaps the more nettlesome problem for most trial practitioners in the short run will be the effect of the new rules on pending
casescases filed before January 1, 2012 under the previous timing

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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.

Rules Effective July 1, 2012


Based on Statutory Deadlines
The uniform application of the Rule of Seven made sense to the
various Rules Committees; however, a problem arose because a
number of the rules contained timelines for action that are based
on deadlines established by provisions in the Colorado Revised
Statutes. The Criminal Rules in particular contain a significant
number of deadlines that are established by the Colorado Code of
Criminal Procedure.8 Virtually all of those statutory deadlines are
based on the multiples of 5 or 10 days, or periods shorter than 7
days. There is, of course, the doctrine that procedural rules are
within the province of the Supreme Court and only substantive
provisions are to be governed by the Colorado Legislature.9 Thus,
it might be argued that even changing the deadlines for actions
that are based on statutory provisions is permissible. However, in

COLORADO SUPREME COURT RULES COMMITTEE


line with general principles of comity, the decision was made to
isolate the rules that had statutory underpinnings and to approach
the legislature with an omnibus bill designed to bring the statutes
and the rules into congruence by amending the statutes to adopt
the new Rule of Seven deadlines proposed for the affected rules.
This cannot be accomplished by the Colorado Legislature until its
2012 term, which commences Wednesday, January 11.10
Therefore, the rules that are subject to the statutory provisions
will not become effective until July 1, 2012, so as to allow the legislature time to act on the proposed omnibus bill.11 In addition to
the Criminal Rules, the delayed effective date will largely involve
action deadlines for garnishment proceedings,12 spurious liens,13
appeals from county courts,14 appeals to the court of appeals,15
petitions for adoption,16 and several of the municipal court rules,
which are based on identical or similar Criminal Rules.17

Uniform Provisions Contained in Various Rules


Even though rules changes are being made in all trial disciplines,
there are several uniform factors that apply to all these changes. As
noted at the outset, the major change throughout all the rules
changes is the shift of deadlines to multiples of 7 days from the
triggering events. Key to the implementation of this overall change
are the amendments to the rules that establish the basic methodology for counting days to establish deadlines. These rules are Rule 6
of the Civil Rules, Rule 45(a) of the Criminal Rules, and Rule
26(a) of the Appellate Rules.18 Because the language of these rules
is now identical, and because the nature of the changes is best
understood by reviewing the changes made to C.R.C.P. 6, the
explanation of the changes will focus on that rule.19 The changes
to Rule 6(a)(1) are shown with the previous, deleted language in
strikeover text and new language in bold italics.
Rule 6. Time
(a) Computation. (1) In computing any period of time prescribed or allowed by these rules, the day of the act, event, or
default from which the designated period of time begins to run
shall not be included. Thereafter, every day shall be counted,
including holidays, Saturdays or Sundays. The last day of the

period so computed shall be included, unless it is a Saturday, a


Sunday, or a legal holiday, in which event the period runs until
the end of the next day which is not a Saturday, a Sunday, or a
legal holiday. The term calendar days shall mean consecutive
days including holidays, Saturdays or Sundays. The next day is
determined by continuing to count forward when the period is
measured after an event and backward when measured before an
event. Unless otherwise specifically ordered, when the period of
time prescribed or allowed is less than eleven days and not specified as calendar days, intermediate Saturdays, Sundays, and
legal holidays shall be excluded in the computation.
The two major changes in this subsection are: (1) now, a day is a
day is a day; and (2) Saturdays, Sundays, and holidays no longer are
excluded when calculating time deadlines of fewer than 11 days.
Every day following the day of the triggering event is counted,
regardless of whether it is a business day; for example, Wednesday
and Sunday is each counted as 1 day. Given that addition, the definition of calendar day is no longer necessary and that definition,
together with the few references to calendar days in other rules,
was deleted. Due to the mandate that all weekend days and holidays must be counted, there are a small number of instances where
the time period for taking action is slightly shorter than it used to
be.
Section 6(a)(1) now also contains a sentence providing for time
to be counted in the same direction. Counting continues forward
when counting deadlines that follow the triggering event (for
example, for moving or answering a complaint or responding to a
motion), but continues backward when computing dates before the
triggering event (for example, before trial).
The other major change to Rule 6 was the deletion of Rule
6(e).20 This section allowed 3 extra days for responding to matters
served by mail, e-mail, or overnight courier pursuant to C.R.C.P.
5(b)(2)(B), (C), or (D).21 With the advent of required e-filing and
e-service in most Colorado courts, other modes of service are
increasingly obsolete. This deletion also removes the minor advantage that a litigator might have had if he or she served motions by
hand-delivery to shorten response deadlines by 3 days. Most

