C.R.C.P. 16

History

Source: Entire rule repealed April 14, 1994, effective January 1, 1995; entire rule adopted April 14, 1994, effective January 1, 1995, for all cases filed on or after that date; committee comment approved June 10, 1994; (c)(VI) and (c)(VIII) amended and adopted June 25, 1998, effective January 1, 1999; entire rule amended and adopted February 13, 2002, effective July 1, 2002; entire rule amended and adopted November 6, 2003, effective July 1, 2004; (c) amended and effective June 28, 2007; (b)(9) amended by corrective order, effective November 5, 2007; (f)(3)VII. amended and effective September 16, 2010; (b)(3), (b)(4), (b)(5), (b)(7) to (b)(10), (c), (e), IP(f), (f)(2)(B), (f)(3)IV., (f)(3)VI.(D), and (g) amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b); (b) to (e) and comments amended and adopted May 28, 2015, effective July 1, 2015, for cases filed on or after July 1, 2015; (f)(3)(VI)(B) amended, adopted, and effective December 7, 2017; (b)(18) added and (b)(18) renumbered to (b)(19) and adopted January 7, 2021, effective April 1, 2021 (Rule Change 2021(01)); (b)(6) amended, (d)(3) renumbered to (d)(4) and (d)(3) added and adopted January 6, 2022, effective March 1, 2022 (Rule Change 2022(01)). Cross references: For disclosure and discovery, see chapter 4 (C.R.C.P. 26 to 37); for dismissal of actions, see C.R.C.P. 41; for amended and supplemental pleadings, see C.R.C.P. 15; for instructions to jurors, see C.R.C.P. 51; for Colorado jury instructions, see C.R.C.P. 51.1. COMMENTS History and Philosophy [1] Effective differential case management has been a long-term goal of the Bench, Bar, and Public. Adoption by the Colorado Supreme Court of C.R.C.P. 121 and its practice standards in 1983; revised C.R.C.P. 16 in 1988 to require earlier disclosure of matters necessary for trial; and the Colorado Standards for Case Manage- ment—Trial Courts in 1989 were a continuing and evolving effort to achieve an orderly, fair and less expensive means of dispute resolution. Those rules and standards were an improvement over prior practice where there was no pre- scribed means of case management, but prob- lems still remained. There were problems of discovery abuse, late or inadequate disclosure, lack of professionalism, slow case disposition, outrageous expense and failure to achieve an early settlement of those cases that ultimately settled. [2] In the past several years, a recognition by the organized Bar of increasing unprofes- sional conduct by some attorneys led to further study of problems in our civil justice system and new approaches to resolve them. New Fed- eral Rules of Civil Procedure were developed to require extensive early disclosure and to limit discovery. The Colorado Bar Association’s Pro- fessionalism Committee made recommenda- tions concerning improvements of Colorado’s case management and discovery rules. [3] After substantial input through surveys, seminars and Bench/Bar committees, the Colo- rado Supreme Court appointed a special Ad Hoc Committee to study and make recommen- dations concerning Colorado’s Civil Rules per- taining to case management, disclosure/discov- ery and motions practice. Reforms of Rules 16, 26, 29, 30, 31, 32, 33, 34, 36, 37, 51, 121 § 1-11, 121 § 1-12, 121 § 1-15, and 121 § 1-19 were developed by this Committee. [4] The heart of the reform is a totally re- written Rule 16 which sets forth a new system of case management. Revisions to Rules 26, 29, 30, 31, 32, 33, 34, 36, and 37 are patterned after December 1, 1993, revisions to Federal Rules of the same number, but are not in all respects identical. Colorado Rules 16, 26, 29, 30, 31, 32, 33, 34, 36, and 37 were developed to interrelate with each other to provide a differential case management/early disclosure/limited discovery system designed to resolve difficulties experi- enced with prior approaches. Changes to C.R.C.P. 121 §§ 1-11, 1-12, 1-15, and 1-19 are designed to interrelate with the case manage- ment/disclosure/discovery reform to improve motions practice. In developing these rules, the Committee paid particular attention to the 1993 revisions of the Federal Rules of Civil Proce- dure and the work of the Colorado Bar Associa- tion regarding professionalism. Operation [5] New Rule 16 and revisions of Rules 26, 29, 30, 31, 32, 33, 34, 36, 37, 51, and 121 §§ 1-11, 1-12, 1-15, and 1-19 are designed to accomplish early purposeful and reasonably economical management of cases by the parties with Court supervision. The system is based on communication, including required early disclo- sure of persons with knowledge and documents relevant to the case, which disclosure should lead in many cases to early evaluation and settlement efforts, and/or