M E M O R A N D U M
February 25, 2007
TO: Interested Parties
FROM: Commercial Docket Implementation Committee
RE: Commercial Docket Practice Standards
Introduction to Commercial Docket Practice Standards
The Commercial Docket pilot program was instituted on the belief that, in certain civil cases, the interests of the community and the parties could best be served by early and active management by the court. The procedures for the Commercial Docket have been designed to provide a “critical path” to resolution. The large majority of cases on this docket will be resolved by the parties. Typically, however, as a prerequisite to settlement, certain critical issues must be resolved by the court and certain discovery must be completed. If the most efficient path to resolution of those issues and completion of priority discovery is identified early in the case, the pre-trial procedure in the case can be designed to assist the parties in resolving their disputes with the least practical investment of resources. For cases that cannot be settled, following the critical path to resolution will also assist the parties in preparing for trial as efficiently as possible. In short, the Implementation Committee believes that designing and following an effective critical path to resolution will result in a significant savings in the party resources and court resources required to resolve a case.
These procedures have been designed by a joint bench and bar effort to help the parties and the judge work together to identify and follow the critical path to resolution for each case. The success of these procedures in a given case is dependent on parties devoting meaningful time to evaluating what actually divides them at the outset of the case, discussing the path to resolving their differences candidly with each other and the court, and being proactive and accessible as the case proceeds. These procedures are experimental and will evolve during the course of the pilot program. Participants in the Commercial Docket are encouraged to provide the court with feedback on the procedures.
The procedures consume several pages primarily because they offer a wide range of options for the court and counsel to use in deciding how to shape a particular case. In all likelihood, not all procedures would be applicable to a single case.
I. Case Initiation and Assignment
A. Scope of CD: The Commercial Docket is established as a subset of the existing Civil Docket to address disputes that require expeditious handling in order to avoid direct negative impacts on the community beyond the named parties. The Commercial Docket is intended to include cases that meet this standard. Generally, cases appropriate for the Commercial Docket fall within one of the following three categories:
1. Cases involving requests for equitable relief affecting members of the community other than the named parties—for example, the employees, customers or creditors of a business incapacitated by a corporate control dispute for which injunctive relief is sought or third party tenants of a building for which a receiver is sought.
2. Cases in which the continued existence of the dispute obstructs or negatively impacts members of the community other than the direct parties to the dispute—for example, the third party suppliers to or future tenants of a construction project disrupted by a dispute between the owner and the project contractors.
3. Cases involving unusually complex commercial issues that require active early court management to help identify and resolve one or more critical issues at the outset of the case and thereby reduce the overall private and judicial resources devoted to the litigation.
B. The process for having a case assigned to the Commercial Docket is addressed in the Chief Judge’s Directive establishing the Docket. CJDCommDocket to Chief’s Directive
C. Filing counsel are advised to put a note in the “Sender Note to Clerk” section provided in Lexis Nexis File & Serve that states ‘Commercial Docket Case.’
D. Upon assignment to the Commercial Docket, the judge handling the case will issue a notice to the parties that have appeared, with direction that they serve the notice on parties entering in the future, advising of the procedures required of cases on the Commercial Docket. CommercialDocketNoticeForm to sample.
E. Upon assignment to the Commercial Docket, the judge handling the case will review the statement of qualifications for inclusion in the Commercial Docket as quickly as possible.
1. The judge is encouraged to enter an order confirming or rejecting the assignment of the case to the Commercial Docket. The judge should strive to have such order issued well in advance of the Initial Case Management Conference.
2. However, a case designated for handling as part of the Commercial Docket pursuant to the Chief Judge’s Directive remains assigned to the Commercial Docket absent affirmative action by the Court.
3. Parties will not await a confirming order before moving forward with the case.
II. Early Case Management
A. Initial Case Management Conference
1. Set a case management conference in each case early in the case.
a) An early case management conference will be held to set the course for the case as well as identify and address case management issues as early as reasonably possible.
b) Plaintiff will set a case management conference at the outset of each case assigned to the Commercial Docket. Any party or the Court may set the conference if Plaintiff fails to do so timely.
2. The Initial Case Management Conference will be set to occur by the later of the following:
a) Thirty days after the first appearance by any defendant; or
b) Thirty days after the filing of the first pleading designating the case for inclusion in the Commercial Docket.