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important, the deletion of the extra 3 days preserves the benefit of
adopting the Rule of Seven. It allows the simple and easy computation of dates by which actions must be taken, by just counting
weeks. This is the only substantive change that Colorado made
from the existing counterpart in Federal Rule 6(d). Criminal Rule
45(e) contained a similar provision adding 3 days for service by
mail, courier, or e-service, and it too was deleted from the Criminal
Rules. The deletion of Appellate Rule 26(c) is not quite as comprehensive, because that section allowed only 3 extra days for mail,
but no extra time for service by e-mail or courier.22
To ameliorate the impact of the deletion of the 3 extra days
when service was made by e-mail or e-service, most filing deadlines in the new rules were rounded up so that the changed deadlines for responses were moved to the next longer 7-day period. For
example, 10-day deadlines usually are rounded to 14 days, 15-day
deadlines usually are rounded to 21 days, and 30-day deadlines
usually are changed to 35 days. In some cases, where the periods
were longer than 2 weeks and where time was important, periods
were shortened. Thus, the requirement to file a Trial Management
Order (TMO) 30 days before trial was shortened to 28 days before
trial.
As a matter of uniformity and ease of reading, it was decided to
put the number of days in numeralsthat is, 14 days rather than
fourteen days or fourteen (14) days, as previously had been scattered throughout the rules.
One rather quirky change to the listed deadlines to help the
mathematically challenged is the inclusion of the number of weeks
for periods of more than 49 days; for example, a rule might now say,
91 days (13 weeks). This modification was adopted when a member of the committee confessed that although he could divide up to
49 by 7 to determine the number of weeks before actions were
required, he got lost above that.23 Thus, all time periods in excess of
49 days also include a notation of the number of weeks that time
period involves. As a result, a rule providing for a 126-day time
period before trial (for disclosing expert reports) helpfully notes that
it is (18 weeks) before trial.24 This makes calculating response
dates an easy matter of counting the weeks on ones calendar.

Case and Trial Management


At least some of these changes will apply to most civil cases.
Amendments to Rule 16(b) move the initial meet and confer date
from 15 to 14 days after a case is at issue. The requirement to set a
trial date is moved back from 30 days to 42 days. This was intentionally expanded so that it follows the date for initial mandatory
Rule 26 disclosures, which has been extended from 30 to 35 days.
It also will give the parties more information about the opponents
case at the time they are to confer about the issues, an idea as to
whether there is need for a Modified Case Management Order,
and a sense about the length of the trial. The filing of the Certificate of Compliance is delayed to 49 days so that it will not need to
be filed until after the parties have conferred. Additional parties
and amendments to the pleadings are now due 17 weeks (119 days,
down from 120 days) after the at-issue date.28
Rule 16(b)(9)s provisions on pretrial motions moved the deadline for filing summary judgment motions from 85 to 91 days.
(Now, isnt it helpful to know that it will be due (13 weeks) before
trial?) However, a new provision in that subsection requires that
Shreck 29 motions challenging expert testimony under C.R.E. 702
be filed no later than 70 days before the date of trial. This deadline
was chosen to correlate to the end of expert disclosures that are
now set for 77 days before trial.30
Discovery now may begin a little earlier (42 days instead of 45),
which is one week after Rule 26(a) disclosures and the deadline for
the parties to meet and confer pursuant to C.R.C.P. 16(b)(3). The
presumptive deadline for discovery is moved a day closer to trial,
from 50 to 49 days.
Although the deadline for parties to meet and confer is 42 days
after the case is at issue, parties would be well advised not to wait to
the last day to do so. The deadlines for filing either a Stipulated or
a Disputed Modified Case Management Order also is 42 days
after the case is at issue.31 Thus, for example, if a party waits to the
last day to ascertain that a Modified Case Management Order is
needed to obtain permission for more depositions than are allowed
by the Presumptive Case Management Order, it may be too late to
avoid the automatic application of the Presumptive Case Management Orders limitation.