preparation of a work- able Case Management Order. Lead attorneys for each party are to communicate with each other in the spirit of cooperation in the prepara- tion of both the Case and Trial Management Orders. Court Case Management Conferences are available where necessary for any reason- able purpose. The Rules require a team effort with Court leadership to insure that only appro- priate discovery is conducted and to carefully plan for and conduct an efficient and expedi- tious trial. [6] Rules 16 and 26 should work well in most cases filed in Colorado District Courts. However, where a case is complex or requires special treatment, the Rules provide flexibility so that the parties and Court can alter the pro- cedure. The importance of economy is encour- aged and fostered in a number of ways, includ- ing authorized use of the telephone to conduct in-person attorney and Court conferences. [7] The Committee acknowledges the greater length of the Rules comprising this re- formed system. However, these Rules have been developed to describe and to eliminate ‘‘hide-the-ball’’ and ‘‘hardball’’ tactics under previous Disclosure Certificate and Discovery Rules. It is expected that trial judges will assert- ively lead the management of cases to ensure that justice is served. In the view of the Com- mittee, abuses of the Rules to run up fees, feed egos, bludgeon opponents into submission, force unfair settlements, build cases for sanc- tions, or belittle others should not be tolerated. [8] These Rules have been drafted to em- phasize and foster professionalism and to de- emphasize sanctions for non-compliance. Ad- equate enforcement provisions remain. It is expected that attorneys will strive diligently to represent their clients’ best interests, but at the same time conduct themselves as officers of the Court in the spirit of the recently adopted Rules of Professional Conduct. (a) The purpose and scope of Rule 16 are as set forth in subsection (a). Unless otherwise or- dered by the Court or stipulated by the parties, Rule 16 does not mandatorily apply to domestic relations, juvenile, mental health, probate, water law, forcible entry and detainer, Rule 120, or other expedited proceedings. Provisions of the Rule could be used, however, and Courts in- volved in those proceedings should consider their possible applicability to particular cases. (b) The ‘‘Case Management Order’’ is the central coordinating feature of the Rule 16 case man- agement system. It comes at a relatively early but realistic time in the case. The Case Manage- ment Order governs the trial setting; contains or coordinates disclosure; limits discovery and es- tablishes a discovery schedule; establishes the deadline for joinder of additional parties and amendment of pleadings; coordinates handling of pretrial motions; requires a statement con- cerning settlement; and allows opportunity for inclusion of other provisions necessary to the case. [9] Lead counsel for each of the parties are required to confer about the nature and bases of their claims and defenses, discuss the matters to be disclosed and explore the possibilities of a prompt settlement or other resolution of the case. As part of the conferring process, lead counsel for each of the parties are required to cooperate in the development of the Case Man- agement Order, which is then submitted to the Court for approval. If there is disagreement about any aspect of the proposed Case Manage- ment Order, or if some aspect of the case re- quires special treatment, the parties are entitled to an expeditious Case Management Confer- ence. If any party is appearing pro se an auto- matic mandatory Case Management Conference is triggered. [10] A time line is specified in C.R.C.P. 16(b) for the C.R.C.P. 26(a)(1) disclosures, con- ferring of counsel and submission of the pro- posed Case Management Order. The time line in section (b) is triggered by the ‘‘at issue’’ date, which is defined at the beginning of C.R.C.P. 16(b). [11] Disclosure requirements of C.R.C.P. 26, including the duty to timely supplement and correct disclosures, together with sanction pro- visions of C.R.C.P. 37 for failure to make dis- closure, are incorporated by reference. Because of mandatory disclosure, there should be sub- stantially less need for discovery. Presumptive limitations on discovery are specified in C.R.C.P. 26(b)(2). The limitations contained in C.R.C.P. 26 and Discovery Rules 29, 30, 31, 32, 33, 34, and 36 are incorporated by reference and provision is made for discovery above pre- sumptive limitations if, upon good cause shown (as defined in C.R.C.P. 26(b)(2)), the particular case warrants it. The system established by C.R.C.P. 16(b)(1)(IV) requires the parties to set