3. The parties (through counsel) are required to meet and confer no later than 2 days prior to the Initial Casement Management Conference and review the topics discussed in these practice standards.
a) The parties are NOT required to file any reports or proposed order prior to the Case Management Conference. The parties may do so if they believe the filing would be helpful to the Court and the parties at the conference.
b) For a sample Initial Case Management Conference Order to be issued following the conference, see CDInitialCMOForm
4. At the Initial Case Management Conference, the parties present will review with the Court the following:
a) The anticipated path and timing for getting the case “as issue” under C.R.C.P. 16(b)(1).
b) The nature of the anticipated substantive and procedural issues in the case as well as the best path for presenting the issues for resolution. The potential for success of the Commercial Docket is directly related to the willingness of the parties to have an early and candid discussion of the likely issues in the case.
c) The need or value of an accelerated pre-trial schedule.
d) Possible procedural and substantive motions. The Court will assist the parties in identifying potential motions with the highest likelihood of aiding in an efficient resolution of the parties’ disputes.
e) The parties will explore the potential for bifurcation of issues to the extent it would serve efficiency.
f) The status and plan for making Rule 26 disclosures, including the anticipated scope of those disclosures.
g) The anticipated plan for discovery, including evaluation of informal discovery arrangements, expedited discovery topics, focused discovery, or other options for pursuing the most efficient path to resolution.
h) Expert discovery issues and the potential for an early exchange of expert materials.
i) The Court will review with the parties the Court’s discovery dispute resolution procedures.
j) The Court will review with the parties the Court’s motion procedures.
k) The parties’ plans for ADR. This discussion is to determine the most efficient path to a productive ADR session and will address:
(1) What the parties need to know before ADR can be effective.
(2) What discovery or other litigation issues must be completed before ADR can be effective.
(3) The viability of early ADR.
(4) The potential for binding ADR of all or a portion of the matters in dispute.
l) The potential use of a special master for discovery or substantive issues.
m) If a trial date has not yet been set (see Rule 26(b)(4) setting default deadline of 30 days after “at issue” for setting trial), either setting trial at the Conference or establishing a deadline for setting a trial date.
n) Set case management plan, to include:
(1) A Mid-Case Management Conference.
(2) Any other status conferences deemed valuable, specifically taking into account the stage of development of the case (e.g, whether all parties were active in the case at the time of the Initial Case Management Conference) and the level of progress made during the Initial Case Management Conference.
(a) If the case needs to develop further in order to establish a meaningful case management plan, a case management conference should be set near the “at issue” date.
(3) Any status reporting requirements deemed valuable.
o) Any other procedures the Court or the parties believe would be helpful in expediting a resolution of the parties’ disputes.
B. Mid-Case Management Conference (e.g., 6 months into case or 50% to 75% through the discovery schedule).
1. At the Initial Case Management Conference, the Court and the parties will set a Mid-Case Management Conference. The purpose of the Mid-Case Management Conference is to evaluate progress and keep the case on track for trial date
2. At the Mid-Case Management Conference, the Court and the parties will review the following:
a) The nature of the issues dividing the parties (whether they be substantive, procedural, or non-legal) and the best path toward resolution of these issues. As previously noted, the success of a case in the Commercial Docket will directly relate to the candor with which the parties are willing to discuss with the Court the issues that divide them.
b) Possible procedural and substantive motions. The Court will assist the parties in identifying potential motions with the highest likelihood of aiding in an efficient resolution of the parties’ disputes.
c) Any of the issues identified to be addressed in the Initial Case Management Conference that could be addressed productively.
C. Status Conferences/Reports
1. At every case management conference, the Court and the parties shall address whether status conferences should be set.
2. Absent a contrary order by the Court in an individual case, the parties shall file a joint status report every 45 days after the date of the Initial Case Management Conference. Plaintiff is responsible for filing the status reports. Status reports shall address the following:
a) Any issues needing the Court’s attention.
b) The status of any motions or anticipated motions.
c) The parties’ general progress to date toward resolution of the parties’ disputes and anticipated path of progress.
(1) This section should address anticipated case milestones to be accomplished before the next status report
(2) It should also address whether anticipated milestones were accomplished in the past and, if not, why not as well as the steps that need to be taken to stay on schedule for trial.
d) The status of efforts to reach a negotiated resolution of some or all of the parties’ disputes.
e) Any actions that need to be taken to keep the case on schedule for trial.
D. All Conferences or Court Appearances
1. At all case management conferences, trial counsel with full authority to decide issues in the case will be present.
2. Counsel should confer and evaluate whether attendance of client representatives at any court conference would be productive and jointly decide if client representatives will attend.
