COURTROOM HANDBOOK for CIVIL TRIALS

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1 COLORADO COURTROOM HANDBOOK for CIVIL TRIALS SECOND EDITION VICTORIA C. SWANSON, ESQ. Managing Editor Supplemented October 2008 February 2010 November 2011 CONTINUING LEGAL EDUCATION IN COLORADO, INC. COLORADO BAR ASSOCIATION DENVER BAR ASSOCIATION 2011

2 COLORADO COURTROOM HANDBOOK for CIVIL TRIALS SECOND EDITION ISBN: Published by: CONTINUING LEGAL EDUCATION IN COLORADO, INC Grant Street, Suite 300 Denver, Colorado Phone: (303) Toll-free: (888) Fax: (303) Website: Dawn M. McKnight, Esq. Assistant Executive Director/ Publications Director Colorado Bar Association CLE Ellen Buckley Managing Editor Colorado Bar Association CLE Lisa C. Travis Fischer, J.D. Acquisitions Editor/Manager Colorado Bar Association CLE COLORADO BAR ASSOCIATION CLE CLE in Colorado, Inc. is the nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association Continuing Legal Education in Colorado, Inc. (CBA-CLE) publications are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Nothing contained in this book is legal advice or other professional advice. Readers are responsible for obtaining advice from their own lawyers or other professional. Publications are distributed with the understanding that CBA-CLE does not render any legal, accounting, or other professional service. The contents of this book do not necessarily reflect the views of the Internal Revenue Service or any other regulating governmental entity. The material in this book represents the opinions and views of the authors, and should not be construed as the views of any of the authors law firms or of Continuing Legal Education in Colorado, Inc. The proper interpretation or application of the material in the book is a matter for the considered judgment of the individual legal practitioner, and CBA-CLE disclaims all liability therefor. As with any legal textbook or other secondary authority, attorneys dealing with specific legal matters should also fully research current, primary authorities. Copyright by Continuing Legal Education in Colorado, Inc. All Rights Reserved.

3 PUBLISHER S NOTE The Colorado Bar Association CLE (CBA-CLE) is pleased to present the 2011 supplement to the Colorado Courtroom Handbook for Civil Trials, Second Edition. With this supplement, this edition is updated to incorporate the latest cases, rule changes, jury instructions, and legislation, in both state and federal courts. It is the product of hundreds of hours of work by the managing editor, Victoria C. Swanson, former president of the Colorado Trial Lawyers Association, and the chapter authors, many of whom have been recognized by their colleagues as some of the top trial lawyers in Colorado. Rather than an in-depth treatise, the Handbook provides a concise and easy-toread reference for use at counsel s table in a civil trial. Its formatting, indexing, and tabulation were designed to provide trial counsel and judges with fast and accurate citations on both procedural matters and evidentiary issues. No amount of thanks could sufficiently express our gratitude and indebtedness to our volunteer managing editor, Victoria Swanson, for her dedication to the integrity of this handbook. Perhaps she, more than anyone, knows that the usefulness of the handbook to Colorado trial lawyers depends upon the accuracy and timeliness of the information contained in it, and we encourage you to contact either Victoria or me with your comments and suggestions. Dawn M. McKnight, Esq. Assistant Executive Director/ Publications Director Colorado Bar Association CLE November 2011 iii

4 COLORADO BAR ASSOCIATION CLE Colorado Bar Association CLE (CBA-CLE) is the nonprofit educational arm of the Colorado and Denver bar associations. We strive to produce high-quality CLE programs and legal publications at competitive prices, with substantial member discounts. However, we are also financially independent from the bar associations and self-supporting. We receive no membership dues or other unearned revenue from the CBA or DBA. Nearly all of our income derives from program registration fees and from sales of books, audio and video homestudy courses, and course manuals. Every year, hundreds of Colorado lawyers and judges volunteer their time and expertise to help us produce these educational resources for our members. Without this generous contribution of talent, CBA-CLE could not fulfill its mission. CBA-CLE Board of Directors July 2011 to June 2012 Denver Bar Association Appointments Colorado Bar Association Appointments Richard I. Zuber Barbara Blumenthal Robert A. Holmes Baird B. Brown Michael T. Mihm E. David Griffith J. Marcus Painter Honorable Terry Ruckriegle Kristin Rozansky Deanna L. Westfall Gregory James Smith Eugene Zuspann, II Charles C. Turner CBA-CLE Staff B. Gary Abrams Executive Director Evan Brown Manager of Media and Web Development Ellen Buckley, Esq Legal Editor Lisa M. Cordova Program Coordinator Mary Dilworth Marketing Manager Lisa C. Travis Fischer, J.D Acquisitions Editor/Manager Terri L. Fonseca Customer Service Priscilla S. Fulmer, Esq Program Attorney Susan Hoyt Legal Editor Darlene M. Johnson Legal Editor Lori L. Krupske Finance Manager Melissa J. Lucas Publications Assistant Deb Marnocha Desktop Publisher Dawn M. McKnight, Esq Assistant Executive Director Jo McWilliams Order Fulfillment/Shipping Ryan Morris Program Coordinator/Data Specialist Kathryn Noble, Esq Legal Editor Heidi A. Ray, Esq Program Attorney Julie Lynn Revers Program Administrator Adrian Romero-Sosa Technical Producer Monica Santillanes Marketing Assistant Nena Saucerman Media Specialist Kenneth Sudduth Customer Service Zachary A. Willis, Esq Legal Editor iv