forth and obtain Court approval of a schedule of discovery for the case, which includes the tim- ing and number of particular forms of discovery requests. The system established by C.R.C.P. 16(b)(1)(IV) also requires lead counsel for each of the parties to set forth the basis of and neces- sity for all such discovery and certify that they have advised their clients of the expenses and fees involved with each such item of discovery. The purpose of such discovery schedule and expense estimate is to bring about an advanced realization on the part of the attorneys and cli- ents of the expense and effort involved in the schedule so that decisions can be made con- cerning propriety, feasibility, and possible alter- natives (such as settlement or other means of obtaining the information). More stringent stan- dards concerning the necessity of discovery contained in C.R.C.P. 26(b)(2) are incorporated into C.R.C.P. 16(b)(1)(IV). A Court should not simply ‘‘rubber-stamp’’ a proposed discovery schedule even if agreed upon by counsel. [12] A Court Case Management Confer- ence will not be necessary in every case. It is anticipated that many cases will not require a Court Case Management Conference, but such conference is available should the parties or the Court find it necessary. Regardless of whether there is a Court Case Management Conference, there will always be the Case Management Or- der which, along with the later Trial Manage- ment Order, should effectively govern the course of the litigation through the trial. (c) The Trial Management Order is jointly devel- oped by the parties and filed with the Court as a proposal no later than thirty days prior to the date scheduled for the trial (or at such other time as the Court directs). The Trial Manage- ment Order contains matters for trial (see spe- cific enumeration of elements to be contained in the Trial Management Order). It should be noted that the Trial Management Order refer- ences the Case Management Order and, particu- larly with witnesses, exhibits, and experts, con- templates prior identification and disclosure concerning them. Except with permission of the Court based on a showing that the witness, exhibit, or expert could not have, with reason- able diligence, been anticipated, a witness, ex- hibit, or expert cannot be revealed for the first time in the Trial Management Order. [13] As with the Case Management Order, Trial Management Order provisions of the Rule are designed to be flexible so as to fit the par- ticular case. If the parties cannot agree on any aspect of the proposed Trial Management Or- der, a Court Trial Management Conference is triggered. The Court Trial Management Confer- ence is mandatory if any party is appearing in the trial pro se. [14] As with the Case Management Order procedure, many cases will not require a Court Trial Management Conference, but such a con- ference is available upon request and encour- aged if there is any problem with the case that is not resolved and managed by the Trial Manage- ment Order. [15] The Trial Management Order process will force the attorneys to make decisions on which claims or defenses should be dropped and identify legal issues that are truly contested. Both of those requirements should reduce the expenses associated with trial. In addition, the requirement that any party seeking damages de- fine and itemize those damages in detail should facilitate preparation and trial of the case. [16] Subsection (c)(IV), pertaining to des- ignation of ‘‘order of proof,’’ is a new feature not contained in Federal or State Rules. To facilitate scheduling and save expense, the par- ties are required to specifically identify those witnesses they anticipate calling in the order to be called, indicating the anticipated length of their testimony, including cross-examination. (d) Provision is made in the C.R.C.P. 16 case management system for an orderly advanced exchange and filing of jury instructions and verdict forms. Many trial courts presently re- quire exchange and submission of a set of agreed instructions during the trial. C.R.C.P. 16(d) now requires such exchange, conferring, and filing no later than three (3) days prior to the date scheduled for the commencement of the trial (or such other time as the Court other- wise directs). [17] The previous substantive amendment to Rule 16(b) established presumptive discov- ery limits and procedures which caused filing of detailed Case Management Orders and appear- ing before a judge to become rare. While this reduced lawyers’ time in preparing detailed or- ders, it also resulted in judges not being in- volved in pretrial case management. [18] Among the key principles adopted by the Federal Advisory Committee on Rules