(specially concurring).
{14} I reluctantly concur. I agree that the majority’s opinion is a fair statement of the law, that our statutes, rules, and precedent do not authorize the district court to award expert witness fees as costs when the expert does not testify by deposition or at trial. Although I would prefer to interpret NMSA 1978, Section 38-6-4(B) (1983, as amended through 2001), as allowing a more discretionary role for the trial judge in awarding costs, I do not think Dunleavy v. Miller, 116 N.M. 353, 862 P.2d 1212 (1993), and Gillingham v. Reliable Chevrolet, 1998-NMCA-143, 126 N.M. 30, 966 P.2d 197, provide sound authority for this conclusion. Rather, our cases have strictly interpreted Section 38-6-4(B) as not authorizing expert fees as costs unless the witness qualifies as an expert and testifies by deposition or at trial. See Pierce v. State, 121 N.M. 212, 231, 910 P.2d 288, 307 (1995) (not allowing costs for expert witnesses who did not testify but submitted affidavits in support of a motion for summary judgment); Jimenez v. Found. Reserve Ins. Co., 107 N.M. 322, 327, 757 P.2d 792, 797 (1988) (not allowing fees as costs for two experts who did not testify but attended a hearing that was vacated). I write separately to express my concern that Section 38-6-4(B) provides an awkward fit for a plaintiff such as this who enters into a settlement agreement, particularly after being ordered by the district court to summarize the anticipated testimony of his expert witnesses. For policy reasons, I think our courts need a rule that provides trial judges with discretion to award costs even when parties do not engage in full-blown litigation.
{15} Our rule for an offer of settlement, which was formerly called the offer of judgment rule, directs that a party shall be awarded costs if the party makes an offer of settlement that is not accepted and later obtains a more favorable judgment. See Rule 1-068(A) NMRA 2005 (as amended 2003). While a cost award is mandatory under the conditions specified in Rule 1-068(A), it is subject to Rule 1-054 NMRA 2005, which now expressly limits expert witness fees according to Section 38-6-4(B). See Rule 1-054(D)(2)(g) (as amended 2000). Thus, parties who rely on the offer of settlement rule may only recover expert" witness fees as costs if the witnesses testify at trial or by deposition. Even though the purpose of awarding costs in Rule 1-068 is to provide additional incentive to settle, nothing in our rules allows parties to recover costs when they settle and avoid reaching more advanced stages of litigation.
{16} While I understand that our courts view Section 38 — 6—4(B) as limiting the district court’s discretion, I am concerned that this rigid approach in the context of settlement agreements may actually hinder the policy of reducing the burdensome cost of litigation. A party who has reasonably and necessarily incurred considerable expense in preparation for trial may choose not to accept an offer of settlement for the sole reason that the party has no chance to recover costs for expert witness fees, costs that might be prohibitive, short of going to trial.
{17} I see no harm in a rule that allows more flexibility by allowing costs for expert witness fees to be awarded within the trial court’s discretion for the work that went into reaching a compromise and avoiding litigation. Recognizing such discretion seems consistent with the legislative intent in Section 38-6-4 to allow additional compensation for expert witnesses beyond per diem and mileage expenses 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.” At present, that additional compensation is only allowed “for any witness who qualifies as an expert and who testifies in the cause in person or by deposition.” Section 38-6-4(B). This rule, therefore, only contemplates awarding costs at advanced stages of litigation and does not account for settlement agreements.
{18} By only allowing costs when a witness testifies by deposition or at trial, we may actually encourage litigation contrary to the intent of the Legislature and the policy of this Court. In Dunleavy, we observed that the district court should carefully scrutinize all costs submitted by the prevailing party “in the interest of ‘reducing insofar as possible the burdensome cost of litigation.’ ” 116 N.M. at 363, 862 P.2d at 1222. This same expression of policy should apply in settlement agreements. In my mind, allowing the district court discretion to award costs as part of a settlement is consistent with the policy of promoting offers of settlement, allowing liberal discovery, and discouraging litigation. “The district court’s exercise of sound judicial discretion in taxing expenses as costs thus should be informed by considerations of promoting economy in litigation.” Id.
{19} 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 aceomplish 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.
{20} 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.
I CONCUR: PETRA JIMENEZ MAES, Justice.