Civil Rules 1 to 122 and 301 to 411


Because there are literally hundreds of changes in the rules, this
article does not list or describe every one of the changes. Rather, it
will highlight some of the more significant changes and the
changes that will impact practitioners most in the area governed
by the rules changes. As should always be the case for trial and
appellate lawyers preparing to meet deadlines, readers should neither rely on this article nor on their memories of what rules say to
determine due dates. They should always return to the rules themselves to verify deadlines.

Pleadings and Motions


The time for filing answers or motions challenging a complaint
is extended from 20 to 21 days when a defendant is served within
the state, and from 30 to 35 days when the defendant is served outside the state.25 Following rulings on Rule 12 motions, the parties
will have 21 days to file responsive pleadings.26 Responses to
amended pleadings, whether due to a more definite statement or
to amended complaints or counterclaims, are changed from 10
days to 14 days after service.27

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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.

Disclosures and Discovery


Disclosure of expert reports is moved back a few days before
trial126 days (18 weeks) for claiming parties experts and 98
days (14 weeks) for defending parties expert disclosures. The pre-

COLORADO SUPREME COURT RULES COMMITTEE


vious requirement that disclosures to rebut defense experts be
made 20 days after the defense disclosures are served was moved
to a definite 77 days before trial. Thus, early disclosure of defense
expert reports will not mandate early rebuttals. Most forms of
written discovery, such as interrogatories, requests for production
of documents, and requests for admissions, now are due in 35
days, up from 30 (formerly 33 days if served by mail, e-service, or
courier).

Judgments and Injunctions


The deadlines in the rules relating to judgments were modified
slightly to meet the Rule of Seven. A few other changes also were
made as a result of the Committees close review of those provisions. In Rule 54(b), the anachronistic and rarely used provision
allowing clerks to tax costs on one days notice was simply deleted.
For years, the taxation of costs has been handled pursuant to Rule
121, 1-22, which called for the submission of a Bill of Costs (and
motions for attorney fees) within 15 (now 21) days after the entry
of judgment.
Motions for summary judgment now must be filed at least 91
days (13 weeks) before trial. Most trial lawyers know, however, that
any realistic hope for summary judgment will be greatly enhanced
if such motions are filed significantly earlier than that.
The entry of judgment rule, Rule 58(a), was amended to fill an
oversight and to allow judgments to be electronically served, as well
as mailed. Today, most judgments and other orders are e-served
rather than mailed.

Contrary to most other changes, the time for filing post-trial


motions under Rule 59(a) was changed from 15 to 14 days. This
was done to mimic the same change in Rule 62 relating to the
automatic stay of execution. There was a strong feeling that judgment debtors should not be given another 6 days within which to
transfer, spend, or move money free from possible execution without the need to file a supersedeas bond.
Rule 65(b)s requirements relating to temporary restraining
orders (TROs) were modified by the Rule of Seven, except that its
provision allowing an adverse party to move to dissolve or modify a
TRO within 2 days of the original order was retained, with the
clarification that the 2 days must be business days to avoid the
need for a court to hold a hearing on a weekend.

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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recorder.32 The timing changes in Rule 104 relating to replevin
simply were adjusted to the Rule of Seven, except for one provision that allows a party to take exception to the sufficiency of a
surety on a bond or the amount of the bond. This time period was
left at 2 days, but it was clarified that those days are to be business days.

