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. COLORADO BAR ASSOCIATION DENVER BAR ASSOCIATION

00 Front Matter and TOC_Layout 1 12/13/2011 12:37 PM Page ii COLORADO COURTROOM HANDBOOK for CIVIL TRIALS 2012 EDITION ISBN: 978-1-930993-49-5 Published by: CONTINUING LEGAL EDUCATION IN COLORADO, INC. 1900 Grant Street, Suite 300 Denver, Colorado 80203 Phone: (303) 860-0608 Toll-free: (888) 860-2531 Fax: (303) 860-0624 E-mail: clebooks@cobar.org Website: www.cobar.org/cle Dawn M. McKnight, Esq. Assistant Executive Director/ Publications Director Colorado Bar Association CLE Ellen Buckley Legal 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 2007 2012 by Continuing Legal Education in Colorado, Inc. All Rights Reserved.

00 Front Matter and TOC_Layout 1 12/13/2011 12:37 PM Page ix ABOUT THE MANAGING EDITOR Victoria C. Swanson, Esq. Sears & Swanson, P.C. 2 N. Cascade Ave., Ste. 1250 Colorado Springs, CO 80903 (719) 471-1984 www.searsswanson.com 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 1994. 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

00 Front Matter and TOC_Layout 1 12/13/2011 12:37 PM Page x

00 Front Matter and TOC_Layout 1 12/13/2011 12:37 PM Page xi ABOUT THE AUTHORS Bennett S. Aisenberg, Esq. The Law Offices of Bennett S. Aisenberg, P.C. 1600 Broadway, Ste. 2350 Denver, CO 80202 (303) 861-2500 aisenberg@mindspring.com 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 1986. 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 80209 (303) 333-1957 www.giomettilaw.com 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

00 Front Matter and TOC_Layout 1 12/13/2011 12:37 PM Page xii 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. 1113 Spruce St., Ste. 205 Boulder, CO 80302 (303) 381-2560 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 1988-1989, co-chair of the Boulder County Bar Association Alternative Dispute Resolution Committee in 2007 to 2009, president of the Colorado Trial Lawyers Association in 2001-2002, and president of the Boulder County Bar Foundation in 2004-2005. He served as a vice president of the Colorado Bar Association in 1996-1997. 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 2008. 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

00 Front Matter and TOC_Layout 1 12/13/2011 12:37 PM Page xiii About the Authors Andrew J. Felser, Esq. Andrew J. Felser, P.C. 501 S. Cherry St., Ste. 1060 Denver, CO 80246-1306 (720) 941-1600 www.felserpc.com afelser@felserpc.com 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 2007. He served as president of the Jewish Business Association of Colorado from 1997 to 1998. Gregory R. Giometti, Esq. Gregory R. Giometti & Associates 50 S. Steele St., Ste. 480 Denver, CO 80209 (303) 333-1957 www.giomettilaw.com 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 1982. 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

00 Front Matter and TOC_Layout 1 12/13/2011 12:37 PM Page xiv 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 555 17th St., Ste. 3200 Denver, CO 80202-3979 (303) 295-8099 www.hollandhart.com 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

00 Front Matter and TOC_Layout 1 12/13/2011 12:37 PM Page xv About the Authors John W. Grund, Esq. Grund Dagner, P.C. 1660 Lincoln St., Ste. 2800 Denver, CO 80264-2801 (303) 830-7770 www.gdnlaw.net jwgrund@gdnlaw.net 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

00 Front Matter and TOC_Layout 1 12/13/2011 12:37 PM Page xvi Colorado Courtroom Handbook H. Paul Himes, Jr., Esq. The Law Offices of Bennett S. Aisenberg, P.C. 1600 Broadway, Ste. 2350 Denver, CO 80202 (303) 861-2500 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 1977. David Hughes, Esq. Boulder County Attorney s Office P.O. Box 471 Boulder, CO 80306 (303) 441-3190 www.bouldercounty.org 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

00 Front Matter and TOC_Layout 1 12/13/2011 12:37 PM Page xvii About the Authors George Koons III, Esq. Kutak Rock LLP 1801 California St., Ste. 3100 Denver, CO 80202 (303) 292-7742 www.kutakrock.com George.Koons@KutakRock.com 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 80202 (303) 572-9300 www.polsinelli.com 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