Look Out! Colorado court of appeals holds that persons who have a contingent interest in the outcome cannot testify as experts. They might not even be able to testify as fact witnesses.

This opinion was just issued by the court of appeals. It is subject to review by the Supreme Court. Until then it is the law of Colorado. There is no guarantee the Supreme Court will modify this opinion.

It seems to say that a public adjuster who expects 10% of any part of an award or judgment cannot testify as an expert witness. Under some circumstances the public adjuster would not be able to testify at all.

B. Contingent Compensation of a Fact Witness

1 10 Ethical rules have long prohibited lawyers from compensating witnesses on a contingent basis. See ABA Model Code of Professional Responsibility, DR 7–109(C) (1969) (“A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case.”).2 In People v. Belfor, 197 Colo. 223, 226, 591 P.2d 585, 587 (Colo.1979), an attorney was disciplined under DR 7–109, among other rules, for arranging payment of a judgment against the witness “meant to be a gift to [the witness], contingent upon his favorable testimony, or a loan with a contingency that it would be forgiven if he testified favorably.” The supreme court explained that “[i]t is both illegal and against public policy to pay or tender something of value to a witness in return for his testimony.” Id.

11 At all times pertinent to this case, Colo. RPC 3.4(b) provided that a lawyer shall not “falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.” Comment [3] differs from the ABA Model Rule by stating, “[i]t is improper to pay any witness a contingent fee for testifying.” (Emphasis added.)

12 Although no other Colorado case has addressed payment of a contingent fee to a fact witness, both the supreme court and a division of this court have disapproved of such compensation for an expert witness. In City & Cnty. of Denver v. Board of Assessment Appeals, 947 P.2d 1373, 1379 (Colo.1997), the supreme court vacated decisions in valuation proceedings because the appraisers who had testified were salaried employees of appraisal firms “that had executed contingent fee agreements with taxpayer clients.”3 It explained: “If the expert's payment is contingent on the ultimate outcome of the case, the witness' own interest will become intensified, and the reliability of the testimony and impartiality of the expert's position will be significantly weakened.” Id.; see also Buckley Powder Co. v. State, 70 P.3d 547, 559 (Colo.App.2002) (“An expert witness should not receive a contingent fee because the expert may thereby be improperly motivated to enhance his or her compensation and thus lose objectivity.”).

Similar concerns over the contingent compensation of fact witnesses have been recognized in other jurisdictions.4 However, these concerns are not implicated when a fact witness receives only reasonable compensation for actual expenses incurred or the reasonable value of the witness's time expended in testifying and, in some cases, preparing to testify.5

14 Here, plaintiff asserts that Sumner was not a contingent fee witness because its agreement with Sumner did not require him to testify. Although Sumner testified voluntarily, his contingent compensation under that agreement bore no relationship to his expenses or time expended in testifying. Therefore, we disapprove of giving Sumner a contingent interest in the outcome of the case and then calling him as a fact witness. Yet, this conclusion does not resolve whether such a fact witness must be stricken, as defendant urges.

1. Per Se Exclusion

2 15 With few exceptions, “[a]ll relevant evidence is admissible,” CRE 402, and “[e]very person is competent to be a witness,” CRE 601.6 Notwithstanding these rules, defendant asserts that a fact witness who can provide relevant testimony but is entitled to contingent compensation should per se be precluded from testifying. We reject this assertion based on the following four reasons.

*4 16 First, although the “common law at one time disqualified from testifying all parties and others with any pecuniary or proprietary interest in the outcome of a suit,” the “assumption that interested witnesses necessarily lie or that disqualification is the best way to deal with the threat of perjury” has been rejected. 27 Charles A. Wright & Victor J. Gold, Federal Practice & Procedure § 6005, at 69 (2007); see generally Osborn v. People, 83 Colo. 4, 26, 262 P. 892, 901 (1927).

