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TCL > February 2002 Issue > Court Business

The Colorado Lawyer
February 2002
Vol. 31, No. 2 [Page  103]

© 2002 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Court Business

Court Business

Colorado Supreme Court Rules of Evidence Committee

C.R.E. Rules 701, 702, 703

Proposed Amendments to Article VII
Opinions and Expert Testimony
Written Comments Requested by
February 28, 2002, 5:00 p.m.

NOTICE

The Colorado Supreme Court will entertain written comments to the Proposed Amendments to: Rule 701. Opinion Testimony by Lay Witnesses; Rule 702. Testimony by Experts; Committee Comment on Amended Colorado Rule 702; and Rule 703. Bases of Opinion Testimony by Experts. Additions are underlined. An original and eight copies of written comments are to be submitted by 5:00 p.m., February 28, 2002, to: Mac V. Danford, Clerk of the Supreme Court, 2 E. 14th Ave., Denver, CO 80203-2115.

PROPOSED

Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness’ his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of his the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

PROPOSED

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

PROPOSED

Committee Comment on Amended Colorado Rule 702

Amended CRE 702 is identical to FRE 702 as the latter was amended in December 2000. This amendment to CRE 702 is not intended to change existing Colorado law as reflected in People v. Shreck, 22 P.3d 68 (Colo. 2001). Rather, the purpose of this amendment is to state expressly several requirements already found in Colorado law. The requirement of sufficient facts or data was implicit in the reliability criterion that was part of pre-amendment CRE 702, and also in CRE 703, stating that the facts or data must be "of a type reasonably relied upon" by experts in the field. The requirements of reliable principles and methods and reliable application of principles and methods were developed in Colorado cases over many years. See People v. Shreck, 22 P.3d 68 (Colo. 2001)(in determining admissibility of scientific evidence, courts should determine "reliability" of scientific principles, "qualifications" of the witness and "usefulness" of testimony); Brooks v. People, 975 P.2d 1105, 1113 (Colo. 1999) (to be admissible under FRE 702, specialized knowledge "remains subject to an inquiry regarding validity and reliability"); Schultz v. Wells, 13 P.3d 846, 850 (Colo.App. 2000) (courts determine "reliability and validity" of expert opinion under FRE 702).

Under Shreck, the trial judge applying CRE 702 must make specific preliminary findings. See CRE 104(a) (judge to determine preliminary questions concerning "the admissibility of evidence"). In performing this task, the trial judge should decide whether the principles and methods are reliable, whether the witness is qualified, and whether the proffered testimony is useful to the jury. The trial judge must also determine whether the probative value of the evidence is or is not substantially outweighed by the danger of unfair prejudice or confusion of issues under CRE 403.

PROPOSED

Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

 

Colorado Supreme Court Rules Committee
The Colorado Rules of Civil Procedure
Chapter 26. Colorado Rules of Procedure for Small Claims Courts
Appendix to Chapter 26
Corrective Order to Rule Change #2001(16)

Colorado Rule of Civil Procedure 504(b)(2)(H) currently reads: "Upon a school district, by delivering a copy thereof to the superintendant, an assistant superintendant . . . ." The misspelling of the word "superintendent" in the rule was a typographical error. Therefore, the word "superintendant" as misspelled in Rule 504(b)(2)(H) is hereby deleted and the word "superintendent" is substituted.

In JDF Form 250-Part 3, in the "INFORMATION FOR PLAINTIFFS IN SMALL CLAIMS CASES" section (appearing on page 5 of Part 3), the filing fee for claims of $500 or less reads: "$9.00 filing fee + $1.00 tax = $11.00." The listing of the total of $11.00 was a typographical error. Therefore, "$11.00" is hereby deleted and "$10.00" is substituted.

In JDF Form 250-Part 3, in the "INFORMATION FOR PLAINTIFFS IN SMALL CLAIMS CASES" section (appearing on page 5 of Part 3), the last sentence of subsection D currently reads: "Subpoenas must be accompanied by a check for payment of witness fess . . . ." The misspelling of the word "fees" in the form was a typographical error. Therefore, the word "fess" as misspelled in JDF Form 250-Part 3, subsection D is hereby deleted and the word "fees" is substituted.

In JDF Form 256, Notice of Representation by Attorney, the third to fourth lines of text under the text box read: "However, it is not required that Paintiff(s) be represented by an attorney." The misspelling of the word "plaintiff" in the form was a typographical error. Therefore, the word "Paintiff(s)" as misspelled in JDF Form 256 is hereby deleted and the word "Plaintiff(s)" is substituted.