5 ACKNOWLEDGMENT Production of the Colorado Courtroom Handbook for Civil Trials, Second Edition, required the editors to Shepardize the citations used in the book. This research was made possible by a generous contribution from the Colorado Bar Association CLE s technology partner, LEXIS-NEXIS. HOW TO CITE THIS BOOK As the first full citation, you may cite this book as: Colorado Courtroom Handbook, Second Ed. (Victoria C. Swanson ed., CLE in Colo., Inc. 2011). After the first full citation, you may cite this book as: Colorado Courtroom Handbook, supra n., at. v

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7 EDITOR S NOTE This book is for Colorado litigators in state and federal courts. Who among us has been in the heat of a trial and has not been faced with an issue a little issue, an obscure issue, an unusual request and we know, just know, that there was a case we once read that addressed that point, if only we could remember the name of the case...? Experienced litigators have their own trial law books, compiled over years of trial practice as a ready reference for just that occasion. Colorado Courtroom Handbook for Civil Trials gives every Colorado litigator a ready reference for issues that arise during trial. This book is a compilation of legal notes on litigation topics from some of the best and most experienced litigators in Colorado in an easy-to-read format for use at the counsel table in court. This is not a legal treatise. Indeed, legal scholars have written volumes on some issues that are addressed in the Handbook. Rather, this book provides the courtroom practitioner with answers that are needed right now, when the judge turns to the lawyer and asks, And what is your position on this matter? Effort has been made by the authors and the editor to search out and report the cases on courtroom issues. There is a clear bias toward civil, rather than criminal, trial issues in this Handbook. If an issue or case has been missed, the editor would be most grateful to learn of that point so that it may be included in the next supplement to this book. If, during courtroom use of this book, the practitioner has suggestions for improving its usefulness as a reference, the editor would be most grateful to learn of that, too. Thanks to all the busy trial lawyers who took time away from their clients and families to join us for the Second Edition so that all of us may be as prepared for trial as they are. Victoria C. Swanson, Esq. Sears & Swanson, P.C. Colorado Springs, Colorado November 2011 vii

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9 ABOUT THE MANAGING EDITOR Victoria C. Swanson, Esq. Sears & Swanson, P.C. 2 N. Cascade Ave., Ste Colorado Springs, CO (719) victoria@searsandswanson.com Chapter 2 Motions in Limine Chapter 4 Juror Misconduct During Trial Chapter 7 Expert Witnesses Chapter 16 Re-Opening the Case Chapter 20 Jury Deliberations Victoria C. Swanson is a 1975 graduate of the University of Detroit School of Law. She is a past president of the Colorado Trial Lawyers Association and is the recipient of the 2005 Kenneth Norman Kripke Lifetime Achievement Award from the Colorado Trial Lawyers Association. She has been a member of the Colorado Supreme Court Civil Jury Instruction Committee since 1987 and certified as a civil trial advocate by the National Board of Trial Advocacy since She is the author of Colorado Evidence Handbook (Bradford Publishing Co., 2005) and editor of Colorado Auto Litigators Handbook (CTLA, 1994, 2nd ed. 2006). She is a member of the American Association for Justice, having served as chair of its Aviation Section and Women s Caucus. She has been named one of the Colorado Super Lawyers since 2006 by 5280 Magazine. ix