Rule 121 Practice Standards 1-15 Motions


The only practice standard that had more than minor Rule of
Seven changes was 1-15 relating to motion practice. Language
urging motions to be kept under 10 pages was moved verbatim
from subsection (c) to (a), to give it slightly more prominence and
to move it out of a subsection related to motions for summary
judgment. Times for responding to motions was extended from 15
days to 21 days, unless it is a motion filed within 42 days of the trial
date, in which case responses are to be filed within 14 days to give
the trial judge a little more time to consider it.33 Reply briefs still
must be filed within 7 days of the response, but that is now a significantly shorter time because it is an actual 7 days without the
additional days for service and weekend days.34 This was done both
to speed consideration of motions and to encourage lawyers to
focus and shorten their reply briefs.
The exception to this tighter time frame is reply briefs filed in
support of summary judgments.35 These replies often are more
complicated because they frequently must confront arguments in
the answer brief that the case actually involves disputed issues of
fact. Furthermore, summary judgment motions must be filed well
ahead of trial and the extra 7 days will not cause as many problems

in that case. Finally, 14 days is about the equivalent of the previous


7-day limit when days for service and weekends were added.36

County Court Civil RulesC.R.C.P. 310 to 411


County court procedures tend to be much quicker and involve
fewer disclosures and discovery than district court procedures. Still,
the timing changes made to the county court rules track the
changes made in the counterpart rules for the district courts in
most instances and for the same reasons. Given the expedited procedures generally used in county courts, there are significantly
fewer rules that needed to be amended.

Water Court Rules


In addition to changes made to the timing provisions of the
Water Court Rules, a substantive change was made to Rule 3(b)
relating to the form of applications for water rights. Those changes
are beyond the scope of this article.37
Colorado is divided into seven water divisions (one division for
each of the seven major watersheds in the state).38 Each division
has a water judge who handles all matters within that division;
water judges are appointed by the Chief Justice of the Supreme
Court.39 Although the water courts operate under the Civil Rules,
they also use and apply the Uniform Local Rules for All State
Water Court Divisions.40
Most of the deadlines in the Water Court Rules were modestly
amended to incorporate the Rule of Seven. The exception to these
amendments is found in Water Court Rule 6(e). The Water Court
Rules Committee decided that previous practice, case law, and consistency counseled in favor of retaining existing statutory deadlines
in this rule, even in favor of seeking a statutory change. Thus, provisions in the previous Water Court Rule 6(e) referring to 30 days,
60 days, 4 months, and 1 year were left unchanged.

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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ments become final between May 16, and June 30, 2012. The 45day deadline for filing a Notice of Appeal will expire after July 1.
The question exists as to whether appellants must file within 45
days or whether they have 49 days under the revised Rule. There
are several arguments that could justify the application of the new
49-day deadline. First, the language of the revised Rule 4(a) states
that the notice of appeal shall be filed with the appellate court . . .
within 49 days of the entry of the judgment . . .(emphasis added).
For appeals filed on or after July 1, the number of days for filing
should be interpreted using the language that is applicable as of the
date of filing, not as of the date of the judgment. One also can
argue that the appellate courts should use the language of C.R.C.P.
1(b) to extend the jurisdictional deadline another 4 days. If one has
filed after 45 days but within 49 days, one might even argue that
the excusable neglect provisions of C.A.R. 4(a) should be
employed to provide the extra 4 days. However, there is no guarantee that these arguments will prevail. Thus, the cautious appellant is well advised to avoid the issue by filing the Notice of Appeal
within 45 days of the final judgment. A change that can provide at
least some limited assistance is that the time within which appellate courts can grant an extension for filing the notice of appeal for
excusable neglect has been extended from 30 days to 35 days.43
Sharp-eyed rule aficionados may wonder at the references in
Appellate Rules 3.4(l) and 41(b) to the numbers 43 days, 29
days, and 15 daysnumbers indivisible by seven. Not to worry.
Those time limits relate to the time for issuance of mandates by
the clerks of the court of appeals and Supreme Court and are
intentionally set so that the mandate will issue the day after the
expiration of the time limits for filing petitions for certiorari (42
days, or 28 days for workers compensation and unemployment
insurance cases) or petitions for rehearing (14 days).44
One of the larger time changes is provided in cases that commence in the county court and are appealed to a district court.
After the district courts decision on that appeal, a party now has
42 days (increased from 30 days) within which to file its petition
for certiorari.45 This makes the time for petitioning for certiorari the
same for appeals from the district court as the time to petition for
certiorari from the court of appeals (42 days, reduced from the
peculiar previous time limit of 46 days).46
One of the changes that reduced the time for action that could
be a trap for the unwary is that a party wanting oral argument of
an appeal now must file a written request for oral argument within
only 7 days after the last day briefs are filed (down from 10 days).47
Aside from those changes, most of the remaining changes in the
Appellate Rules are simply rounding time periods up or down to
a period of weeks to comply with the Rule of Seven, and all should
be checked any time an appeal is being pursued because some of
the deadlines are rounded up to allow longer periods but some are
rounded down to provide less time.

