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Witness Deadlines and Your Divorce or Custody Hearing

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In Colorado, most procedural issues regarding litigation of a divorce or custody case are set forth in Colorado Rules of Civil Procedure Rule 16.2. This rule, in essence, sets forth procedure from start to finish of a family law case. Though we see most cases settle without ever having to go to a final, witnesses-on-the-stand, hearing, not all cases settle. As such, once a hearing is set, we make sure not only to mark the hearing date on our calendar(s), but to also mark down any relevant deadlines.

Sadly, not all litigants in a divorce or custody case are aware of the deadlines. Not all attorneys adhere to them either, at their own risk and to the risk of their clients. Specifically, I am referring to various deadlines related to the disclosure of witnesses or compelling a witness to testify. As family law attorneys in Denver, we know the importance of these deadlines. Missing your witness deadline may leave you precluded from having witnesses you may want to testify able to do so. Failing to get a subpoena issued in time may leave you unable to force testimony from unwilling third party.

Pursuant to C.R.C.P. 16.2(e)(3), lay and expert witnesses whom a party intends to call for a final hearing must be disclosed, in writing, to the other side no later than 60 days prior to that hearing. This disclosure includes the potential witness’ name, address, phone number, and a sentence or two concerning the general content of their testimony. For expert witnesses, a copy of any report or written opinion and their resume or cirriculum vitae (fancy term for a more detailed professional resume) must also be provided. Additionally, a list of publications in the last 10 years and cases testified in over the last 4 years must also be provided. Failure to provide this information may, again, preclude your witness from testifying.

It is not uncommon for there to be joint experts in Colorado divorce or custody cases, such as Child and Family Investigators or home appraisers. As such, the strict requirements may not always be applied. However, one should always assume they will be held to the rules. It is not uncommon for people to call us less than 60 days prior to their hearings seeking our services. It is also not uncommon to see people who have not used an attorney up to that point having blown the 60 day deadline. As the Denver metropolitan area has many different courts, and many different judges, the rules are not applied the same in each court. Some judges may be more relaxed about witness disclosures, or suggest to the other side that if they object based on a blown deadline, the court will just re-set the matter for a later date. Other judges will hold a party’s feet to the proverbial fire and preclude improperly declared witnesses from testifying. This can potentially make or break a case.

Parties to a Denver divorce or custody case must keep in mind that the rule applies to both lay and expert witnesses. They must also keep in mind that a lay witness, such as a neighbor, teacher, or friend, may have something just as valuable to say as an expert. Contrary to popular belief, you cannot just get an affidavit or written statement from a person and provide it to to the court. That would be inadmissible hearsay and would not come in.

Another factor to keep in mind is that it is better to be over inclusive than under inclusive when declaring your witnesses. Just because you have declared a witness does not mean you have to use that person. Whom you ultimately call to testify is your choice. Being over inclusive keeps your options open. You or your attorney can then whittle down the list as you get closer to hearing.

The second important topic for this posting concerns witnesses and subpoenas. A subpoena is a document personally served on a person, business entity, or ageny, requiring attendance at a court hearing for purposes of testimony or the providing of documents. A subpoena must be served at least 48 hours prior to the commencement of the hearing. A subpoena must also be accompanied by a check paying the witnesses a statutorilly prescribed amount for milegage and time. When calculating the timing of issuing a subpoena, weekends and holidays do not count. For example, if your hearing is set for Thursday at 9:00 a.m., you must have the subpoena served by Tuesday at 9:00 a.m. However, if you hearing is set for Tuesday at 9:00 a.m., you must get that subpoena served by Friday at 9:00 a.m., as Saturday and Sunday do not count towards that 48 hours. Most people do not understand that they can compel testimony at a court hearing, or their deadlines and requirements for doing so. Pursuant to C.R.C.P. Rule 45 (the subpoena rule), a copy of any subpoena issued must also be provided to the other side in a timely fashion. Failure to do so could also cause you problems when it comes time for your expert to testify.

So the reader is clear, the rule regarding disclosure of witnesses relates to disclosing them to the other side, not necessarily the court. The idea is that disclosure of witnesses creates a fair hearing or prevents “trial by ambush.” As the benefit of disclosure flows among the parties, it is not uncommon for attorneys to agree to extend the deadline to a lesser amount of time, let’s say 30 days before hearing. Such an agreement to extend the deadline should always be put into writing, which can be as simple as confirming e-mails or letters.

An attorney handling a divorce, custody, or child support case in Colorado should know these things. Not all litigants do. It never hurts for a party to such a case to take a look at the rules. It never hurts for an attorney, from time to time, to brush up on them as well.