of Civil Procedure, as well as the Civil Access Pilot Project (‘‘CAPP’’), is that cases move more efficiently if judges are involved directly and early in the process. ( See also, ‘ ‘Working Smarter, Not Harder: How Excellent Judges Manage Cases ,’’ at 7-20 (2014), available at https://www.actl.com). [19] Particularly in conjunction with the principle that discovery should be in proportion to the genuine needs of the case, it was deemed important for judges, in addition to litigants, to be involved early in the pretrial process in de- ciding how much discovery was appropriate. Both judges and lawyers have noted that some lawyers have a financial incentive not to limit discovery. Perhaps more significant was the rec- ognition that many lawyers engage in ‘‘over discovery’’ because of the fear (justifiable or not) that failing to engage in every conceivable means of discovery until a judge orders one to ‘‘stop!’’ could expose a trial lawyer to subse- quent expensive malpractice litigation. These problems are greatly alleviated with the inter- vention of trial judges placing reasonable limi- tations on discovery and potentially excessive pretrial practices at the earliest meaningful stage of the case. [20] CAPP required in-person initial case management conferences with the judge. These conferences followed submission of a report from the parties which included information relevant to the evaluation of proportionality as well as how the case should be handled. The analysis of CAPP reflects that this practice was widely liked by both lawyers and judges. It is desirable that there be an official order arising from the case management conference reflect- ing the court’s input and which, importantly, provides enforcement power. Thus, Rule 16(b) has completely rewritten the rule to include requiring a joint report to the court in the form of a proposed Case Management Order. It can be approved or modified by the court to become the official order. It is to be filed with the court not later than 42 days after the case is at issue, but at least 7 days before the case management conference. [21] The new rule lists the required con- tents of the proposed Case Management Order and also provides a form that can be down- loaded for preparation of the proposed order. Although at first glance the new rule appears somewhat onerous, most of the information sought is relatively easy to include and should be discussed by opposing counsel or parties, in any event, at the outset of the case. [22] The joint report/proposed Case Man- agement Order must contain the following in- formation, which is unchanged from former Rule 16(b)(1)-(3): the ‘‘at issue’’ date; contact information for the ‘‘responsible attorney’’; and a description of the ‘‘meet and confer’’ discus- sions. The joint report must also provide: • a brief description of the case from each side, and of the issues to be tried (one page per side); • a list of pending, unresolved motions; • an evaluation of the proportionality fac- tors from C.R.C.P. 26(b)(1); • a confirmation that the parties discussed settlement and description of prospects for settlement; • proposed deadlines for amending the pleadings; • the dates when disclosures were made and any objections to those disclosures; • an explanation of why, if applicable, full disclosure of damages has not been completed and when it will be; • subjects for expert testimony with a limit of only one expert per side per subject unless good cause is established consistent with pro- portionality; • acknowledgement that oral discovery mo- tions may be required by the court; • provision for electronic discovery when significant electronic discovery is anticipated; • estimated time to complete discovery and length of trial so the court can set trial at the case management conference; and • a catchall for other appropriate matters. [23] The former provisions in Rule 16(c) related to Modified Case Management Orders are repealed as moot but are replaced with the deadlines for pretrial motions presently con- tained in Rule 16(b)(9). [24] Rule 16(d) is rewritten to require per- sonal or telephonic attendance at the case man- agement conference by lead counsel. In antici- pation that judges will not want (or need) to hold in person case management conferences in all cases, Rule 16(d)(3) allows the court to dis- pense with a case management conference if it is satisfied that the lawyers are working to- gether well and the joint report contemplates appropriate and proportionate pretrial activity. However, the rule recommends that case man- agement conferences always be held if one or more of the parties is self-represented. This gives the court the opportunity to try to keep the case and