24th Nov 24 10:00 pm
JamieExpert witness testimony can have an impact on many different types of cases. Complex divorces, especially the high net worth divorces involving high-earning spouses and complicated investments and questions regarding asset allocation that are common in large metro areas, can in many cases call for specialized knowledge to ensure that all involved understand the significance of the facts presented and to support the judge overseeing the case in reaching fair decisions on key questions such as alimony awards or the equitable distribution of marital property. Colorado’s Rules of Civil Procedure (C.R.C.P.) require all parties to a case to disclose the identity and qualifications of witnesses who may be called upon to present evidence that falls under Rules 702, 703, or 705 of the Colorado Rules of Evidence (C.R.E.). Navigating the complexities of comprehensive expert witness disclosures to maintain compliance with court requirements, and to provide timely responses to additional information requests during the discovery stage of divorce proceedings, can be a challenge. To discuss expert witness disclosures with an experienced family law attorney in the Denver area, call the Littleton office of Colorado Divorce Law Group at (720) 593-6442 and book your private consultation.
Witnesses are a common feature of many different types of legal cases. While witness testimony can play a dramatic role in criminal cases, the sworn testimony of witnesses can also help to establish important facts in various kinds of civil litigation – including divorce cases, which in Colorado are managed according to the Colorado Rules of Civil Procedure, subject to minor divergences of terminology specified under C.R.S. § 14-10-105. While Rule 701 of the Colorado Rules of Evidence prohibits most witnesses from giving their opinions regarding the information presented in court except under tightly limited circumstances, Rule 702 allows for the parties involved in a case – or their attorneys, if the parties are working with professional legal counsel – to call and question “expert witnesses” when specialized knowledge is needed in order to clarify one or more important point(s) to support the “trier of fact” (usually the judge presiding over the case) in making determinations essential to the outcome of the case.
If either party is considering calling or an expert witness, Rule 26 of the Colorado Rules of Civil Procedure requires that party to provide information to the opposing party, or to that party’s legal counsel, regarding the expert’s identity and credentials. The scope and nature of the information the party consulting the expert is required to provide in fulfillment of their disclosure obligations under Rule 26 may differ somewhat depending on whether the expert is retained or hired to provide his or her testimony as a matter of professional practice (i.e., “expert witness” is this person’s job description, as well as his or her role in the current case) vs. an individual who happens to possess specialized knowledge and recognized expertise with respect to subject matter that bears on facts in issue in the case.
C.R.C.P. 26 is modeled on, and substantially similar to, Rule 26 of the Federal Rules of Civil Procedure (FRCP). As the length of Cornell Law School’s Legal Information Institute (LII) entry on FRCP Rule 26 indicates, this rule is subject to a number of specifications in terms of when and how it is applied, and has similarly been the subject of extensive legal commentary. At its core, however, Rule 26 is about fairness, and establishing a formal framework and clearly articulated legal and professional obligation for each party to a proceeding to provide timely information to all other parties to the proceeding concerning sources of evidence and plans for their use.
While courtroom dramas frequently turn on dramatic “surprise” evidence whose introduction at the last moment shocks not only the jury, but the opposing counsel and even the judge presiding over the case, in actual Colorado courts such unheralded revelations would in many cases constitute violations of the “duty to disclose” described in Rule 26. Individuals who feel inclined to lament these strictures may perhaps find some comfort in the fact that, by their nature, the requirements apply to all sides equally, and so the same Rule 26 duty of disclosure that prevents one party from pulling a seemingly clever surprise in court will also, and for the same reasons, prevent that party from being on the receiving end of an unpleasant shock.
Rule 26 covers considerable ground related to the requirements for disclosures and pre-trial discovery. Only some of the provisions of Rule 26 will pertain to expert witnesses. Of note, however, is the fact that Rule 26 treats expert witnesses differently from ordinary witnesses and in fact dedicates a subsection of the rule to detailing expert witness disclosures. C.R.C.P. 26(a)(2)(A) specifies that if at any time any party to a legal proceeding before a Colorado court anticipates that they may present evidence at trial that is derived from a witness who lends his or her specialized knowledge as defined under the Colorado Rules of Evidence 702, 703, or 705, the party that may present this evidence at trial is obligated, without waiting for a discovery request, to disclose to all other parties to the proceeding:
C.R.C.P. 26(a)(2)(B) applies additional expert witness disclosure requirements, which are differentiated according to whether the expert providing testimony is one who is “retained or specially employed” for the purpose of giving such testimony (i.e., “expert witness” is the individual’s job description, as well as a role he or she may be asked to temporarily fill) vs. “other experts” (any witnesses whose specialized knowledge may enable them to give valuable expert testimony in a particular instance, but who do not habitually provide such testimony as an ordinary part of their professional activities).
For “retained experts,” as defined by C.R.C.P. 26(a)(2)(B)(I), any party who retains or anticipates calling such an expert is required to make their expert witness disclosure in the form of a written report that the expert witness has signed. The text of the rule prohibits parties from soliciting from expert witnesses, at trial, any opinions not covered in the disclosure, so it is important to ensure that the deposition process is thorough and that the signed expert witness report distributed to all parties is both comprehensive and accurate.
Any argument is susceptible to counterargument. This does not mean that the facts do not matter; one of the most frustrating aspects of many divorce cases is that there are facts available to support either party’s position on almost any given issue, and there are also likely to be facts either party can cite to explain why they think the court should rule in their favor. If the position you wish to argue before the court is thinly supported by facts, while the position taken by your ex aligns with a robust portfolio of evidence, it may be time to re-evaluate whether your expectations for case outcomes are realistic, or if there is a better way to achieve your core goals for the case. In this instance it may be a good idea to review your situation with an attorney from Colorado Divorce Law Group experienced in managing highly complex divorce scenarios to discuss your legal options.
Rule 26 functions to make sure that all parties are working from the same set of facts as each side prepares its case. An argument that is bolstered by the preponderance of evidence will usually be easier to build than one that has little factual basis. Generally speaking, those facts are likely to make their appearance in court at some point, whether either party wishes to disclose them or not. When all parties to a case fulfill their “duty of disclosure” pursuant to Rule 26, each side has an opportunity to evaluate the relative strengths and weaknesses of their own position on each issue in the case, as well as the position adopted by the opposing party.
If you are contemplating a divorce in Colorado, and especially if there is reason to believe the case may involve complicated questions such as disputes over the nature and allocation of assets, you may consider the services of an expert witness. The expert witness disclosure requirements under C.R.C.P. Rule 26 can be complex, and often lead to questions. Consider scheduling a consultation with an experienced divorce attorney at Colorado Divorce Law Group to discuss your situation and get perspective on your legal options. Residents of the greater Denver area can reach our team at (720) 593-6442 to find a time.