3 17 Second, under CRE 601, per se exclusion of testimony is disfavored. See People v. Romero, 745 P.2d 1003, 1016 (Colo. 1987) (“per se rule of admissibility or inadmissibility [based on hypnosis of witness] ... is inconsistent with the general trend of witness competency that every person is competent to be a witness”); People v. McKeehan, 732 P.2d 1238, 1240 (Colo.App. 1986) (“While evidence of relaxation techniques may be used to impeach a witness' credibility ... it does not render the witness per se incompetent to testify.”); see also United States v. Cervantes–Pacheco, 826 F.2d 310, 315 (5th Cir. 1987) (rejecting a per se rule that “an informant who is promised a contingent fee by the government is [ ] disqualified from testifying,” citing similar Fed.R.Evid. 601).

18 Third, the potentially corrupting effect of contingent compensation implicates credibility, but does not involve competency, such as arose from hypnosis of the witnesses in Romero and McKeehan. Compare Erdmann v. Erdmann, 127 Mont. 252, 261 P.2d 367, 369 (1953) (“A credible witness is one whose statements are within reason and believable and the evidence of one witness is sufficient to establish a fact.”), with Bellmore v. State, 602 N.E.2d 111, 117 (Ind.1992) (“A competent witness is one who has ‘sufficient mental capacity to perceive, to remember and to narrate the incident he has observed and to understand and appreciate the nature and obligation of an oath.’ ”). Many courts that have addressed this effect hold that contingent compensation of both fact7 and expert8 witnesses involves credibility and weight, not per se exclusion.

*5 456 19 Fourth, “questions relating to the credibility of a witness and the weight to be accorded the testimony of a witness are matters to be resolved solely by the jury.” Burlington N. R.R. Co. v. Hood, 802 P.2d 458, 468 n.3 (Colo.1990).9 Several courts have taken this approach to a compensated fact witness.10 Thus, a rule of per se exclusion based on contingent compensation would be at odds with general recognition that “[i]n most instances, any potential for prejudice to a defendant's case will be avoided by allowing the witness to testify subject to searching cross-examination intended to develop fully any evidence of bias or motive on the part of the witness.” State v. McGonigle, 401 N.W.2d 39, 42 (Iowa 1987); 2 John H. Wigmore, Wigmore on Evidence § 577 (3d ed. 1940); see, e.g., People v. Ibarra, 849 P.2d 33, 39 (Colo.1993) (“Cross-examination should be liberally permitted to allow a thorough inquiry into the motives of witnesses.”).11

20 Some trial courts have precluded improperly paid fact witnesses because their payment violates ethical rules. See, e.g.,Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non–Marine Ass'n, 865 F.Supp. 1516, 1526 (S.D.Fla.1994) (excluding fact witness as a sanction where lawyer “violated the very heart of the integrity of the justice system”). We read such cases as exercising trial court discretion, not imposing a per se disqualification rule. Other cases that contain similar strong language against paying witnesses on a contingent basis often involve either the enforceability of agreements to pay witnesses a contingent fee or whether an attorney can be disciplined for providing such a payment. See, e.g.,The Florida Bar v. Jackson, 490 So.2d 935 (Fla.1986) (disciplinary proceeding); see also Accrued Fin. Servs., Inc. v. Prime Retail, Inc., 2000 WL 976800 (D.Md. No. CIV.JFM–99–2573, June 19, 2000) (unpublished order) (assignment void), aff'd,298 F.3d 291 (4th Cir.2002).

21 Because these cases do not analyze whether contingent fee witnesses are competent under rules analogous to CRE 601 or whether their contingent payment should be treated as a matter affecting credibility, they do not persuade us to adopt a per se rule precluding otherwise relevant testimony from contingent fee witnesses. Rather, the better approach leaves the admissibility of their testimony a matter of trial court discretion. Trial courts are in a unique position to assess the impact of such testimony on the overall integrity of the proceedings and to take measures to preserve the fairness of the trial.12

2. Preclusion as a Sanction

*6 7 22 The trial court could have precluded Sumner's testimony as a sanction, if it found either bad faith by plaintiff13 or conduct by plaintiff's counsel inconsistent with Colo. RPC 3.4(b).14 We express no opinion on bad faith, which the trial court shall consider on remand. See Byrne v. Nezhat, 261 F.3d 1075, 1123 (11th Cir. 2001) (“Unless the evidence on the issue of bad faith is uncontroverted, a district court should examine a party's conduct and make findings on that issue.”).