self-represented party focused and on track from the beginning. ANNOTATION I. General Consideration. II. Disclosure. III. Case Management Order. IV. Trial Management Order. I. GENERAL CONSIDERATION. Law reviews. For article, ‘‘Pre-Trial in Colo- rado in Words and at Work’’, see 27 Dicta 157 (1950). For article, ‘‘Some Comments on Pre- Trial’’, see 28 Dicta 23 (1951). For article, ‘‘Pleadings, Rules 7 to 25’’, see 28 Dicta 368 (1951). For article, ‘‘Pleadings and Motions: Rules 7-16’’, see 23 Rocky Mt. L. Rev. 542 (1951). For article, ‘‘Expert Witnesses’’, see 24 Rocky Mt. L. Rev. 418 (1952). For article, ‘‘Pre-Trial Procedure — Should It Be Abolished in Colorado?’’, see 30 Dicta 371 (1953). For article, ‘‘One Y ear Review of Civil Procedure and Appeals’’, see 37 Dicta 21 (1960). For ar- ticle, ‘‘One Y ear Review of Civil Procedure and Appeals’’, see 40 Den. L. Ctr. J. 66 (1963). For article, ‘‘Plaintiff’s Advantageous Use of Dis- covery, Pre-Trial and Summary Judgment’’, see 40 Den. L. Ctr. J. 192 (1963). For Note, ‘‘One Y ear Review of Civil Procedure’’, see 41 Den. L. Ctr. J. 67 (1964). For comment on Glisan v. Kurth appearing below, see 36 U. Colo. L. Rev. 568 (1964). For article, ‘‘Selecting Cases for Mediation’’, see 17 Colo. Law. 2007 (1988). For article, ‘‘Colorado’s New Rules of Civil Procedure, Part I: Case Management and Dis- closure’’, see 23 Colo. Law. 2467 (1994). For article, ‘‘Common Pitfalls in Complying with C.R.C.P. 16 and 26 When Drafting Case Man- agement Orders’’, see 26 Colo. Law. 39 (March 1996). For article, ‘‘Rules 16 and 16.2: Reality Check 1998’’, see 27 Colo. Law. 45 (March 1998). For article, ‘‘Civil Rules 16 and 26: Pretrial Procedure and Discovery Revisited and Revised’’, see 30 Colo. Law. 9 (December 2001). For article, ‘‘Comment on the Amend- ments to C.R.C.P. 16: An Opportunity to Enjoy Practicing Law’’, see 31 Colo. Law. 23 (April 2002). For article, ‘‘A Modest Proposal: The Rule 3(a) Waiver Agreement’’, see 46 Colo. Law. 23 (Mar. 2017). Annotator’s note. Some of the following annotations refer to cases decided under C.R.C.P. 16 as it existed prior to the 1994 repeal and readoption of that rule, effective January 1, 1995. Former C.R.C.P. 16 provided for pre-trial conferences and pre-trial orders rather than case management orders and trial management or- ders. This rule is the authority under which trial courts promulgate local pre-trial rules and hold pre-trial conferences. Glisan v. Kurth, 153 Colo. 102, 384 P.2d 946 (1963). The rule is not a mere technicality and compliance is mandatory. Danburg v. Realties, Inc., 677 P.2d 439 (Colo. App. 1984). This rule provides that the court may direct the attorneys to appear before it for a confer- ence to consider certain matters, and having done so, then the court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, which limits the issues for trial to those not disposed of by admissions or agreement of counsel, and such order, when entered, controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229 (1955). Effective use of the pre-trial conference can, and does, contribute much in meeting the problems of mounting congestion in the trial courts. Glisan v. Kurth, 153 Colo. 102, 384 P.2d 946 (1963). To make pre-trial procedure effective, ap- pellate interference with the trial court in this area must be kept at a minimum. Glisan v. Kurth, 153 Colo. 102, 384 P.2d 946 (1963). In the application of the pre-trial rule, the court must be careful that devotion to the task does not lead it to deprive a litigant of his right to a trial. Glisan v. Kurth, 153 Colo. 102, 384 P.2d 946 (1963). Civil discovery rules inapplicable to re- lease hearings. Based on §§ 16-8-115 to 16-8- 117 and on the special nonadversary nature of a release inquiry, the participants in release pro- ceedings do not have the broad right of discov- ery as provided in the rules of civil procedure. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976). Under C.R.C.P. 81(a), the procedure in re- lease hearings under § 16-8-115 is so inconsis- tent and in conflict with the rules of civil pro- cedure as to make civil discovery rules inapplicable to release hearings. People v. Dis- trict Court, 192 Colo. 225, 557 P.2d 414 (1976). Denial of a jury trial for failure to comply with section (d) was not an appropriate rem- edy and a right to a jury trial may only be lost for the reasons cited in C.R.C.P. 39(a). Wright v. Woller, 976 P.2d 902 (Colo. App. 1999). ‘‘Lone Pine orders’’, where a trial court orders plaintiffs to present prima facie evi- dence supporting their claims after initial disclosures, but before other discovery com- mences, or risk having their case dismissed, are prohibited under state law. While the