Murray v. Just in Case Business Lighthouse, LLC
2016 CO 47
| Colo. | 2016Background
- JIC hired Preston Sumner as a business-advisor/witness and agreed to pay him a contingent ten‑percent interest in the lawsuit’s proceeds; Sumner prepared summary exhibits and was disclosed as a witness.
- Murray moved to exclude Sumner, arguing (1) the contingent fee violated Colo. RPC 3.4(b), (2) Sumner lacked personal knowledge under CRE 602, and (3) the summary charts were inadmissible under CRE 1006.
- The trial court allowed Sumner to testify as a non‑expert summary witness (not as an expert or fact witness) and admitted two summary exhibits; the jury returned a verdict for JIC.
- The court of appeals found the fee agreement violated RPC 3.4(b) and remanded to determine whether exclusion was an appropriate sanction, but otherwise upheld admission of Sumner’s testimony and the summaries.
- The Colorado Supreme Court granted certiorari and (a) held that ethical violations do not automatically displace the evidence rules, (b) approved limited use of non‑expert summary witnesses who examine underlying documents to establish personal knowledge, and (c) held that Rule 1006 bars admission of summary charts that characterize evidence argumentatively.
Issues
| Issue | Plaintiff's Argument (Murray) | Defendant's Argument (JIC) | Held |
|---|---|---|---|
| Whether contingent‑fee payment to a witness requires per se exclusion of that witness | Contingent fee violates RPC 3.4(b); testimony tainted and should be excluded as a matter of policy | Ethical rule does not automatically control admissibility; exclusion is discretionary under CRE 403 | No per se exclusion. Ethical violation found, but admissibility governed by CRE 403 balancing; trial court did not abuse discretion in admitting Sumner |
| Whether a non‑expert may testify as a summary witness under CRE 602 | Sumner lacked personal knowledge and thus cannot testify to summarize evidence | Summary witnesses may gain sufficient personal knowledge by examining underlying documents; testimony permissible where evidence is complex/voluminous | Trial courts may admit non‑expert summary testimony when evidence is sufficiently complex and voluminous and the witness has examined the underlying admitted documents; admitting Sumner was not an abuse |
| Whether summary testimony risks argument/undue weight without limiting instruction | Summary testimony impermissibly becomes argument and should be restricted or limited by instruction | Cross‑examination and jury awareness of bias mitigate prejudice; limiting instructions are preferable but not always required | Trial courts should consider limiting instructions; here absence of a requested limiting instruction was not reversible error |
| Whether the two summary exhibits were admissible under CRE 1006 | Exhibits were argumentative/demonstrative and improperly characterized evidence; inadmissible as summaries | Exhibits aided juror understanding of voluminous evidence; admissibility proper where underlying documents are admitted | Exhibit 1 (neutral chronological summary) admissible under Rule 1006; Exhibit 1.1 (headings "Things Mahoney Knew/Did NOT Know") was argumentative and admission was an abuse of discretion, but error was harmless |
Key Cases Cited
- People v. Segovia, 196 P.3d 1126 (Colo. 2008) (abuse‑of‑discretion standard for evidentiary rulings)
- Liebnow ex rel. Liebnow v. Boston Enters. Inc., 296 P.3d 108 (Colo. 2013) (ethical violations intertwined with litigation reviewed by courts)
- United States v. Lemire, 720 F.2d 1327 (D.C. Cir. 1983) (framework and cautions for non‑expert summary testimony)
- Burlington N. R.R. Co. v. Hood, 802 P.2d 458 (Colo. 1990) (personal‑knowledge threshold for witnesses is low and may be inferable)
- People v. Romero, 745 P.2d 1003 (Colo. 1987) (favoring admissibility and allowing jury to weigh credibility)
- United States v. Brooks, 736 F.3d 921 (10th Cir. 2013) (admission analysis: usefulness to jury versus prejudice for summaries)