3. At all court appearances and settings, attending counsel shall have full calendaring authority and should expect future court dates and schedules to be set during the appearance/setting. Dates set during court appearances are set based on the circumstances of the case and will not be continued absent genuine good cause.
4. Following all case management court appearances, the Court shall prepare or direct the preparation of an order summarizing the results of the appearance.
III. Motions Practice
A. Docket Day
1. Each division handling the Commercial Docket shall establish a scheduled Commercial Docket Day each week.
2. Each division handling the Commercial Docket shall post its Commercial Docket Day schedule and policies on the Commercial Docket website, which can be found at www.gofourth.org
3. On the Commercial Docket Day, the Division will be available to address issues arising in a case on short notice to the extent available. The judges assigned to the Commercial Docket (including the Alternate judge) shall coordinate to assure the parties’ access to the Court on Commercial Docket Days to the maximum extent possible. However, instances will arise when the parties may not be able to access the Court on a Docket Day. In such circumstance, the Division Clerk shall work with the parties to give the parties an appearance date as quickly as possible.
B. Discovery Motions
1. Discovery disputes and the attendant motions practice can be a source of significant delay and dissipation of party resources. The Commercial Docket will, therefore, strive to resolve discovery disputes as efficiently and quickly as possible and with as little motions practice as possible.
2. To the extent possible, the judge presiding over a case will review and resolve discovery disputes arising in that case.
3. The judges assigned to the Commercial Docket will make themselves available to the extent possible to resolve discovery disputes on an expedited basis through court appearances in person or by telephone.
4. Parties are required to telephone the Division handling a case before filing a written discovery motion.
a) No written discovery motion shall be filed before the movant has telephoned the division handling the case and the matter is evaluated for the most expeditious procedure for resolution.
b) If the movant is unable to make contact with the Division Clerk within one business day to set a court appearance or is otherwise authorized by the court personnel, the movant may file a written discovery motion.
C. Substantive Motions
1. Rule 56 Motions
a) Summary Judgment Procedure
(1) The Commercial Docket judges encourage parties to evaluate carefully Colorado’s standards for summary judgment and refrain from filing a motion for summary judgment except when genuine disputes of material fact do not actually exist.
(2) Each motion for summary judgment shall contain a separate section entitled “Statement of Undisputed Material Facts.” In this section, the movant shall set forth in simple, declarative sentences, separately numbered and paragraphed, each material fact which the movant believes is not in dispute and which support’s the movant’s claim that movant is entitled to judgment as a matter of law.
(3) Each separately numbered paragraphed fact must be accompanied by a specific reference to a source in the record which establishes the fact. General references to pleadings, depositions, or documents are insufficient if the document is over one page in length. A ‘specific reference’ means:
(a) In the case of a source filed with the court, the title of the document, the date on which it was filed or served, and a specific paragraph or page and line number; or, if the document is attached to the motion, the paragraph or page and line number;
(b) In the case of interrogatories or requests for admission (the pertinent parts of which must be filed with the motion), the number of the interrogatory or request;
(c) In the case of depositions or other documents bearing line numbers, the specific page and line(s) establishing the fact;
(d) In the case of affidavits submitted in support of the motion, the specific paragraph number establishing the fact;
(e) In the case of other sources not numbered by paragraph, line or page, a reference which will enable the court to ascertain the fact without reviewing the entire document; the effort at specificity may be made by highlighting, manual underscoring, or pagination supplied by the movant.
(4) Only if the nature of the material fact does not permit a specific reference (e.g., “The contract contains no provision for termination.”), is a general reference sufficient.
(5) Any party opposing the motion for summary judgment shall include a section entitled “Response to Statement of Undisputed Material Facts.” In this section, the party opposing shall admit or deny the asserted material facts set forth by the movant. The admission or denial shall be made in separate paragraphs numbered to correspond to the movant’s paragraph numbering. Any denial shall be accompanied by a brief factual explanation of the reason(s) for the denial and a specific reference to a source in the record supporting the denial.
(6) If the party opposing the motion believes that there exist additional disputed questions of fact which s/he has not adequately addressed in the submission made under the preceding paragraph, the party shall, in a separate section of the party’s brief styled “Statement of Additional Disputed Facts,” set forth in simple, declarative sentences, separately numbered and paragraphed, each additional, material disputed fact which undercuts movant’s claim that s/he is entitled to judgment as a matter of law. Each separately numbered and paragraphed fact shall be accompanied by a specific reference to a source in the record which establishes the fact or at least demonstrates that it is disputed.
