“Your time is up.”
“But, your honor, I have three more witnesses I want to call.”
“As I told you before, we are getting this done today. I gave you each ninety minutes. That’s more than enough. I will enter my ruling now.”
“Your honor, may I make a closing statement?”
“No, you may not. I am going to forgo closing statements. Sit down.”
If you heard these words at your trial, and lost the case in large part because you were unable to present all of the evidence you wanted to present, then you may have grounds for an appeal.
On the one hand, it’s important that the district court balance its busy docket, but it’s just as important that the parties in any case be given appropriate time to present their evidence. The right to be heard is a basic due process right.
In the case In re the Marriage of Goellner, 770 P.2d 1387 (Colo. App. 1989) the Colorado Court of Appeals established just how important the right to enough time to be heard truly is. In that case, the trial court granted each party six hours to present evidence.
The Father in this dissolution of marriage action presented his case in five hours, but Mother was forced to use up approximately five and one-half hours in cross-examination of Father’s witnesses.
Mother knew that this would not be enough time. She still had not testified or brought forth any of her own witnesses. She requested additional time to present her witnesses, but the court denied her request. Her counsel moved for a continuance in order to present essential testimony, or, in the alternative, a mistrial. The court denied both motions. As a result, Mother simply had to move on to her case in chief without having a chance to present any of her own evidence.
The court ruled on child custody and the much-contested property division without hearing Mother’s evidence, but Mother was not ready to just give up. She appealed the case on the basis that the trial court violated her constitutional due process rights. She protested that she was not afforded the right to a full and fair hearing.
The Court of Appeals agreed, saying that “The opportunity to be heard, an inherent element of due process, must be granted at a meaningful time and in a meaningful manner.” The judgment was reversed and the case was remanded to the district court for a new trial on all issues.
In the Goellner case, both sides were allowed six hours to present their evidence. Nonetheless, the court was still found to be in the wrong for refusing to allow Mother additional time to present evidence when she requested more time. Were you denied enough time to present your evidence before the court? If so, you may have grounds for an appeal.
Now, to determine if you can appeal on the grounds established in Goellner, it’s important that you consider a few important factors. First of all, did you or your counsel verbally object to the amount of time provided to you? What about in writing? Did you request additional time? After requesting additional time, did you or your attorney then say, “no, actually this should be enough time?”
Issues not raised to the attention of the district court may not be raised for the first time on appeal, neither can new evidence be presented. This means, for example, that if you did not tell the district court about some incriminating email that you had from the opposing party you may not bring it up for the first time before the Court of Appeals. Therefore, any issue you intend to bring to the attention of the Court of Appeals must be one that was “preserved” in the lower court.
To put it in simpler terms, if you are going to argue that the trial court did not give you enough time to present your evidence then you need to make sure that you told the judge in the trial court this as well. You, or your attorney, may have filed a motion requesting additional time, or perhaps at the hearing you, or your attorney, objected to the limited amount of time allotted to you. This is absolutely essential to using the Goellner case on appeal.
If there was no objection raised to the amount of time allotted, and no motion or request for additional time was filed, then it doesn’t matter if the district court cut your time down to half an hour; the issue is not preserved. The Court of Appeals will not hear it.
Don’t assume that simple, off-handed comments by either you or your counsel such as, “Looks like we don’t have enough time,” will preserve the issue either. In order for the Court of Appeals to consider the issue of time you need to directly request additional time from the district court, and the district court needs to have denied your request.
Furthermore, while it does not preclude you from raising the issue in the Court of Appeals, telling the court, “Nevermind, that should be enough time,” or something to that effect, may hurt your argument that the court did not allow enough time to present your evidence. The other side can, and is likely to, use your own words against you if you in any way and at any point agree to the amount of time allotted. This does not mean that the case is lost, but it will make any possible appeal that much more difficult. In appellate cases the odds are already somewhat stacked against the appellant, you don’t need more obstacles in your way.
Based on this, do you think you have an issue regarding time to bring before the Court of Appeals? Did a judge cut you off and refuse to allow you to present your evidence? If so, contact Attorney Anne Whalen Gill to start the appeals process.