su- preme court revised this rule to create a ‘‘differ- ential case management/early disclosure/limited discovery system’’, these revisions are not so substantial as to effectively overrule other su- preme court holdings. Although portions of this rule and C.R.C.P. 26 may afford trial courts more discretion than they previously had, that discretion is not so broad as to allow courts to issue Lone Pine orders. And, notably, the state’s version of this rule does not include the lan- guage relied upon by federal courts when issu- ing Lone Pine orders. Existing procedures un- der the Colorado rules of civil procedure sufficiently protect against meritless claims, and, therefore, a Lone Pine order was not re- quired solely on that basis. Strudley v. Antero Res. Corp., 2013 COA 106, 350 P.3d 874, aff’d, 2015 CO 26, 347 P.3d 149. Applied in In re Estate of Gardner, 31 Colo. App. 361, 505 P.2d 50 (1972); Clark v. District Court, 668 P.2d 3 (Colo. 1983); Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977 (Colo. App. 2011). II. DISCLOSURE. Liberal policy regarding supplementing disclosure certificate. Just as C.R.C.P. 15 has been held to reflect the policy of liberally allow- ing amendments to pleadings, so too should a similar policy be followed with respect to supplementing disclosure certificates. Consoli- dated Hardwoods v. Alexander Const., 811 P.2d 440 (Colo. App. 1991). Absent a showing of prejudice, a trial court abuses its discretion in not permitting amendment to a disclosure statement where the request is made more than 80 days prior to trial and relates to a matter that was previously known but was erroneously not included in the disclosure certificate. Consolidated Hardwoods v. Alexander Const., 811 P.2d 440 (Colo. App. 1991). When a trial court’s actions substantially tip the balance in an effort to avoid prejudice and delay and as a result unreasonably deny a party his or her day in court, the reviewing court must overturn the decision of the trial court. J.P. v. District Court, 873 P.2d 745 (Colo. 1994). The district court abused its discretion in denying the petitioner’s motions to endorse witnesses and freezing discovery. J.P. v. Dis- trict Court, 873 P.2d 745 (Colo. 1994). Trial court abused its discretion when, as a sanction for filing a disclosure certificate signed by plaintiff’s former attorney’s para- legal rather than the plaintiff herself, the court limited the witnesses the plaintiff could call to the defendant and herself. Defendants did not suffer any prejudice as a result of the improper signing of the certificate since the filing served its purpose of timely informing them of the evidence plaintiff intended to present at trial. Keith v. V aldez, 934 P.2d 897 (Colo. App. 1997). If one party elicits opinions from another party’s expert witness which are beyond the scope of the testimony described in the disclo- sure statement and are not of the kind which would impeach such testimony, the witness will be considered, for the purposes of the disclosure statement requirements, as the witness of the party eliciting the opinions. Freedman v. Kaiser Fund Health Plan, 849 P.2d 811 (Colo. App. 1992). An objection on the grounds that a party has not adequately disclosed the basis for and summary of each expert witness opinion must be made within a reasonable time. Perkins v. Flatiron Structures Co. 849 P.2d 832 (Colo. App. 1992). The purpose of the disclosure mandated by the rule is to provide parties with ad- equate time to prepare by obtaining relevant evidence. Williams v. Continental Airlines, Inc., 943 P.2d 10 (Colo. App. 1996). Sanctions for failure to comply with disclo- sure rules rest in the discretion of the trial court and should not be disturbed absent an abuse of discretion. Such sanctions, which may include witness preclusion, should com- mensurate with the seriousness of the violation. Williams v. Continental Airlines, Inc., 943 P.2d 10 (Colo. App. 1996). Applied in People ex rel. Pub. Utils. Comm’n v. Entrup, 143 P.3d 1120 (Colo. App. 2006). III. CASE MANAGEMENT ORDER. This rule commands that a trial court shall make an order which recites the action taken at the pre-trial conference, and pursuant thereto, requires the trial court to direct the preparation of an order containing what transpired at the conference, and how the results of such confer- ence shall control the subsequent course of the proceedings. Albright v. District Court, 150 Colo. 487, 375 P.2d 685 (1962). The pre-trial order controls the subse- quent course in the action, unless the court modifies the same at the trial to prevent mani- fest injustice. Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229 (1955); Harris Park Lakeshore, Inc. v. Church, 152 Colo. 278, 381 P.2d 459 (1963); Shira v. Wood, 164 Colo. 49, 432 P.2d 243 (1967); Greenlawn Sprinkler Corp. v. Forsberg, 170 Colo. 286, 461 P.2d 22 (1969); Pub. Serv. Co. v. Bd. of Water Works, 831 P.2d 470 (Colo. 1992). Order must fully recite any action taken relative to amendments allowed to the plead- ings. Gorin v. Arizona Columbine Ranch, Inc., 34 Colo. App. 405, 527 P.2d 899 (1974). Case reinstated where a delay reduction or- der required both the filing of a proposed case management order and setting the case for trial within 30 days; held that the issuance of case management order then extended deadline for setting of trial another 30 days. Becker v. Dis- trict Court for Arapahoe County, 969 P.2d 700 (Colo. 1998). This rule contains no language limiting its application to the first trial only of an action; accordingly, it will govern second trial in ab- sence of showing that orders and stipulation made at pre-trial conference will work manifest injustice. Harris Park Lakeshore, Inc. v. Church, 152 Colo. 278, 381 P.2d 459 (1963). Disputed issues should not be resolved. In the absence of agreement or admissions by the parties, the trial court should not resolve dis- puted issues in a pre-trial order. Cunningham v. Spring V alley Estates, Inc., 31 Colo. App. 77, 501 P.2d 746 (1972), aff’d, 181 Colo. 435, 510 P.2d 336 (1973). Assent is assumed, absent objection. It is assumed, in the absence of an objection, that a pre-trial order is made in cooperation with, and by assent of, the parties. Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229 (1955). In the absence of an objection to the pre- trial order, or the part thereof with which coun- sel present do not agree, the order precludes any further challenge of the questions determined at the pre-trial conference. Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229 (1955); Shira v. Wood, 164 Colo. 49, 432 P.2d 243 (1967). In the absence of an objection, all matters determined at the pre-trial conference have the force and effect of a stipulation of the parties as to the correctness thereof. Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229 (1955); Shira v. Wood, 164 Colo. 49, 432 P.2d 243 (1967); Greenlawn Sprinkler Corp. v. Forsberg, 170 Colo. 286, 461 P.2d 22 (1969). Pretrial order, if not objected to, controls introduction of evidence at trial. Great W. Food Packers, Inc. v. Longmont Foods Co., 636 P.2d 1331 (Colo. App. 1981). When a party violates a court’s pretrial order at trial, the opposing party must con- temporaneously object to preserve the issue for appeal. People v. Dinapoli, 2015 COA 9, 369 P.3d 680. The court errs in going beyond remaining issues. Where there is no objection to the pre- trial order, the court itself does not thereafter in any manner ‘‘modify’’ the pre-trial order, and the issue is never injected into the case on the basis of any expressed or implied consent of the parties, the trial court errs in going beyond the issues which according to the pre-trial order are the only issues remaining. Greenlawn Sprinkler Corp. v. Forsberg, 170 Colo. 286, 461 P.2d 22 (1969). The court errs in giving instructions incon- sistent with stipulations of pre-trial order. Where a pre-trial conference order, duly signed and to which no objection is made by either party, stipulates to a certain fact, which dis- penses with the necessity of proof, it is error for the trial court to instruct the jury on a fact situation in a manner wholly inconsistent with the stipulation. Allison v. Trustee, 140 Colo. 392, 344 P.2d 1077 (1959). In the absence of agreement between the parties affected, an issue cannot be resolved against one of them by the order made upon the pre-trial conference. Marsh v. Warren, 126 Colo. 298, 248 P.2d 825 (1952). Where there is nothing in the pre-trial or- der which contemplates judgment against certain individuals thought to be jointly and severally liable with the defendant and their liability is never an issue in the case, there is no error in the trial court’s failure to enter a joint judgment to include them. Lewis v. Martin, 30 Colo. App. 342, 492 P.2d 877 (1971). Under this rule witnesses not listed at the pre-trial conference have been permitted to testify, and documents not listed in the pre- trial order have been admitted into evidence where such modifications of the pre-trial order were necessary to prevent injustice. Francisco v. Cascade Inv. Co., 29 Colo. 516, 486 P.2d 447 (1971). Wide discretion is vested in trial court to allow nonlisted witnesses to testify. As pur- pose of such pre-trial disclosure of witnesses is to enable all parties to prepare for trial, wide discretion is vested in the trial court to deter- mine whether a witness who has not been listed