(7) If the movant files a reply brief and wishes to address whether facts are disputed, the movant will include in the reply brief a section entitled “Reply Concerning Undisputed Facts” and/or “Response Concerning Disputed Facts” (depending on whether the movant is addressing the original assertions of undisputed fact or the opponent’s listed of additional disputed facts). This section will be in the same format as described in the preceding paragraphs.
(8) The sole purpose of these procedures is to establish facts and determine which of them are in dispute. Legal argument is not permitted here and should be reserved for separate portions of the briefs. If a party believes that an established fact is immaterial, for example, the fact should be admitted and that belief addressed in the part of the brief devoted to legal arguments. If, on the other hand, a party believes that the reference to a source in the record does not support the claimed fact, that factual argument may be made appropriately under these procedures.
(9) Failure to follow these procedures may result in an order striking or denying the motion or brief, and a corrected brief may have to be re-submitted.
b) Rule 56(h) Motions
(1) Rule 56(h) provides as follows:
At any time after the last required pleading, with or without supporting affidavits, a party may move for determination of a question of law. If there is no genuine issue of any material fact necessary for determination of the question of law, the court may enter an order deciding the question.
(2) Most cases assigned to the Commercial Docket only require the Court to resolve one or a handful of discreet issues to permit the parties to solve their disputes. The Commercial Docket judges encourage the use of legitimate motions under Rule 56(h) to resolve these narrowly defined and significant issues that divide the parties. See Board of County Comm’rs v. United States, 891 P.2d 963 n. 14 (Colo. 1995).
(3) The Court and the parties will discuss the potential for useful Rule 56(h) motions at court appearances.
D. Motions Procedure
1. Parties are reminded to comply with C.R.C.P. 121, 1-15(8) regarding the duty to confer. If reasonable efforts to confer have not been made, the parties should expect the court to take action to enforce the requirement.
2. Upon filing of a motion (the trial judge may exclude categories of motions from this procedure) the moving party will also set the motion on the Court’s next Commercial Docket Day, but no sooner than four business days from the date of filing.
a) The moving party shall set the matter by filing a Commercial Docket Day Notice advising the Court and all parties of the date and time at which the motion will be heard.
b) The movant shall also telephone the Division Clerk to advise of the setting at the time the Notice is filed to assure that the Court is aware the matter is being set.
3. Any party opposing the motion may, as a matter of right, file a written objection to the original setting and re-set the motion to the Court’s next succeeding Commercial Docket day, but no later. Such an objection and re-setting shall be filed no later than noon on the business day before the originally set Commercial Docket Day. A motion may only be re-set once.
4. At the Commercial Docket Day, the Court will take brief statements from the parties on the record and take one of the following actions:
a) Deny the motion without further proceedings.
b) Set a briefing schedule on the motion, addressing any discovery or other actions that may be required before a ruling can be entered.
(1) If a briefing schedule is set, the Court shall also address whether a further hearing or date for an in-court ruling will be set.
(2) If a briefing schedule is set, the Court shall advise the parties whether draft orders are to be filed and, if so, in what form and by what date.
c) Issue an order resolving some or all of the issues raised in the motion, but only on the agreement of the parties.
d) Because the Court may not grant the relief requested in the motion (absent consent of the opposing party(ies)), the presence of the opposing party is not required at the appearance on the Commercial Docket Day. A non-moving party may also send a non-lawyer representative to the Commercial Docket Day appearance, absent contrary direction from the Court.
5. The party opposing a motion may not file a written opposition to the motion until authorized to do so by the Court.
6. The judges assigned to the Commercial Docket will endeavor to decide all motions within 30 days of the motion becoming ripe.
7. Request for Ruling:
a) In the event a motion has been fully ripe for decision for 30 days and no decision has been issued, the movant should file a pleading entitled “Request for Ruling.” The Request for Ruling shall list for each motion the following:
(1) The title of the motion and the party filing it;
(2) The filing date and title of each brief filed on the motion to facilitate the Court’s easy retrieval of the briefing material.
b) Any party may file a Request for Ruling.
c) Any party may also contact the Division Clerk by telephone to advise of the filing of a Request for Ruling.
d) Any party may also deliver to the judge’s chambers a three ring binder with copies of each brief filed on a motion in sequence with attachments when a party determines that this would genuinely facilitate the Court’s review of the briefing papers.