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11 ABOUT THE AUTHORS Bennett S. Aisenberg, Esq. The Law Offices of Bennett S. Aisenberg, P.C Broadway, Ste Denver, CO (303) Chapter 14 Use of Depositions Bennett (Ben) S. Aisenberg practices law in Denver. He graduated from Brown University and received his law degree from Harvard Law School. He has served as a member of the Colorado Bar Association Ethics Committee since In 2003, he received the Denver Bar Association Award of Merit. He is a past president of the Colorado Bar Association, the Denver Bar Association, and the Colorado Trial Lawyers Association. Amanda M. Burke, Esq. Gregory R. Giometti & Associates 50 S. Steele St., Ste. 480 Denver, CO (303) aburke@giomettilaw.com Chapter 11 Documents, Things, and Demonstrative Evidence Ms. Burke entered private practice in 2008 as an associate with Gregory R. Giometti & Associates, after serving a year as a law clerk to the Honorable Christopher Munch of the First Judicial District of the State of Colorado. With the primary focus of her practice on civil litigation, Ms. Burke has handled a broad range of civil matters, including wrongful death cases, insurance bad faith claims, motor vehicle cases, defamation actions, medical malpractice cases, and insurance coverage issues. Ms. Burke was admitted to practice in Colorado in 2007, received her Juris Doctor from the University of Kansas School of Law in 2007, and received her Bachelor of Business Administration from the University of San Diego in 2003 (summa cum laude). While in law school, Ms. Burke served as an Articles Editor on the Kansas Journal of Law and xi

12 Colorado Courtroom Handbook Public Policy, and was an Intern in KU s Legal Aid Program, where she represented clients in both criminal and domestic matters. Ms. Burke also extended her studies internationally, spending a semester studying in Madrid, Spain, and studying principles of constitutional law under Justice Antonin Scalia of the United States Supreme Court in Istanbul, Turkey. In addition to her contribution to the Colorado Courtroom Handbook for Civil Trials, Ms. Burke also assisted Gregory R. Giometti with his recently published updates to Colorado Law of Insurance Bad Faith 3d ed. (CLE in Colo, Inc. 2009) and Colorado Handbook of Wrongful Death Law 2d ed. (CLE in Colo., Inc. Supp. 2010). James R. Christoph, Esq. James R. Christoph, P.C Spruce St., Ste. 205 Boulder, CO (303) christophlaw@comcast.net Chapter 3 Jury Selection James R. Christoph is a graduate of the University of Colorado School of Law. His practice emphasizes personal injury, premises liability, general civil and criminal litigation, and mediation and arbitration. Mr. Christoph served as president of the Boulder County Bar Association in , co-chair of the Boulder County Bar Association Alternative Dispute Resolution Committee in 2007 to 2009, president of the Colorado Trial Lawyers Association in , and president of the Boulder County Bar Foundation in He served as a vice president of the Colorado Bar Association in He is a fellow of the International Society of Barristers, the Colorado Bar Foundation, and the Boulder County Bar Foundation. He was a member of the Judicial Performance Commission for the 20th Judicial District from 2002 to 2009 and was co-chair of the Commission from 2004 to Mr. Christoph is the recipient of the Colorado Trial Lawyers Association s 2000 Case of the Year Award for his successful verdict in Rice v. Home Depot. He was named a Colorado Super Lawyer from 2007 to 2011 by 5280 Magazine in the Personal Injury category. He is a frequent author and speaker in the areas of trial advocacy, personal injury, civil litigation, mediation, and arbitration. xii

13 About the Authors Andrew J. Felser, Esq. Andrew J. Felser, P.C. 501 S. Cherry St., Ste Denver, CO (720) Chapter 13 Evidence Hearsay Andrew J. Felser is a graduate of the Georgetown University School of Foreign Service and the University of Maryland School of Law. He was a civil and criminal litigator in Maryland from 1982 to 1990, trying innumerable cases to judges and juries. After eluding SCUD missiles as a respite from litigation while on sabbatical in Israel during the Gulf War, he returned to Colorado, his boyhood home. He formed his solo practice in 1994 and most of the time can be found handling civil litigation, business, intellectual property, and real estate matters. He taught in the Lawyering Process Program at the University of Denver Sturm College of Law from 1998 until caught doing so in He served as president of the Jewish Business Association of Colorado from 1997 to Gregory R. Giometti, Esq. Gregory R. Giometti & Associates 50 S. Steele St., Ste. 480 Denver, CO (303) ggiometti@giomettilaw.com Chapter 11 Documents, Things, and Demonstrative Evidence Gregory Giometti graduated from the University of Oregon in 1979 with a bachelor s degree in history. He then attended the University of Idaho College of Law, obtaining his J.D. degree in 1982 and becoming licensed in Idaho in September After law school, he clerked for the Idaho Court of Appeals for a year and then began practicing with a Boise insurance defense firm, Quane, Smith, Howard and Hull. In October 1987, he was admitted to the bar in Colorado and began practicing law in Denver. For more than 24 years in Colorado, Mr. Giometti has concentrated his practice in the area of insurance defense litigation, but he also handles some plaintiffs cases, particularly wrongful death, probate, and health and disability insurance matters. xiii

