Witness Fee Jeopardizes Defense Verdict (N.Y.)

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.

If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com

Facebook Discovery Permitted in New York

Social network data is the new frontier of pre-trial discovery.  Our adversaries upload, download, tweet and post.  For some unexplained and seemingly generational reason, some people are almost compelled to share intimate details of their personal lives through their use Facebook, MySpace or Twitter.

The goal of obtaining Facebook data is easy to state but harder to implement.  The courts balance the need for material and relevant information of one party against the expectations of privacy of the other.

In D’Agnostino v. YRC Inc., the defendant developed a sound plan to obtain plaintiff’s social media postings.  Rather than serve an early document demand seeking all of the plaintiff’s Facebook postings, the defense attorney first deposed plaintiff and gained valuable admissions that plaintiff routinely posted concerns about her feelings and emotions both before and after her accident.  Once the trap was laid at plaintiff’s deposition, the defense attorney sprung into action and demanded all plaintiff’s social media postings and photographs concerning any mental, emotional or physical condition suffered by plaintiff regardless of whether posted by her or others before and after her accident.

In a well reasoned opinion, the court held that plaintiff put her physical and mental condition in issue when she filed her lawsuit. Further, plaintiff admitted that she routinely posted about her feeling and emotions on Facebook.  Accordingly, the court ruled that the defendant satisfied the two prong test for obtaining an opponent’s social media postings by: (1) specifically identifying what material was sought; and (2) establishing a factual predicate for seeking such evidence.

D’Agostino is hardly the last word on the discovery of social media postings in New York. It is an important lens into how the trial courts are dealing with discovery in this area and provides a practical roadmap to how a defense lawyer can lay the proper foundation to obtain this valuable discovery.

If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com