The stresses of trial are many for those attorneys who try cases. One particular demon that keeps trial lawyers up at night is the worry that key witnesses, particularly non-party fact witnesses, will refuse to cooperate or honor subpoenas requiring their testimony at trial. Some witnesses claim that they are too busy, too important or can’t afford to lose the time from work to appear at trial.
What may a trial lawyers ethically do to secure important trial testimony from a non-party fact witness? Just how much may the trial attorney “reimburse” a fact witness for the claimed cost and expense of appearing at trial? Can such fees become so unreasonable that a witness’s testimony may be precluded or stricken as irrevocably tainted by undue influence or bias?
The New York Court of Appeals decided this thorny issue in Caldwell v. Cablevision Systems Corporation, taking a balanced approach to the problem. In Caldwell, plaintiff claimed to have tripped and fallen while walking her dog due to the negligent construction work performed in the area by the defendant. In response, the defense lawyer subpoenaed the emergency room physician who spoke with plaintiff when she first sought medical treatment and documented in his note that plaintiff “tripped over a dog while walking last night in rain.” The problem arose when it turned out that the doctor was paid $10,000 for his short appearance in the courtroom with little discussion about how the attorney or the witness arrived at that significant sum.
The trial court gave plaintiff’s attorney substantial leeway in exploring the size of the payment during both cross examination and summation. Not surprisingly, the jury found the defendant negligent but that such negligence was not a proximate cause of plaintiff’s accident. On appeal, plaintiff sought a bright line ruling that the payment of a $10,000 witness fee rendered the doctor’s testimony inadmissible as a matter of law.
The Court of Appeals was troubled by the size of the witness fee and its potential to influence the doctor’s fact testimony. It noted that the statutory, minimum fee for subpoenaed witnesses was a $15 appearance fee and .23 per mile for travel expenses. However, the court rules and relevant case did not forbid witness fees in excess of the statutory minimum where they reimburse a witness for “actual expenses and reasonable compensation for lost time.”
In sum, the court permitted the challenged testimony to stand with the caveat that in future cases the trial judge should specifically charge the jury that it may consider whether a witness fee is “disproportionately more than what was reasonable for the loss of the witness’s time from work or business,” and, if so, whether the payment “had the effect of influencing the witness’s testimony.”
Justice may be blind but it is rarely cheap.
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