14 Colorado Courtroom Handbook Since October 6, 2006, Mr. Giometti has practiced with his own firm in Denver, Gregory R. Giometti & Associates. He has conducted more than 58 civil jury trials in Colorado district courts and has also handled numerous appellate matters. He is one of Colorado s most experienced attorneys in handling insurance bad faith and wrongful death litigation. Since 1996, Mr. Giometti has authored numerous works for Continuing Legal Education in Colorado, Inc., the nonprofit educational arm of the Colorado Bar Association. Mr. Giometti s publications include Colorado Law of Insurance Bad Faith 3d ed. (CLE in Colo., Inc. 2009); Colorado Automobile Accident Litigation & Insurance Handbook (CLE in Colo., Inc. 2007); and Colorado Handbook of Wrongful Death Law 2d ed. (CLE in Colo., Inc. Supp. 2010). Gregory E. Goldberg, Esq. Holland & Hart, LLP th St., Ste Denver, CO (303) ggoldberg@hollandhart.com Chapter 23 Technology in the Courtroom As a partner in Holland & Hart s government investigations and litigation practice groups, Mr. Goldberg defends companies and individuals facing inquiries by the Department of Justice, grand juries, EPA, FBI, FDA, DOT, PHMSA, IRS, and other federal and state agencies. Specifically, Mr. Goldberg represents corporate clients following critical events such as an oil spill, allegations under the False Claims Act or Foreign Corrupt Practices Act, search warrant, workplace death, or financial improprieties. Mr. Goldberg previously served as the president of the Faculty of Federal Advocates and serves on the executive committee of the Hon. William Doyle Inn of Court. Prior to joining Holland & Hart, Mr. Goldberg served as an Assistant U.S. Attorney in the Department of Justice, where he coordinated federal grand jury investigations, and prosecuted federal crimes. He has tried more than 20 federal jury trials and several bench trials, many in technological or paperless format. Mr. Goldberg is a graduate of Dartmouth College and Columbia Law School, and served as a law clerk for Judge Paul J. Kelly, Jr. of the U.S. Court of Appeals for the Tenth Circuit. xiv

15 About the Authors John W. Grund, Esq. Grund Dagner, P.C Lincoln St., Ste Denver, CO (303) Chapter 5 Juror View of the Scene Chapter 6 Conduct of Trial Chapter 19 Jury Instructions John W. Grund is managing shareholder at Grund Dagner, P.C., in Denver. He is licensed in state and federal court in Colorado and Wyoming, and the Fifth, Sixth, and Tenth Circuit United States Courts of Appeal; and practices throughout the Rocky Mountain region, specializing in the defense of complex and multidistrict litigation and emphasizing product liability, recreation/ amusement liability, common-carrier and general aviation law, hospital liability, professional negligence, and insurance law. He was educated at Pomona College (B.A.), the University of Washington (M.A.), and the University of Colorado (J.D.). Before entering private practice, he served as law clerk to the Honorable Fred M. Winner, chief judge for U.S. District Court for the District of Colorado. Mr. Grund is an appointed member of the Colorado Supreme Court Committee on Civil Pattern Jury Instructions (since 1987) and chairs the subcommittee responsible for Product Liability, Professional Malpractice, and Insurance Bad Faith. He is coauthor of (and annually supplements) the four-volume Personal Injury Practice Torts and Insurance (West Group 2d ed. 2000); has authored the Torts chapter for CBA-CLE s Annual Survey of Colorado Law for many years; and has been a frequent presenter at legal seminars involving all aspects of tort liability and trial law. He also serves as an expert witness in the fields of insurance coverage, legal malpractice, and attorney-fee litigation. In 2001, the Colorado Defense Lawyers Association (CDLA) created the John W. Grund Excellence in Leadership Award, naming Mr. Grund as its first recipient. Mr. Grund has been peer selected annually since 2007 for the The Best Lawyers in America, in the Insurance Law Specialty, and for the Colorado SuperLawyers in the classification of Personal Injury Defense: General. xv