8. Moving parties shall file a proposed order granting the relief requested with all motions for which a briefing schedule is set on the Commercial Docket Day. Upon request, the moving party shall e-mail a Word copy of the proposed order to the Division Clerk and affirmatively confirm receipt of the file by the Division Clerk.
A. Each division assigned to the Commercial Docket shall post its setting policies and dates on the Commercial Docket’s website, which can be found at www.gofourth.org.
B. Trial Settings for the Commercial Docket shall be handled at a Case Management Conference or by the following “live” setting process:
1. Each division assigned to the Commercial Docket will set a regular time for “live” trial settings.
2. A party noticing a “live” setting shall file a pleading labeled “Notice of Live Setting” at least one week before the setting date and will also telephone the Division Clerk to give the Clerk prior notice of the live setting.
3. The setting will be conducted in person or via telephone conference. The party conducting the setting is responsible for arranging the setting telephone conference.
4. Each counsel will arrange to attend or have a representative with full calendaring authority attend the setting telephone conference.
5. Counsel should consult with parties whose calendars are relevant to settings prior to the setting telephone conference. Counsel may consult with a third party during the setting conference about a given date provided counsel can do so immediately and without leaving the telephone conference (e.g., the third party to be consulted should be on the phone with a staff person during the setting telephone conference so the third party is immediately available).
6. Dates will be set before the conclusion of the setting telephone conference. If the parties are unable to agree upon a date, the Division Clerk will have the authority to select a date.
7. The judges assigned to the Commercial Docket will strive to honor all dates set in this process. The judges will coordinate their schedules to honor these dates and, when necessary, will resort to use of a substitute judge to maintain set dates.
8. Dates set by this process will not be continued absent extraordinary circumstances.
9. Note that routine settings on the Commercial Docket Day are not handled by this “live” setting system. See section III.D. Above.
V. Trial Procedures
A. Each division assigned to the Commercial Docket shall develop standard procedures for trial. The Commercial Docket judges shall coordinate to minimize the differences between their trial procedures.
B. Each Commercial Docket division shall post its procedures and its standard trial schedule on the Commercial Docket website, which can be found at www.gofourth.org.
VI. Other Commercial Docket Procedures/Policies
1. Dates set through the Commercial Docket procedures are set based on the circumstances of the case and will not be continued absent genuine good cause.
2. Deadlines remain in place until re-set by order of the Court.
3. Parties should not assume that stipulated motions to continue dates will be granted.
4. The Court will accommodate limited unopposed extensions of time when the extension will not impact the overall progress of the case to resolution.
5. The extension of a deadline is not considered good cause to vacate a trial or hearing date.
B. Parties are encouraged to use technology for courtroom presentations. At this time, parties must supply their own technology and support equipment. This encouragement does not apply to Commercial Docket Day presentations in light of the truncated nature of those proceedings.
C. To the extent feasible, the Commercial Docket divisions will adopt a chambers e-mail address to facilitate party submission of proposed orders.
D. If a substitute judge handles an early hearing in a case (such as a hearing on a Temporary Restraining Order, class certification hearing, or even an Initial Case Management Conference), the substitute judge has the sole discretion to decide if s/he now has such familiarity with the case that efficiency is served by having the case re-assigned to that judge for the remainder of the case.
E. The Commercial Docket judges shall liberally permit parties to appear in court by telephone when convenient and efficient.
1. Counsel are reminded that some court appearances, such as trial and significant arguments, cannot be handled by telephone effectively.
2. Any party wishing to appear by telephone must advise the Court at least two business days prior to the appearance.
3. The party first requesting to appear by telephone is responsible for setting up the telephone conference, coordinating with the Division Clerk, and joining to the telephone conference all other parties also attending by telephone.
4. The Commercial Docket judge will also consider permitting web conferencing for an appearance. However, the parties are responsible for testing and confirming the functioning of the technology to be used ahead of time and addressing by stipulation the lack of a record of what appears on the computer screen.
F. The Commercial Docket judges will work with the Clerk of Court to make docket information available to the public on-line when feasible.
G. One purpose of the Commercial Docket is to promote uniformity and predictability of decision. To serve this goal, the Commercial Docket judges shall:
1. Permit citation to prior decisions of the Commercial Docket as informative precedent. A party citing a prior Commercial Docket decision shall provide to the judge a copy of the order being cited.
2. Work with the Clerk of Court to make orders issued by the Commercial Docket available for parties wishing to research them when technologically and financially feasible. Parties should note that File & Serve has crude and limited search capabilities to locate orders issued by a given judge.