Courts Learning from One Another: Colorado and Texas

Two recent events have us reflecting on the reasons why it is important to collect and share data. At IAALS, we have concluded our final study of Colorado’s Simplified Procedure (Rule 16.1), which was enacted in 2004. In Texas, the Supreme Court has newly adopted a Rule for Expedited Actions (Rule 169). Both rules intend to provide a shorter, less expensive process for smaller cases. They also have aspects similar to various short, summary, and expedited civil action programs in place around the country.

The goals for the Texas procedure are generally the same as the goals for the Colorado procedure—to foster prompt, efficient, and cost-effective resolution of civil cases by lowering discovery costs and expediting case processing. In 2004, Colorado rulemakers determined that Rule 16.1 would apply to cases with $100,000 or less in controversy between any two parties. In 2012, Texas rulemakers acted under a legislative directive to adopt rules for cases in which the entire amount in controversy does not exceed $100,000.

One important difference is that, for applicable cases, the Colorado procedure is voluntary while the Texas procedure is mandatory. Our study in Colorado revealed that Rule 16.1 is most frequently used by creditors bringing suit against defaulting or self-represented defendants.  We found that attorneys were very likely to opt out of the process whenever there were real disputes. As a result, the procedure’s impact is quite limited and asymmetrical.  In short, the Rule is used infrequently in contested cases and probably does not achieve its intended objectives.

Commendably, the Texas Task Force for Rules in Expedited Actions “relied on prior initiatives in other states with similar objectives, and on studies conducted both during and after the past legislative session by those interested in civil justice improvement.” Likewise, the Texas Supreme Court “carefully weighed . . . the experience of other jurisdictions.” We released the findings of the Rule 16.1 study at the IAALS Third Civil Justice Reform Summit in September. We would like to hope that our work informed the deliberations in Texas, and we hope that their rule will enjoy greater use and success. The ‘jury is still out’ on the benefits and detriments of the voluntary versus mandatory application of various processes, but we do know that the Rule 16.1 approach had very limited impact.

This is one example of how a court can learn from and build upon the experiences of other jurisdictions. But it can only happen with a concerted effort to collect and share evaluative information. To this end, the IAALS Rule One Initiative is actively tracking pilot projects and other rules activity around the country. To see what else is happening in the areas of implementation and measurement, click here.