16 Colorado Courtroom Handbook H. Paul Himes, Jr., Esq. The Law Offices of Bennett S. Aisenberg, P.C Broadway, Ste Denver, CO (303) Chapter 14 Use of Depositions H. Paul Himes, Jr. is a graduate of the University of Denver and the University of Denver College of Law. He has practiced in Colorado since David Hughes, Esq. Boulder County Attorney s Office P.O. Box 471 Boulder, CO (303) dhughes@bouldercounty.org Chapter 8 Lay Witnesses Chapter 12 Evidence Testimony Chapter 15 Use of Pleadings and Discovery David Hughes is a deputy county attorney with the Boulder County Attorney s Office. He specializes in land use litigation and supervises the Land Use and Public Officials unit of the office. Before coming to Boulder, he was an assistant county attorney with the Jefferson County Attorney s Office. Mr. Hughes publication credits include articles in The Colorado Lawyer and the University of Colorado Law Review. He is an instructor for the Planning Institute of Colorado and has given presentations to the Colorado County Attorneys Association, the Colorado Municipal League, and the American Planning Association, among others. He received his law degree and B.A. from the University of Colorado. xvi

17 About the Authors George Koons III, Esq. Kutak Rock LLP 1801 California St., Ste Denver, CO (303) Chapter 18 Directed Verdict/Judgment as a Matter of Law George Koons is Of Counsel in Kutak Rock s Denver office and he works with clients on lender liability, automotive finance, creditor s rights, commercial litigation, and product liability claims. Mr. Koons is licensed in multiple jurisdictions and serves as lead counsel to major automotive financing companies on a regional basis defending them against consumer claims and enforcing their contracts. Mr. Koons also defends manufacturers of motor vehicles, consumer appliances, and other products against product liability and breach of warranty claims on a regional basis as their lead counsel. He received his J.D. from the Whittier College School of Law, where he was awarded the American Jurisprudence Award in Legal Writing. He graduated from the University of Northern Colorado in 1987 with a B.S. in business administration and marketing. Joseph J. Mellon, Esq. Polsinelli Shughart PC 1515 Wynkoop St., Ste. 600 Denver, CO (303) jmellon@polsinelli.com Chapter 1 Pre-Trial Chapter 21 Post-Trial Juror Communications Joseph J. Mellon is a trial lawyer with 35-plus years of experience trying cases and arguing appeals in state and federal courts in Colorado and throughout the country. He is licensed to practice law in Michigan and Colorado, and is currently a shareholder at Polsinelli Shughart, PC. He has participated as lead counsel in numerous civil jury trials at the state and federal levels, involving business litigation, construction litigation, class actions, professional liability, civil rights, and personal injury, achieving several multimillion dollar verdicts. Mr. Mellon is admitted to practice before the U.S. Supreme Court, the U.S. Court of Appeals for the Sixth and Tenth Circuits, the U.S. xvii

18 Colorado Courtroom Handbook Claims Court, the U.S. District Courts for the District of Colorado and the Eastern and Western Districts of Michigan, and all state courts in Michigan and Colorado, and has been admitted pro hac vice in state and federal courts throughout the country. He is a member of the State Bar of Michigan, the Colorado Bar Association, the Denver Bar Association, the American Association for Justice, the Colorado Trial Lawyers Association, the Faculty of Federal Advocates, and Minoru Yasui American Inn of Court. Mr. Mellon has taught seminars on police misconduct, construction litigation, and the Colorado Consumer Protection Act. Ross W. Pulkrabek, Esq. Jones & Keller, P.C Broadway, Ste Denver, CO (303) rpulkrabek@joneskeller.com Chapter 22 Post-Trial Motions and Issues Ross W. Pulkrabek is a shareholder at Jones & Keller, P.C. His practice emphasizes fraud and business litigation; commercial disputes; and professional liability cases, including legal malpractice, business broker malpractice, and real estate broker malpractice. Mr. Pulkrabek received his undergraduate degree from Johns Hopkins University and his law degree from the University of Colorado, where he was a notes and comments editor of the University of Colorado Law Review and a member of the Order of the Coif. Following graduation from law school, Mr. Pulkrabek clerked for Chief Justice Mary Mullarkey of the Colorado Supreme Court. He is a member of the Denver and Colorado bar associations and currently serves on the CBA Ethics Committee. xviii

