## Facts

- Just In Case Business Lighthouse, LLC (JIC), owned by Joseph Mahoney, entered into two agreements to assist Pearl Development Company in preparing for sale in exchange for consulting fees and a contingent commission if a sale occurred during specified periods.
- While the second agreement remained in effect, Pearl and Epic Energy Resources, Inc. executed a letter of intent for Epic to purchase Pearl without Mahoney’s knowledge.
- Patrick Murray, then Pearl’s president, discussed terminating JIC’s agreements with Mahoney but did not disclose the letter of intent; Mahoney recorded two calls with Murray that later supported JIC’s fraud theory.
- JIC and Pearl executed a termination agreement providing JIC $100,000 and excluding any commission if Pearl sold to Epic or other listed entities; Pearl later sold to Epic.
- JIC sued, alleging Murray and others induced the termination agreement by misrepresenting or concealing Epic’s specific intent to buy Pearl, and sought damages including the alleged commission (offset by the $100,000 payment).
- For trial preparation, JIC retained Preston Sumner, a nonlawyer businessperson, as a litigation advisor in exchange for a 10% interest in the case’s outcome.
- Sumner helped organize documents and prepared summary charts, including a timeline and a “Things Mahoney Knew / Did NOT Know” chart.
- At trial, over objection, the court permitted Sumner to testify only as a summary witness and admitted the charts as CRE 1006 summaries; the jury returned a verdict for JIC on the fraud claims against Murray.

## Issues

1. Whether an improper contingent compensation arrangement for a witness under Colorado Rule of Professional Conduct 3.4(b) requires exclusion of the witness’s testimony as a matter of law.
2. Whether a trial court may allow a non-expert summary witness lacking firsthand knowledge to present summary testimony and charts under CRE 1006.
3. Whether the trial court abused its discretion by (a) declining to exclude Sumner as a sanction and (b) admitting his summary testimony and exhibits in a document-intensive case.

## Decision

- The Colorado Supreme Court held that a violation of Rule 3.4(b) does not automatically require exclusion of the witness’s testimony.
- The Court ruled that evidentiary admissibility remains governed by the Colorado Rules of Evidence, including trial-court discretion under CRE 403.
- The Court concluded the trial court did not abuse its discretion in allowing Sumner to testify as a summary witness despite the contingent-interest arrangement.
- The Court held the summary exhibits were properly admitted under CRE 1006 in light of the volume and complexity of the evidence and the availability of cross-examination and challenge.
- The Court reversed the appellate court’s limited remand for consideration of striking Sumner as a sanction and affirmed the judgment entered on the jury’s verdict for JIC.

## Legal Principles

- The Colorado Rules of Professional Conduct regulate attorney conduct and do not, by themselves, dictate evidentiary exclusion; alleged ethical violations do not displace application of the Colorado Rules of Evidence.
- When a witness has been improperly compensated, the trial court retains discretion under CRE 403 to determine admissibility and to consider alternatives to exclusion (e.g., impeachment, limiting instructions, sanctions against counsel, or disciplinary referral).
- CRE 1006 permits charts, summaries, or calculations of voluminous evidence when the underlying materials are admissible and available to the opposing party, and when the summary will assist the trier of fact.
- Summary evidence must remain tethered to the admitted record; a summary may reflect a party’s theory but cannot function as argument untethered from the underlying evidence.
- Appellate review of evidentiary rulings on summary witnesses and summary exhibits is for abuse of discretion.

## Conclusion

The court affirmed the fraud judgment, holding that improper contingent compensation for a summary witness does not compel exclusion and that admitting summary-witness testimony and CRE 1006 charts in a complex, document-heavy case fell within the trial court’s discretionary authority under the rules of evidence.


Murray v. Just In Case Bus. Lighthouse, LLC, 374 P.3d 443 (Colo. 2016)