Chapter 17 - § 17.2 • TYPES OF EXPERTS

• Jurisdiction: Colorado

§ 17.2 • TYPES OF EXPERTS

§ 17.2.1—Consulting Experts

In Gall ex rel. Gall v. Jamison, 44 P.3d 233 (Colo. 2002), the Colorado Supreme Court stated that C.R.C.P. 26(b)(4)(B) provides that an attorney may consult on a confidential basis with as many non-testifying experts as the attorney deems necessary to develop legal theories and to test their scientific viability. When the attorney does so, the attorney is "free to think dispassionately, reliably, and creatively both about the law and the evidence in the case and about which strategic approaches are likely to be in [his or her] client's best interests." Id. at 240 (quoting Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 392 (N.D.Cal.1991) (making this point under the pre-1993 Rules)).

A consultant hired to assist a lawyer in preparation for trial is an agent of the lawyer for the purposes of attorney-client privilege. However, it is important to realize that this is not an absolute bar to discovery. C.R.C.P. 26(b)(4)(B) also provides that a party may discover facts known or opinions held by a non-testifying expert "upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means."

§ 17.2.2—Testimonial Experts

A practitioner needs to ascertain what testimony not only is necessary but also is available to provide information to the court. If a testimonial expert is required, C.R.C.P. 16.2(g) should be consulted. It provides:

(g) Use of Experts. If the matter before the court requires the use of an expert or more than one expert, the parties shall attempt to select one expert per issue. If they are unable to agree, the court shall act in accordance with CRE 706, or other applicable rule or statute.

. . .
(3) Nothing in this rule limits the right of a party to retain a qualified expert at that party's expense, subject to judicial allocation if appropriate. The expert shall consider the report and documents or information used by the court appointed or jointly selected expert and any other documents provided by a party, and may testify at a hearing. Any additional documents or information provided to the expert shall be provided to the court appointed or jointly selected expert by the time the expert's report is submitted.

While the retention, disclosure, and compensation of an expert are governed by C.R.C.P. 16.2, the testimony of an expert witness to the court is governed by CRE 702,¹ which provides that a qualified expert may testify in the form of an opinion if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue. The initial inquiry will focus on whether the witness is competent to render an expert opinion on the subject in question and whether testimony will be helpful to the court. Salazar v. Am. Sterilizer Co., 5 P.3d 357, 366 (Colo. App. 2000).

Practice Pointer
Remember that C.R.C.P. 16.2 requires disclosure of all lay and expert witnesses. The attorney is not required to disclose consultants unless their

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