Do I Have to Let the Other Side Know My Witnesses in My Divorce Case?
Yes. Disclosure of witnesses you may wish to testify in your final divorce hearing is required pursuant to Colorado Rules of Civil Procedure, Rule 16.2. Failure to properly disclose witnesses in a divorce case can lead to them being precluded from testifying for you at your hearing. Additionally, there are different steps and rules depending upon whether your witness is a lay witness or an expert. Given the various technicalities tied into disclosing witnesses, it’s best to consult with an experienced Colorado divorce attorney who can guide you through the process.
Rule 16.2 (e)(3) specifically indicates that witnesses must be disclosed 63 days prior to your final hearing. This includes both lay and expert witnesses and entails the filing of a formal disclosure statement, which will be filed with the court and provided to the other party. In terms of specific information, the rules require that the name, address, and phone number of any witnesses be provided. Additionally, a synopsis of what each witness might testify to is also required. This synopsis can be general and does not have lay out specific details.
When dealing with expert witnesses, C.R.C.P. 16.2 (e) and (g) also generally require that the other side be provided with the witness’ curriculum vitae or resume, a list of any publications or articles written by the witness, and a history of expert testimony they have provided in the last 5 years. With most experts, you will also be required to provide a copy of their written report or opinion 58 days prior to trial. Again, failure to adhere to any of these dictates can lead to your expert being precluded and the court potentially never seeing his or her report. In cases in which there is a court appointed expert, such as a Child and Family Investigator, the rules may be relaxed somewhat. Each judge is different in terms of how strictly he or she applies the rules.
If you are coming upon your disclosure deadline and have concerns about meeting it, you have the option to file a motion requesting an extension of time to do so. Generally courts will be open to granting brief extensions to meet compliance with witness disclosures, particularly when the delay in disclosing witnesses ties into obtaining an expert report. However, you should not take this as a given. If your witness deadline has already passed you should still go ahead with making proper disclosure. Likewise, you should still file a motion seeking that extension. The alternative for both parties and the court is to postpone the final divorce hearing to a later date such that witness rules can be complied with.
As you might imagine, failure to disclose witnesses can have a significant, negative impact on any divorce or custody case. Judges are bound by rules of evidence and procedure. When witnesses are precluded, the court might only get half of the facts or story needed to render a proper decision. The rules regarding witnesses apply to both sides and can also be used by to preclude the other party’s witnesses should they fail to comply. In most metropolitan area counties, witness disclosure are only required for your final hearing. However, in some counties, or when dealing with experts, the court may require disclosures be exchanged for temporary orders hearings as well. You should always refer the Case Management Order issued at the outset of your case to determine if your court has specific rules regarding witnesses.
If you find yourself coming upon that witness deadline and are in need of representation, contact the Denver divorce firm of Plog & Stein. At Plog & Stein, we understand the importance of following statutory and procedure rules, as well as the value of complete preparation for trial. Call us today at (303) 781-0322 to schedule your appointment.
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