Corrected on December 5, 2001, effective immediately.

By the Court:

Gregory J. Hobbs, Jr.

Justice, Colorado Supreme Court

 

Rule Change #2001(24)
The Colorado Rules of Civil Procedure
Chapter 20. Colorado Rules of Procedure Regarding Attorney Discipline and
Disability Proceedings, Colorado Attorneys’ Fund for Client Protection,
and Mandatory Continuing Legal Education and Judicial Education
Amended and Adopted
Rule 251.10. Investigation of Allegations

(a) [No Change]

(b) Procedures for Investigation.

(1) [No Change]

(2) Procurement of Evidence During Investigation. In the course of an investigation conducted pursuant to these Rules, the Investigator, acting pursuant to and in conformity with these Rules, shall have the power to administer oaths and affirmations.

In connection with an investigation of allegations made against an attorney, the Chair of the committee or the Regulation Counsel may issue subpoenas to compel the attendance of witnesses, including the attorney in question, and the production of pertinent books, papers, documents, or other evidence in proceedings before the Investigator. All such subpoenas shall be subject to the provisions of C.R.C.P. 45. Any challenge to the power to subpoena as exercised pursuant to this Rule shall be directed to the Presiding Disciplinary Judge.

Any person who fails or refuses to comply with a subpoena issued pursuant to this Rule may be cited for contempt of the Supreme Court.

Any person who knowingly obstructs the Regulation Counsel or the committee or any part thereof in the performance of their duties may be cited for contempt of the Supreme Court.

Any person having been duly sworn to testify who refuses to answer any proper question may be cited for contempt of the Supreme Court.

A contempt citation may be issued by the Supreme Court upon recommendation of the Presiding Disciplinary Judge. A copy of the recommendation, together with the findings of fact made by the Presiding Disciplinary Judge surrounding the contemptuous conduct, shall be filed with the Supreme Court. The Supreme Court shall then determine whether to impose contempt.

(3)-(4) [No Change]

Rule 251.16. Presiding Disciplinary Judge

(a) [No Change]

(b) [No Change]

(c) Powers and Duties of the Presiding Disciplinary Judge. The Presiding Disciplinary Judge shall be authorized and empowered to act in accordance with these Rules and to:

(1)-(7) [No Change]

(8) Preside over contempt proceedings initiated under these Rules and C.R.C.P. 107 when appropriate.

(d)-(e) [No Change]

Rule 251.19. Findings of Fact and Decision

(a) [No Change]

(b) Decisions of the Hearing Board. When it renders its decision, the Hearing Board shall:

(1)-(5) [NO CHANGE]

(6) Unless stayed, vacated, reversed, or otherwise modified by order of the Supreme Court, a final decision of the Hearing Board under paragraph (b)(5) of this Rule shall be considered for all purposes an order of the Supreme Court.

Amended and adopted by the Court, En Banc, December 13, 2001, effective January 1, 2002.

By the Court:

Rebecca Love Kourlis

Justice, Colorado Supreme Court

Michael L. Bender

Justice, Colorado Supreme Court

 

U.S. District Court, District of Colorado
In the Matter of Local Rules of Practice Administrative Order 2001-9
Order Concerning Service By Other Means, Including Electronic Means

The court finding it necessary for the orderly administration of justice that procedures concerning electronic service be established, hereby

ORDERS as follows:

SERVICE BY OTHER MEANS, INCLUDING

ELECTRONIC MEANS

A. Form and Content of Consent. A party’s consent to accept service by other means, including electronic means, as authorized by Fed. R. Civ. P. 5(b), shall be expressly stated and filed in writing with the clerk. The consent shall include:

1. the persons to whom service should be made,

2. the appropriate address or location for such service, such as the electronic mail address or facsimile number, and

3. the format to be used for attachments.

B. Duration of Consent. A party’s consent shall remain effective for all service authorized by Fed.R.Civ.P. 5 or Fed.R.Civ.P. 77(d) until expressly revoked or until the representation of a party changes through entry, withdrawal, or substitution of counsel.

C. Notice of change of electronic mail address or facsimile number. Within ten days after any change of electronic mail address or facsimile number of any attorney or pro se party that has consented to service by other means, including electronic means, notice of new electronic mail address or facsimile number shall be filed.

D. Certificate of Service. Where service is by electronic means, the e-mail address or facsimile number used shall be listed.

E. Effective Date. This Order is effective December 1, 2001.

Dated this 30th day of November 2001, at Denver, Colorado.

