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Fernandez v. Espanola Public School District8/8/2005
iderations of promoting economy in litigation." Id.
For these reasons, though I agree that the majority's opinion that Section 38-6-4(B) as interpreted by our courts only authorizes the recovery of expert witness fees as costs when the witness has testified at trial or by deposition, I think considerations of promoting economy in litigation require giving district courts more discretion to award costs when parties enter into a settlement agreement. This Court could accomplish this goal by adopting a rule that would allow the district court discretion to award additional compensation to "include a reasonable fee to compensate the witness for the time required in preparation or investigation prior to the giving of the witness's testimony," Section 38-6-4(B), without requiring the witness to testify.
Rules should not be straight jackets that undermine an important policy goal to discourage and expedite litigation. We should allow room for judicial discretion in situations that involve alternatives to litigation, which I contend are exceptional situations not contemplated by the Legislature in Section 38-6-4. Section 38-6-4 only addresses trial-type situations and is out of synch with our offer of settlement rule. If the only way we allow costs is by going to trial, then we circumvent exactly what we encourage in the offer of settlement rule. I believe the district court, if given discretion, is in a good position to make an honest assessment of the work that went into reaching a compromise. We need a rule that allows more play in the joints instead of dictating that the only way district courts can award costs is by nothing short of trial.
RICHARD C. BOSSON, Chief Justice
I CONCUR:
PETRA JIMENEZ MAES, Justice
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