23 As to Colo. RPC 3.4(b), however, the trial court has already found that “Mr. Sumner got into the case ... in exchange for 10 percent of any recovery,” and that he was “providing expert testimony in exchange for a contingency fee [which] is not permitted.” Because the record supports these findings, we discern no reason to require that the trial court make further findings concerning Colo. RPC 3.4(b).15 Instead, we conclude that calling Sumner as a witness was contrary to Colo. RPC 3.4(b).16 However, this conclusion does not resolve whether Sumner's testimony should now be stricken.

8 24 “[W]here the Rules of Professional Conduct become intertwined with litigation and a potential ethical violation threatens to prejudice the fairness of the proceedings, a trial court may consider the issue not as a disciplinary matter but rather within the context of the litigation.” Mercantile Adjustment Bureau, L.L.C. v. Flood, 278 P.3d 348, 354 (Colo.2012). Such rulings most often arise in attorney disqualification. See, e.g.,Liebnow v. Boston Enterps. Inc., 2013 CO 8, 11, 296 P.3d 108. They involve discretion derived from the trial court's “inherent power to ensure the integrity of the process and fairness to the parties.” In re Estate of Myers, 130 P.3d 1023, 1025 (Colo.2006).

*7 25 Here, after finding that Sumner had a ten percent contingent interest in the outcome of the case, the trial court explained:

I don't see anything nor is the Court aware of any prohibition on someone putting a little sweat equity into a case. I mean, lawyers do it all the time. That's what a contingency fee case is but that's not someone rendering an expert opinion. That's someone coming in and assisting in that regard and buying in with their contractual agreement to perform certain services, so unless someone can come up with some case law to the contrary or some statutory authority to the contrary, that's what we're going to do.

This description of the law is inaccurate, and the court's analogy to contingency fees cases is flawed because trial counsel are usually precluded from testifying. See Colo. RPC 3.7. Thus, whether the court even considered excluding Sumner's testimony as a sanction based on Colo. RPC 3.4(b), which Murray cited below, is doubtful. And in any event, the court did not have the benefit of our analysis.

9 26 Accordingly, we conclude that remand is necessary for the trial court to make findings, which should address Sumner's contingent compensation, direct testimony, and cross-examination, in the context of the “need to protect the integrity of the trial.” Liebnow, 13.17 The court may take additional evidence. After making findings, the court shall exercise its discretion and determine whether Sumner's testimony should be stricken as a sanction for either plaintiff's bad faith, if any, or based on Colo. RPC 3.4(b).18 See id., 14 (“[I]t is within the exclusive province of the trial court to determine whether a violation of the rules regarding conflict harms the fairness of the proceedings.”).

27 If the trial court strikes Sumner's testimony, the court shall set the matter for a new trial, because his testimony accounted for a significant portion of plaintiff's case.19 But if the court declines to strike the testimony, a new trial is not required based on Sumner's testimony because we discern no other ground on which this testimony should have been excluded, as explained in the remainder of this section.

C. The Trial Court Did Not Abuse Its Discretion in Allowing Sumner to Testify as a Summary Witness

10 28 Defendant's in limine motion also sought to exclude Sumner's testimony based on the “personal knowledge” requirement of CRE 602 because:

*8 Mr. Sumner has ... said he has no personal knowledge of any incident that occurred.... I don't know exactly what he's going to testify to. I think he prepared some summaries ... but I don't think you can go out and take a lay witness and have him look at documents and come in and testify.

In denying the motion, the trial court explained that complex trials often involve summary witnesses, but cautioned that Sumner's testimony could be based only on admissible evidence.

29 A trial court's decision on such an evidentiary issue is reviewed for an abuse of discretion. People v. Valencia, 257 P.3d 1203, 1209 (Colo.App.2011). A trial court does not abuse its discretion unless its ruling is manifestly arbitrary, unreasonable, or unfair. Id.