By the Court:

Lewis T. Babcock, Chief Judge

 

U.S. Bankruptcy Court, District of Colorado
Amended General Order 2001-1
In the Matter of Procedures for Fee Applications in Chapter 13

Following consideration of comments received regarding General Order 2001-1 (In the Matter of Procedures for Fee Applications in Chapter 13), the bankruptcy judges have decided that more information regarding fee allowance in Chapter 13 cases is necessary to determine whether the current procedure should be revised. Accordingly, by Amended Order 2001-1, the Court has extended the current procedure through December 31, 2002. Additionally, Amended General Order 2001-1 requires the Clerk to prepare an analysis of pertinent data with regard to fee allowance in Chapter 13 cases through June 30, 2002, for purposes of further consideration of the fee allowance procedure by the Court and members of the bar.

Amended General Order 2001-1 may be downoaded from the Court’s e-filing website at: http://ecf.cob.uscourts.gov. Copies may be picked up free of charge from the Clerk of the Bankruptcy Court, 721 19th St., 5th Floor, Denver, CO 80202.

For the Court:

Marcia S. Krieger, Chief Judge

 

U.S. Bankruptcy Court, District of Colorado

Notice of Entry of General Procedure Order 2001-8 and
Administrative Procedures for Electronic Case Files

The Judges of the Bankruptcy Court are pleased to announce release of General Procedure Order 2001-8, In the Matter of the Implementation of Electronic Filing Procedures ("GPO"), and Administrative Procedures for Electronic Case Files ("Procedures") attached thereto. The purpose of this GPO and these Procedures is to: (1) establish authority for e-filing in the bankruptcy court for the District of Colorado, and (2) promulgate administrative procedures necessary to effectively implement e-filing from an operational perspective, including several initial forms dealing with e-filer registration and debtor signature verification. As a prerequisite to e-filing, a new automated case management system called CM/ECF will become internally operational in the bankruptcy court for the District of Colorado on January 7, 2002. The e-filing capability covered by the GPO and Procedures will be activated later in 2002, although no specific date has been determined.

In preparing the proposed GPO and Procedures, the judges considered a number of policy and procedural recommendations concerning e-filing that were developed by eight separate focus groups consisting of 51 members of the bar, experts in specific subject matter areas, and staff members of the bankruptcy court. Models of general and procedural orders concerning electronic filing published by the Administrative Office of the U. S. Courts and several other courts were also considered.

The GPO and Procedures may be downloaded from the Court’s e-filing website at: http://ecf.cob.uscourts.gov. Copies may also be picked up free of charge from the Clerk of the Bankruptcy Court, 721 19th St., 5th Floor, Denver, CO 80202.

For the Court:

Bradford L. Bolton, Clerk

 

Colorado Division of Administrative Hearings

Chief Judge’s Directives

The Colorado Division of Administrative Hearings ("Division") is Colorado’s central panel of administrative law judges ("ALJs"). The Division provides administrative adjudication services to more than twenty-five different state agencies. The Division’s ALJs hear and decide cases involving workers’ compensation, professional and occupational licenses, public benefits and Medicaid, state government personnel disputes, education of disabled students, dismissal of tenured teachers, campaign finance laws, highway signs and highway access, lottery, bingo, raffles, and many other subject matters.

CJDs will be published on a space-available basis. See, e.g., 30 The Colorado Lawyer 53 (Aug. 2001). The Division’s CJDs also can be accessed online at: http://www.state.co.us/gov_dir/ gss/DOAH/cjdindex.htm.

 

Chief Judge’s Directive

No. 13: Oversized Exhibits

New Directive

(a) An oversized exhibit is any exhibit in a case before the Division of Administrative Hearings (including exhibits related to motions) that does not fit in the DOAH case file. Oversized exhibits include notebooks of documents, charts, photographs and models.

(b) The case name, case number and date submitted to the Division of Administrative Hearings will be written on or affixed to each oversized exhibit.

(c) When a file containing one or more oversized exhibits is returned to an agency, the oversized exhibits will be returned to the agency as well. The Division of Administrative Hearings will note on the case file that oversized exhibits are included in the record.

(d) When a file containing one or more oversized exhibits will not be returned to an agency, oversized exhibits will be disposed of by the Division of Administrative Hearings 60 days after the case file is closed. Parties may retrieve oversized exhibits within the 60-day period. Oversized exhibits will not be returned unless the time period for appeal or filing of exceptions has run.

POSTED: December 13, 2001

 

© 2002 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2002.


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