The Rules of Civil Procedure in Expert Witness Testimony in Colorado Divorce and Child Custody and Family Support Cases

It is often necessary to have expert witness testimony in Colorado Divorce, child custody and family support cases. In general, an expert witness may give an opinion while a lay witness can not give an opinion as to anything outside of his or her firsthand knowledge.

Expert testimony is governed also by the rules of civil procedure in addition to the rules of evidence. Expert testimony in domestic relations cases is governed primarily by (Colorado Rule of Civil Procedure) C.R.C.P. 16.2(g) and C.R.C.P. 26(a). The parties are expected to select one joint expert per issue, if possible. C.R.C.P. 16.2(g). If the parties can not agree, then the court can appoint a joint expert witness. C.R.C.P. 16.2(g). However, a party still retains the right to retain a qualified individual expert at that party’s initial expense, subject to later expense allocation between the parties, if appropriate. Yet, the court is not bound by expert conclusions and may accept or reject them. C.R.C.P. 16.2(g)(7). In domestic cases, the parties have disclosure obligations to the other party and a duty to cooperate with an expert if appointed by the court. C.R.C.P. 16.2(g)(4).

There are retained experts and non-retained experts. If an expert witness is hired specifically to testify at trial or hearing, that expert is a “retained expert.” C.R.C.P. 26(a)(2)(B). A retained expert is required to disclose specific information, including a written report. In general the retained expert’s report must include:

1. opinions and the basis;
2. a list of the information and documents considered;
3. references to any literature relied upon;
4. copies of any exhibits to be used;
5. expert qualifications;
6. a summary of fees paid to the expert;
7. a list of any other cases where the witness has testified as an expert. C.R.C.P. 26(a)(2)(B)(I).

Disclosure requirements differ for an expert witness who is not retained specifically to provide testimony. Such witnesses have a presumptive history of contact with the calling party prior to litigation. For both retained and non-retained experts, testimony is limited to matters disclosed in detail in the report or statement. C.R.C.P. 26(a)(2)(B)(II). Advance notice of expert opinions provide the ability of the other party to meaningfully respond, and to retain a rebuttal expert if desired. Under C.R.C.P. 26(a)(2)(B)(II), generally the disclosure obligations for non-retained experts require a written report or statement that includes:

1. a complete description of all opinions and the basis therefore;
2. witness qualifications; and
3. any exhibits to be used in support of the opinions.

There are disclosure requirements of the identification of expert witnesses and their reports. Expert witnesses must be disclosed to the other party 63 days prior to trial and a summary of testimony, to include provision of the expert report, no later than 56 days prior to trial. C.R.C.P. 16.2(g)(5). Because temporary and emergency hearings occur within earlier timelines, the court decides disclosure deadlines in those cases. C.R.C.P. 16.2(g). If a party fails to meet the disclosure deadline, expert testimony may be disallowed. C.R.C.P. 37(c)(1).

A party may attempt to rebut an expert witness report. Rebuttal expert witness reports must be provided 21 days after production of the expert witness report. The report should rebut the original report rather than providing a separate opinion. Rebuttal expert witness testimony must be relevant and useful to the trier of fact. CRE 404.

A knowledgeable and experienced divorce and family law attorney can guide you through Colorado Springs divorce and family law matters by negotiating, mediating and litigating. Give yourself the benefit of hiring one. This allows you to focus on moving on to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law is a knowledgeable and experienced attorney who protects your best interests and ensures that you are aware of your legal rights and obligations. Contact us at 719-344-5523 for a free 30-minute informational consultation or complete our online form.