Chapter 1 - § 1.1 COLORADO STATE PRETRIAL PRACTICE

• Jurisdiction: Colorado

§ 1.1 COLORADO STATE PRETRIAL PRACTICE

Colorado

Rule 16 of the Colorado Rules of Civil Procedure governs case management and pretrial practice. The "Responsible Attorney" is "plaintiff's counsel, if the plaintiff is represented by counsel, or if not, the defense counsel who first enters an appearance in the case." C.R.C.P. 16(b)(2).

➢ Timing for Trial Management Order. No later than 28 days before trial, the Responsible Attorney shall file a proposed Trial Management Order with the court. C.R.C.P. 16(f). The trial court shall enter the Trial Management Order in advance of the trial, and it will govern the proceedings during trial.

➢ Effect of Trial Management Order. The Trial Management Order is a critical document that binds the parties for the remainder of the case. C.R.C.P. 16(f)(5). Using the format dictated by C.R.C.P. 16(f)(3), counsel must detail the claims and defenses, stipulated facts, pretrial motions, identification of witnesses and exhibits, objections to witnesses and exhibits, the claims for damages or relief sought, as well as any other issue that requires the court's attention. Failure to detail a claim, even if articulated in the complaint, could result in being precluded from pursuing it or using it at trial. "Modification to or divergence from the Trial Management Order, whether prior to or during trial, shall be permitted upon a demonstration that the modification or divergence could not with reasonable diligence have been anticipated. In the event of any ambiguity in the Trial Management Order, the Court shall interpret the Order in the manner which best advances the interests of justice." C.R.C.P. 16(f)(5).

➢ Pro Se Party. If there is an unrepresented party, the Responsible Attorney shall file a Notice to Set Trial Management conference after disclosures have been served and discovery has closed. The Responsible Attorney shall submit the proposed Trial Management Order prior to the scheduled conference, typically seven days in advance of the Conference. A copy of the Trial Management Order shall be served on all parties.

➢ Pretrial Deadlines. The following is a complete list of Pretrial Deadlines:

Action	Days before Trial	Rule
C.R.C.P. 56 motions, including Motions for Summary Judgment	91 days	16(c)
CRE 702 motions, including Schreck Challenges	70 days	16(c)
Pretrial motions, including Motions in Limine	35 days	16(c)
Exchange of Witness List and Exhibit List	42 days	16(f)
Designation of Preservation Testimony	28 days	16(f)
Trial Management Order	28 days	16(f)

Action	Days before Trial	Rule
Service of Trial Subpoenas to Produce Documents	14 Days	45
Cross Designation of Preservation Testimony	14 Days	16(f)
Trial Briefs	14 Days	16(f)
Jury Instructions and Verdict Forms	7 Days	16(g)
Counter Designations of Preservation Testimony	7 Days	16(f)
Motions for Absentee Testimony	As soon as practicable	43
Deposition Designations with Objections	3 Days	16(f)
Trial Subpoenas for Trial Testimony	48 hrs before testimony	45
Trial Exhibits Delivered to Court	Day of Trial	16(f)

➢ Preparation of Trial Management Order. Lead counsel for each party is required to meet and confer to jointly develop a proposed Trial Management Order for submission to the court. C.R.C.P. 16(f)(2)(A).

➢ Meet & Confer Conferences. The Responsible Attorney is charged with scheduling all conferences between the parties regarding the Trial Management Order. The first such conference should occur 40 to 50 days before trial, or as directed by the court. The Responsible Attorney should utilize C.R.C.P. 16(f)(3), entitled "Form of Trial Management Order," to guide the discussion among the parties during these conferences.

➢ Form of Proposed Trial Management Order. The proposed Trial Management Order shall contain the following captions, along with stipulated and disputed content:

I. STATEMENT OF CLAIMS AND DEFENSES
II. STIPULATED FACTS
III. PRETRIAL MOTIONS
IV. TRIAL BRIEFS
V. ITEMIZATION OF DAMAGES OR OTHER RELIEF SOUGHT
VI. IDENTIFICATION OF WITNESSES AND EXHIBITS
VII. TRIAL EFFICIENCIES AND OTHER MATTERS

➢ Collaboration. The Responsible Attorney must take the lead on preparing the Trial Management Order. "To the extent possible, counsel shall agree to the contents of the proposed Trial Management Order." C.R.C.P. 16(f)(2)(C).

➢ Disputes. Any matter upon which all counsel cannot agree shall be designated as "disputed." C.R.C.P. 16(f)(2)(C) mandates that the parties provide a "specific alternative provision" for the disputed content.

➢ Witness and Exhibit Lists. No later than 42 days before the trial date, each counsel shall serve a draft of the lists of witnesses and exhibits. C.R.C.P. 16(f)(2)(B). Counsel should follow the form of the Exhibit and Witness List as directed or published by the judge that will preside over the case. These lists are typically available online or can be acquired by calling chambers.

➢ Witness List Contents. The final Witness List must contain "the name, address, telephone number, and the anticipated length of each witness' testimony, including cross examination." C.R.C.P. 16(f)(3)(VI)(A). Each witness must be designated as either a "will call" or a "may call" witness. Id.

• "Will Call" Designation. The party that designates a witness as "will call" need not actually call the witness at trial. However, the party that designates a witness as "will call" must "ensure that the witness will be available to testify at trial if called by any party without the necessity for any other party to subpoena the witness for the trial." C.R.C.P. 16(f)(3)(VI)(A).

• Expert Witnesses. The Witness List must also "indicate whether the opposing party accepts or challenges the qualifications of a witness to testify as an expert as to the opinions expressed. If there is a challenge, the list shall be accompanied by a resume setting forth the basis for the expertise of the challenged witness." C.R.C.P. 16(f)(3)(VI)(A).

➢ Exhibit List Contents. Exhibit Lists should be presented in tabular format with the columns for the exhibit designation, description, objections, stipulations, and whether the exhibit was ultimately admitted during trial. The Exhibit List shall list each exhibit, including any item of physical evidence, that the party intends to introduce at trial. The format of the exhibit list shall include the following:

• Designation. The plaintiff/petitioner shall "number" each exhibit and the defendant/respondent shall "letter" each exhibit.

• Description. Counsel shall provide a sufficiently detailed description of the exhibit to allow its identification. For documents, include a Bates range or deposition exhibit number used during discovery with the description of the exhibit to (1) ensure proper identification by the opposing side and (2) affirm that the exhibit was disclosed during discovery. These markers help to avoid objections based upon lack of disclosure during discovery.

• Excerpted Exhibits. Counsel must attach to the final Exhibit List any "proposed excerpted or highlighted exhibits." C.R.C.P. 16(f)(3)(VI)(B).

• Objections. Objections to admissibility or authenticity shall be noted along with a short articulation of the grounds for the objection. For additional information regarding motions in limine, see Chapter 2.

• Stipulations. The parties shall identify the exhibits for which the admission is stipulated.

➢ Contents of the Trial Management Order. C.R.C.P. 16(f)(3) dictates the form of the proposed Trial

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