19 About the Authors Jeffrey S. Roberts, Esq. Faegre & Benson LLP 1700 Lincoln St., Ste Denver, CO (303) Chapter 10 Evidence Relevance Jeff Roberts is a litigator in Faegre & Benson s Denver office. Jeff s practice focuses on representing national and local clients in legally and factually complex commercial cases, with a particular emphasis on antitrust and trade regulation. He received his J.D. from the University of Iowa in 2005 and his A.B. in history from Princeton University in Jon F. Sands, Esq. Sweetbaum Sands Anderson PC th St., Ste Denver, CO (303) jsands@sweetbaumsands.com Chapter 9 Opening Statements Mr. Sands received a B.S. from the University of Colorado (with honors) and a J.D. from the University of Colorado School of Law (1980). Mr. Sands practices in the firm s litigation department, specializing in insurance defense, bad faith defense, commercial and title insurance coverage, construction defect matters, title insurance defense, and real estate litigation. He has been lead trial counsel in numerous jury and bench trials throughout the state of Colorado, and also teaches courses on insurance law and trial presentation. He also has an extensive appellate practice. He is currently a member of the Colorado Bar Association s Litigation Section Council. Mr. Sands has published articles in The Colorado Lawyer. He has been selected for inclusion in The Best Lawyers in America for 2007 through 2011 for his excellent work in the insurance practice area. He is included in the U.S. News and World Report Best Lawyers editions for 2010 and He also has been selected for inclusion in Super Lawyers by Law and Politics magazine since its inception in 2006, indicating he is among the top 5 percent of attorneys, as voted by his peers. Mr. Sands has also been xix

20 Colorado Courtroom Handbook selected by his peers as one of the top 50 trial attorneys in Colorado for He is a frequent lecturer for continuing education courses involving insurance bad faith, real estate litigation, and general litigation. Mr. Sands is a past president of the board of directors of the Denver Dumb Friends League and is also past president of the board of trustees of the Animal Assistance Foundation, a $20 million foundation headquartered in Denver. He currently serves on the board of directors of the Colorado Humane Society. Robert A. Schuetze, Esq. Schuetze & Gordon LLP 1113 Spruce St., Ste. 202A Boulder, CO (303) bob@schuetze-gordon.com Chapter 17 Closing Argument Robert A. Schuetze is a 1976 graduate of the University of Denver School of Law. He is a past president of the Boulder County Bar Association and past senior vice president of the Colorado Bar Association. He is a past president of the Colorado Bar Foundation, and is past president of the Colorado Trial Lawyers Association and recipient of its 2007 Kenneth Norman Kripke Lifetime Achievement Award. Mr. Schuetze is the former chairman of the Railroad Law Section of the American Association for Justice and is a member of the American Board of Trial Advocates. His practice has focused on plaintiff representation in the areas of product liability, ski lift failures, aviation accidents, train disasters, and commercial torts. Mr. Schuetze is recognized for his excellence in personal injury law in the publication Best Lawyers in America. xx

21 About the Authors David W. Stark, Esq. Faegre & Benson, LLP 1700 Lincoln St., Ste Denver, CO (303) Chapter 10 Evidence Relevance David W. Stark is a trial lawyer practicing in the area of complex commercial litigation with emphasis in professional liability, energy, banking, securities fraud, intellectual property, and probate and trust. He is a partner with Faegre & Benson, LLP. After receiving his B.A. from the University of Colorado, Mr. Stark attended the University of Colorado School of Law, graduating in He was employed as a chief deputy district attorney in the Denver District Attorney s Office, serving from 1973 to He was an adjunct professor at the University of Denver College of Law. Mr. Stark has lectured at numerous continuing legal education seminars regarding trial advocacy and other litigation topics, and served as a member of the Board of Governors of the Colorado Bar Association and the Colorado Bar Association Ethics Committee. He also served as the chair of the Colorado Supreme Court Attorney Regulation Committee from 1996 through 2001 and currently is the chair of the Colorado Supreme Court Attorney Regulation Advisory Committee. He has served as a member of the Colorado Supreme Court Standing Committee on the Rules of Professional Conduct since He has successfully tried numerous jury and bench trials in federal and state court, and has also handled an extensive number of appeals through briefing and oral argument. xxi

