Examining Delay: Its Causes, Consequences, and Possible Solutions in the Colorado Court of Appeals Nicole L. Waters, Principal Court Research Consultant Shauna M. Strickland, Project Management Administrator National Center for State Courts March 2018 State appellate courts need to resolve cases in an impartial and timely manner. This article examines case-processing times in the Colorado Court of Appeals and what steps the court took to decrease case-processing times. Why Delay Matters The Model Time Standards for State Appellate Courts note that “the timely resolution of cases is probably the most widely accepted objective measure of court operations and is also, fairly or otherwise, a primary concern of the other branches of government and the public regarding the courts.” [1] While the consequences of delay are well known, they are best summarized by Hoffman and Mahoney, who posit that “in some ways, appellate delays are especially pernicious.” > Appellate delays prolong litigation and undermine the public interest in final resolution of litigants’ disputes. Parties on appeal remain enmeshed in the disputing process and are unable to get on with their lives and businesses. > Reversal of a trial court decision or remand for further proceedings extends a dispute even longer. The longer the appellate process takes, the more likely it is that witnesses will be unavailable, memories will fade, and evidence will be stale when the case is again before the trial court. > Appellate delays affect not only the parties to the case that is delayed but also the actions of others who are involved in cases that have similar facts and issues, contributing to uncertainty in law and in business and social relationships. > Lengthy appellate delays disregard well-documented public concern about court delay. When appellate courts cannot manage their business well, they contribute to a negative model of court processes and tend to undermine public trust in the legal system. [2] > In “Achieving Timely Resolution for Criminal Appeals in State Courts,” Waters and Genthon explore time to disposition in criminal appeals, drawing on data collected from the 143 state appellate courts with jurisdiction for criminal appeals resolved in 2010. They compare median time to disposition for all courts to the national model time standards for total case-processing time, as well as delve into the time elapsed between case-processing milestones. They concluded that “while appellate courts did not routinely meet the national model time standards, focusing on how each stage of an appellate case is handled can indicate where improvements can be made,” and called for additional research into the methods that appellate courts have employed to reduce delays. [3] This article discusses delay in the Colorado Court of Appeals, comparing time to disposition and introducing various innovations that the court has enacted to help reduce delay. The Colorado Court of Appeals Colorado has a two-tier appellate court structure, with a court of last resort (COLR) and an intermediate appellate court (IAC). The IAC, named the Colorado Court of Appeals, has 22 judges who sit in 3-member panels. The Court of Appeals has jurisdiction over appeals from the Colorado District Courts, Denver Probate Court, Denver Juvenile Court, and several state administrative boards and agencies. The court has mandatory jurisdiction for criminal appeals and had 989 criminal case filings in fiscal year 2017 (42 percent of the court’s 2,355 total filings). [4] The mission of the Colorado Court of Appeals is “to provide the citizens of Colorado with clear, impartial and timely resolution of appealed orders and judgments as provided by law.” [5] The Story One way to examine delay is to capture all appeals resolved in a particular year and inspect the time elapsed between key milestones leading up to the resolution of the appeals. This analysis compared the court’s criminal appeals resolved in 2010 to those resolved between July 2016 and June 2017. It is important to note that appeals disposed in any given year were initiated in various time frames and subjected to various policies and procedures in place over the lives of those appeals. Note: The placement of each square represents the start of the appeal. The color represents when the court resolved the appeal. The 75th percentile is a useful way to examine the duration of time at which point 75 percent of all appeals are resolved or reach a key milestone. There are three major case-processing stages in an appeal: record preparation, briefing, and decision making. The record preparation stage (the period from appeal initiation to completion of the record/transcript) was the longest in duration, and there was a decrease in elapsed time for appeals resolved in 2016/17. The briefing stage (the period from filing of the opening brief until oral argument or submission on the briefs) was somewhat longer for the more recent appeals. The decision-making stage was the shortest in duration, and there was, again, a decrease in elapsed time for more recently decided appeals. However, these three stages did not capture the full picture. What is missing is the time between the completion of the record or transcript and the date opening brief was filed (extensions prior to opening brief). At the 75th percentile, the elapsed time for this new stage was approximately 8 months longer in the recent appeals than in the appeals resolved in 2010. The reasons behind the requests for extensions could be related to the preparation of the brief or it could be related to the discovery of an incomplete/incorrect record. While the reasons for the extensions must be disentangled to propose targeted solutions to address the source of this delay, one policy implemented in 2011 aimed to reduce the number of 30-day extensions, but allowed for one more realistic extensions of time. At the 75th percentile, the time on appeal was approximately 2.5 years (906 days) for appeals disposed in 2010, compared to 3.2 years (1,176 days) for appeals disposed in 2016/17. What Solutions and Innovations Address Delay? To empirically answer this question, trends should be examined by when an appeal begins, not when it is resolved. This is because all appeals initiated after a new policy is implemented are subjected to those new requirements, making it possible to tease out the impact of various innovations. Between 2006 and 2015, an average of 443 direct criminal appeals were filed each year. The median overall elapsed time to disposition for these appeals dropped from 804 days to 426 days. The Model Time Standards for State Appellate Courts suggest that 75 percent (the 75th percentile) of appeals should be resolved within 450 days. [6] While the Colorado Court of Appeals did not meet the standard, it has drastically reduced the amount of elapsed time; 75 percent of appeals initiated in 2015 were resolved within 631 days. The Colorado Court of Appeals has employed several innovations over the last five to seven years to improve timeliness. Cost deduction policy—Targeting the record/transcript preparation stage, Chief Justice Directive 05-03 (see Appendix A) implemented a policy to reduce the per-page transcription rate for state-paid court reporters when deadlines were not met. The rate for a transcript, which would be billed at the ordinary rate if submitted on time, is 90 percent of that rate if submitted late 10 days or less, 75 percent if 11 to 30 days late, and 50 percent if more than 30 days late. E-filing in district court and digital transcripts—Colorado is rolling out e-filing in the district courts and streamlining the process for the Court of Appeals to receive transcripts and records. Videoconferencing for oral arguments—The Colorado Court of Appeals is currently conducting a pilot of videoconferencing for oral argument. It is anticipated that videoconferencing will reduce scheduling delays. Additional human resources—Between 2012 and 2014, the attorney general’s office and public defender’s office received legislative support to end staffing shortages and address their impact on delay. Reduction in oversized briefs—The court generally does not grant requests for oversized briefs (more than 9,500 words for appellant briefs or 5,700 words for reply briefs). Reduction in granting extensions—In 2011 the Colorado Court of Appeals requested that counsel file one realistic extension request, rather than multiple requests for 30 days. In 2014 the court began denying extensions over 365 days without exceptional circumstances; this is down from the 2011 policy for extensions of no more than 540 days. Additionally, a three-judge panel now considers any requests over 365 days. The number of granted extensions was reviewed as part of the above analysis. On average, the Colorado Court of Appeals granted 7 extensions per appeal for those resolved in 2010 compared to 5 granted extensions in 2016/17. Primarily, the extensions were for filing the opening brief (average of 4 in 2010 compared to 2.5 in 2016/17). Although the number of granted extensions has decreased as desired, the amount of time given for the extensions has resulted in an overall longer time on appeal. Conclusion Appellate courts across the country seeking to render timely decisions can look to the innovations employed by Colorado’s Court of Appeals. As with many appellate courts, the Colorado Court of Appeals’ mission is to provide clear, impartial, and timely resolution to its citizens. From the parties’ experience, the clock begins when the case is first filed with the trial court. This is long before the appeal is submitted to the appellate court judges for a decision. Therefore, efforts to address delay should apply to all stages of the appeal process.