rules have been moved either up or down to the nearest number of


days that are divisible by 7.

Rules of Criminal Procedure


Although the changes to the Criminal Rules are not set to take
effect until July 1, 2012 (to allow for legislative changes to the
Colorado Code of Criminal Procedure), the rule changes have
been approved subject to those legislative changes and can be discussed with some certainty.49 All of the deadlines applicable in
criminal cases are not established by statute, but because enough
of them are, it was deemed too cumbersome to amend parts of the
rules that are not set by statute as of January 1, and to amend the
rest on July 1.
The fundamental change in the Criminal Rules, identical to that
in the Civil Rule 6 and Appellate Rule 26(a), is the rewording of
Crim.P. 45(a), which is the basic rule for calculating deadlines for
taking actions in a criminal case. Rule 45(a) now is identical to
both of those other rules and incorporates the Rule of Seven. The
rest of the Criminal Rules also adopt the ancillary changes in the
format used in the other rule changes (for example, use of Arabic
numerals instead of spelling out numbers, and using (__ weeks)
after longer periods). Also, for the same reasons C.R.C.P. 6(c), (d),
and (e) were repealed, Crim.P. 45 (c), (d), and (e) have been
repealed. Key among these reasons is the repeal of Rule 45(e),
which provides that an additional 3 days is added for responses to
documents served by mail, e-service, or courier. Rule 45(d) relating to timing of motions was revised and moved into Rule 47(b),
which is the basic rule relating to motions. It will be consistent

Rules Governing Lawyers and Judges


Rules 201 to 260 encompass matters involving regulation of
lawyers and judges. They include rules relating to: admission to the
bar (Rules 201 to 227); unauthorized practice of law (Rules 228 to
240); discipline and disability proceedings (Rules 241 to 251);
attorneys fund for client protection (Rule 252); and mandatory
continuing legal and judicial education (Rule 260).48 As with the
other rules changes, this series of rules has been updated and the
rules are in accord with the Rule of Seven. All deadlines in these

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39

COLORADO SUPREME COURT RULES COMMITTEE


with the organization of the Federal Rules of Criminal Procedure,
which also deals with motions in its Rule 47.
Although most of the changes in the Criminal Rules are simple
applications of the Rule of Sevenrounding up or down to the
nearest number of days divisible by 7only a couple of the more
significant changes need to be noted. First, the period for requesting a preliminary hearing in designated felony cases is shortened
from 10 to 7 days after the defendants first appearance in the
county court, while the period within which a requested preliminary hearing must be held was extended from 30 to 35 days.50 Second, the Rule 16 disclosure obligations of the defendants to disclose the nature or their defenses, including alibi and impaired
mental condition, are extended from a minimum of 30 days before
trial to a minimum of 35 days before trial.51

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

40

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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