22 Colorado Courtroom Handbook Elizabeth A. Starrs, Esq. Starrs Mihm LLP th St., Ste Denver, CO Chapter 22 Post-Trial Motions and Issues Elizabeth A. Starrs is a principal of Starrs Mihm LLP, a boutique litigation firm in Denver, Colorado. In her 31 years of practice, Ms. Starrs has extensive trial experience in cases involving business fraud, real estate litigation, malpractice, and employment. Ms. Starrs is a past president of the Colorado Bar Association ( ). She is active in the Denver Bar Association, having served on its Board of Trustees in and as president in Ms. Starrs has also held leadership positions in the Colorado Women s Bar Association. Ms. Starrs was elected to the American College of Trial Lawyers and was the first woman from Colorado to be inducted into the International Academy of Trial Lawyers. She is also a past president of the Colorado Chapter of the American Board of Trial Advocates, an invitation-only organization of trial lawyers committed to preserving jury trials in civil cases. Ms. Starrs received her undergraduate degree from the University of Michigan and her J.D. from Suffolk University Law School. She is a member of the Massachusetts and Colorado bar associations, the U.S. District Court (D. Mass. and D. Colo.), the U.S. Court of Appeals (First Circuit and Tenth Circuit), and the U.S. Supreme Court. Ms. Starrs limits her practice to complex civil litigation, mediation, and arbitration. xxii

23 TABLE OF CONTENTS Chapter 1 PRE-TRIAL Colorado State Pre-Trial Practice Colorado Federal District Court Practice EXHIBIT Exhibit 1A C.R.C.P Discussion Chapter 2 MOTIONS IN LIMINE Timing Purpose Grounds For Granting Grounds For Denying Effect Preservation For Appellate Review Appellate Review Miscellaneous Chapter 3 JURY SELECTION Right To Jury Trial Statutory Requirements For Jury Service Excuse From Service Jury Questionnaires Challenges For Cause Peremptory Challenges Use Of Alternate Jurors Voir Dire Errors In Voir Dire Effect Of Impanelment Chapter 4 JUROR MISCONDUCT DURING TRIAL Juror Misconduct Resulting In Mistrial Juror Misconduct Resulting In New Trial Specific Issues xxiii

24 Colorado Courtroom Handbook Chapter 5 JUROR VIEW OF THE SCENE Discretion Of The Court Conduct Of View Chapter 6 CONDUCT OF TRIAL Exclusion Of Witnesses Juror Notes Juror Questions Judge Questions Judge As Witness Judge Disqualification Judicial Notice Motions For Mistrial Availability Of Witnesses Experiments And Demonstrations Day-In-The-Life Films Time/Witness Limitations Direct Examination Cross-Examination Redirect And Recross-Examination Rebuttal And Sur-Rebuttal Reopening The Case In Chief Chapter 7 EXPERT WITNESSES General Overview Foundation For Admissibility Generally Standard For Admissibility Basis Of Opinion Basis Of Opinion: Assumptions Basis Of Opinion: Hearsay Hypothetical Questions Disqualification Of Expert Specific Issues Medical Opinion And Testimony Specific Kinds Of Expert Testimony xxiv

25 Table of Contents Reliance On Other Experts Reliance On Extrinsic Evidence Special Issues Voir Dire Offered Area Of Expertise Scope Of Testimony Cross-Examination Payment Expert Disclosures Chapter 8 LAY WITNESSES Pre-Trial Disclosure Subpoenas Competency Lay Opinion Testimony Payment Chapter 9 OPENING STATEMENTS General Limitations Objections Effect Of Opening Statement Chapter 10 EVIDENCE RELEVANCE Standard Of Relevance Circumstantial Evidence Impeachment Collateral Source Use Of A Negative Polygraph Evidence Prior Physical Or Mental Condition Remarriage In A Wrongful Death Case Hypnosis Prior Criminal Convictions Character Evidence Habit; Routine Practice Subsequent Remedial Measures xxv

26 Colorado Courtroom Handbook Offers To Compromise Payment Of Medical And Similar Expenses/Apologies Criminal Plea/Conviction Insurance Evidence Precluded By Statute Prior Accidents And Injuries Chapter 11 DOCUMENTS, THINGS, AND DEMONSTRATIVE EVIDENCE Authentication Original Of Documents Summaries Of Documents Tangible Evidence: Chain Of Custody Photographs And Videotapes Handwriting Demonstrative Evidence Chapter 12 EVIDENCE TESTIMONY Rules Of Competency Impeachment Refreshing Recollection Privilege Interpreters Chapter 13 EVIDENCE HEARSAY The Hearsay Rule What Is Hearsay: Definitions What Is Not Hearsay Statements Offered Other Than For Their Truth Or Falsity Prior Statements Of A Witness Admissions By A Party Opponent Conspiratorial Statements Exceptions To Hearsay: Availability Of Declarant Immaterial Present Sense Impression Excited Utterance Then-Existing Mental, Emotional, Or Physical Condition Statements For Purposes Of Medical Diagnosis Or Treatment xxvi