on the pre-trial order and whose name has not been disclosed to the opposing party may tes- tify. In re Estate of Gardner, 31 Colo. App. 361, 505 P.2d 50 (1972); Wood v. Rowland, 41 Colo. App. 498, 592 P.2d 1332 (1978). The failure to list surveillance films and the surveillant at the pre-trial stage, or to make them known prior to trial, does not mean that the defendants are conclusively prohibited from having the desired evidence admitted, but are simply taking a risk that the trial court in its discretion might refuse to modify the pre-trial order. Crist v. Goody, 31 Colo. App. 496, 507 P.2d 478 (1972). Such a modification will be refused unless it is determined by the court to be necessary ‘‘to prevent manifest injustice’’. Crist v. Goody, 31 Colo. App. 496, 507 P.2d 478 (1972). Where no actual prejudice would result by the admission of additional exhibits, the court should permit a modification of the list of exhibits in the pre-trial order and the admis- sion of the exhibits in evidence in order to prevent manifest injustice. Francisco v. Cascade Inv. Co., 29 Colo. App. 516, 486 P.2d 447 (1971). Where a document is not within the pur- view of the pre-trial order, but is in the pos- session of the defendant before the trial, it would be impossible to conclude that there is any prejudice incident to its reception in evi- dence. Landauer v. Juey, 143 Colo. 76, 352 P.2d 302 (1960). A change in counsel is not sufficient in and of itself to justify vitiating a pre-trial confer- ence order. Harris Park Lakeshore, Inc. v. Church, 152 Colo. 278, 381 P.2d 459 (1963). A ‘‘local’’ rule of a district court relating to pre-trial procedure requiring counsel to ap- prove a pre-trial order as to form and content is neither contrary to, in conflict with, nor in excess of authority granted by this rule. Albright v. District Court, 150 Colo. 487, 375 P.2d 685 (1962). Provision of local rule does not deny a party due process. The provision of a ‘‘local’’ rule requiring attorneys to approve a pre-trial order as to substance as well as to form does not deny a party due process of law. Albright v. District Court, 150 Colo. 487, 375 P.2d 685 (1962). The approval of the ‘‘substance’’ of a pre- trial order under a ‘‘local’’ rule of court is neither an approval by counsel of the legal effect of the order nor of the application of substantive law which may appear in said pre- trial order, but rather, is an approval only of a recital of what transpired at the pre-trial confer- ence. Albright v. District Court, 150 Colo. 487, 375 P.2d 685 (1962). Where the procedures prescribed in a ‘‘lo- cal’’ rule of a district court are in lieu of a pre-trial conference, the district court has the same power to modify a list of exhibits and other documents prepared pursuant to the local rule, as it has to modify a pre-trial order. Fran- cisco v. Cascade Inv. Co., 29 Colo. App. 516, 486 P.2d 447 (1971). The provision of a ‘‘local’’ rule does not preclude review by writ of error of matters duly objected to or reserved matters ruled upon a pre-trial conference. Albright v. District Court, 150 Colo. 487, 375 P.2d 685 (1962). Trial court did not err in basing its dam- ages award upon a second stipulation be- tween the parties as to the amount of monthly rental loss even though the amount conflicted with amount specified in trial man- agement order where stipulation entered into after entry of order. Razi v. Schmitt, 36 P.3d 102 (Colo. App. 2001). Applied in Brown v. Hollywood Bar and Cafe, 942 P.2d 1363 (Colo. App. 1997). IV. TRIAL MANAGEMENT ORDER. Failure to include a claim for attorney fees in the trial management order is not a waiver of the claim. Attorney fees are neither costs nor damages, but a hybrid of each. Roberts v. Adams, 47 P.3d 690 (Colo. App. 2001). A party is not required to call each witness on its witness list. Sovde v. Scott, 2017 COA 90, 410 P.3d 778. Trial court did not abuse its discretion when it permitted defendants to withdraw their expert witnesses. Defendants did not have an obligation to make expert witnesses available at trial to testify because defendants had designated them as ‘‘may call’’ witnesses, not ‘‘will call’’ witnesses. Sovde v. Scott, 2017 COA 90, 410 P.3d 778. Court applies a balancing test to deter- mine whether a party may call opposing par- ty’s withdrawn expert. There is a presumption that a party may not call opposing party’s with- drawn expert witness unless that party timely endorses the opposing party’s expert. The bal- ancing test weighs whether the expert’s testi- mony would be cumulative; whether exclusion would result in unfair prejudice; and whether the opposing party failed to endorse its own expert. Sovde v. Scott, 2017 COA 90, 410 P.3d 778.