30 On appeal, defendant again argues that contrary to CRE 602, Sumner “had no personal knowledge of any of the events ... involved in this controversy.” Rather, he “was allowed to testify as to his review of the evidence” and summarize what the evidence showed. Colorado courts have not addressed the admissibility of summary witness testimony under CRE 602.

31 Other courts to have done so generally hold such testimony admissible. See27 Federal Practice & Procedure § 6026, at 229 (courts “favor [ ] permitting the summary witness to testify for reasons analogous to those underlying Rule 1006, which permits the introduction of summaries of writings and other real evidence”); see also In re Furr's Supermarkets, Inc., 373 B.R. 691, 704 (B.A.P. 10th Cir.2007) (“A ‘summary witness' is ordinarily allowed to testify.”). In Cowles v. Sheeline, 259 Mont. 1, 855 P.2d 93, 101 (1993), for example, the court explained:

[J]ust as an expert can assist a jury by imparting special knowledge that helps the jury to understand technical evidence, a non-expert summary witness can help the jury organize and evaluate evidence which is factually complex and fragmentally revealed in the testimony of a multitude of witnesses throughout the trial.

(quoting United States v. Lemire, 720 F.2d 1327, 1347 (D.C.Cir.1983)); see also In re Furr's Supermarkets, Inc., 373 B.R. at 703 (“it does not take an expert to create graphs and summarize data”).

32 Further, and contrary to defendant's lack of personal knowledge argument, a summary witness has such knowledge based on an independent review of other evidence. See In re Furr's Supermarkets, Inc., 373 B.R. at 704 (“no violation of either Rule 602's literal language or its overriding purpose” where witness “only summarized evidence ... that several prior witnesses had already offered; he did not testify about any of the events underlying the trial; [and] he testified from his personal knowledge of the exhibits and transcripts”); accord Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1123 (10th Cir. 2005) (summary witness did not violate Fed.R.Evid. 602 “[s]ince she personally examined these audit reports, she had personal knowledge of their content”).20 The rationale of these authorities is persuasive and conforms to the broad discretion afforded trial courts in evidentiary matters.

*9 33 Defendant relies on criminal cases that allow summary witnesses in “limited circumstances in complex cases,” but caution against using such witnesses “as a substitute for, or a supplement to, closing argument.” See United States v. Armstrong, 619 F.3d 380, 385 (5th Cir.2010); accord United States v. Nguyen, 504 F.3d 561, 572 (5th Cir.2007) (although court “may admit summary witness testimony in limited circumstances ... the purpose of summary evidence is not simply to allow the Government to repeat its entire case-in-chief shortly before jury deliberations”). Yet, these cases also recognize that such dangers are reduced by requiring that the summary testimony has “an adequate foundation in evidence that is already admitted.” Armstrong, 619 F.3d at 385; see Fagiola v. Nat'l Gypsum Co. AC & S., Inc., 906 F.2d 53, 57 (2d Cir.1990) (summary witness testimony “must be based upon and fairly represent competent evidence already before the jury”) (quoting United States v. Conlin, 551 F.2d 534, 538 (2d Cir.1977)).21

34 Here, the trial court ruled that Sumner would only be allowed to “provid [e] the jury with a summary analysis of the documents or the information contained in documents that will have been admitted into evidence.” Defendant does not dispute that all documents to which Sumner referred had been admitted, most by stipulation. The court also found that the case was complicated—both parties submitted over 100 exhibits each in an eight-day jury trial—and that a summary witness could help the jury determine “how the pieces fit together from the documents.” Because the record supports these findings, we cannot say that this ruling was manifestly arbitrary, unreasonable, or unfair. People v. Osario–Bahena, 2013 COA 55, 65, ––– P.3d –––– (“Because the record supports this decision, we discern no abuse of discretion.”).

Just In Case Bus. Lighthouse, LLC v. Murray, 2013 COA 112 cert. granted in part, 13SC722, 2014 WL 4402961 (Colo. Sept. 8, 2014)

Keith Frankl
The Frankl Law Firm, P.C.
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