27 Table of Contents Recorded Recollection Records Of Regularly Conducted Activity Absence Of Entry In Business Records Public Records And Reports Records Of Vital Statistics Absence Of Public Record Or Entry Records Of Religious Organizations Marriage, Baptismal, And Similar Certificates Family Records Records Of Documents Affecting An Interest In Property Statements In Documents Affecting An Interest In Property Ancient Documents Market Reports Learned Treatises Reputation Concerning Personal Or Family History Reputation Concerning Boundaries Or General History Reputation As To Character Judgment Of Previous Conviction Judgment As To Personal, Family, Or General History Or Boundaries Exceptions To Hearsay: Declarant Unavailable Former Testimony Statement Under Belief Of Impending Death Statement Against Interest Statement Of Personal Or Family History Forfeiture, By Wrongdoing, Of Right To Oppose Admission Of Declarant s Statement (Federal Rule Only) Residual Hearsay Exception Hearsay Within Hearsay Attacking And Supporting Declarant s Credibility Chapter 14 USE OF DEPOSITIONS Against Adverse Party Unavailable Witness Objections Impeachment Trial Preservation Depositions xxvii

28 Colorado Courtroom Handbook 14.6 Video Depositions Errors And Irregularities Chapter 15 USE OF PLEADINGS AND DISCOVERY General Pleadings Answers To Discovery Pleadings In Other Cases Chapter 16 RE-OPENING THE CASE Discretionary Relief Specific Issues Chapter 17 CLOSING ARGUMENT Discretion Of Court Arguing Evidence And Inferences/Speculation Counsel s Testifying Personal Belief Appealing To Passion And Prejudice/Inflammatory Attacks On Adverse Attorney The Golden Rule Argument Use Of Trial Transcript Use Of Exhibits And Demonstrative Evidence Objections Curative Instructions Invited Argument/Comment/Rebuttal Statement About The Law Binding Effect Of Admissions In Closing Per Diem Pain And Suffering Timing Of Closing In Relation To Court Instructing The Jury Chapter 18 DIRECTED VERDICT/JUDGMENT AS A MATTER OF LAW Time To Make The Motion Standard For Deciding Motion For Directed Verdict/Judgment As A Matter Of Law Criminal Trials xxviii

29 Table of Contents Chapter 19 JURY INSTRUCTIONS Pretrial Exchange Of Instructions Standard Jury Instructions Specialized Instructions Form Of Submitting Instructions Evidence To Support Instruction Instructions To Jury Before Or After Closing Arguments Copies Of Instructions To Jury Objections To Instructions General And Special Verdicts Allen Instruction (Deadlocked Jury) Chapter 20 JURY DELIBERATIONS General Overview Special Issues Sequestration Requirements What Is Allowed In The Jury Room Reading Back Of Testimony Additional Instructions Answering Questions Deadlocked Jury Sealed Verdict Polling The Jury Mistakes In The Verdict Objections To Form Of The Verdict Amending The Verdict As To Form Inconsistent Verdict Loss Of Juror During Deliberations Juror Misconduct In Reaching Verdict Chapter 21 POST-TRIAL JUROR COMMUNICATIONS Permissible Communications Confusion Of Jury Verdict Impeachment Of Verdict xxix

30 Colorado Courtroom Handbook Chapter 22 POST-TRIAL MOTIONS AND ISSUES Entry Of Judgment Taxed Costs Offer Of Settlement Motions For Post-Trial Relief Relief From Judgment Or Order Stay Of Judgment Of Proceedings EXHIBIT Exhibit 22A Items Included As Costs Under C.R.S Chapter 23 TECHNOLOGY IN THE COURTROOM Introduction Courtroom Technology Equipment The Three Audiences Of Any Courtroom Technology Presentation The Do s And Don ts Of Courtroom Technology Conclusion EXHIBITS Exhibit 23A Article, Practice Standards Civil And Criminal Cases Exhibit 23B Article, Courtroom Technology Manual For Attorneys In The Alfred A. Arraj United States Courthouse Exhibit 23C Article, Technical Specifications For Submission Of Judge s Electronic Copies Of Trial Exhibits SUBJECT INDEX xxx

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COURTROOM HANDBOOK for CIVIL TRIALS

COURTROOM HANDBOOK for CIVIL TRIALS 00 Front Matter and TOC_Layout 1 12/13/2011 12:37 PM Page i COLORADO COURTROOM HANDBOOK for CIVIL TRIALS 2012 EDITION VICTORIA C. SWANSON, ESQ. Managing Editor CONTINUING LEGAL EDUCATION IN COLORADO, INC.

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