My SO has been contacted to be a witness in a lawsuit between a company and a construction contractor. My SO has never been employed by either company, and wasn’t involved in the construction. He used to work for a company that was called in by the building owner, to try to fix things after the contractor was gone. No work was done by my SO’s employer, but he did inspect the building and the equipment. My SO has since left that employer.
So what is my SO’s obligation in this case (not counting “The truth, the whole truth and nothing but the truth”)? The trial is about 600 miles away from our house, and he will be required to take vacation time to attend the trial. Can we assume that someone involved in the case will be covering his travel expenses? How about paying for his time?
I have been a witness many times in my life…but have never actually had to go to the courthouse. What usually happens is you are contacted by one of the lawyers who asks you many questions. If they like what they hear, they will ask you to attend a meeting (location was convenient) where they ask you a bunch of questions where it is recorded and you are sworn. Never has the ‘opposing’ attorney even been there. They were over quick.
Sometimes the opposing attorney calls and asks questions.
I imagine this will happen with the OP’s SO and if you are required to go to the trial then expenses will be covered…I don’t know. If it wasn’t, I think I would refuse to go.
The procedure described by BlinkingDuck is a Deposition.
Whoever it was that told your SO to go, what could be wrong with asking them about covering the expenses and the salary? And if they say they aren’t paying, make sure to ask if there’s any penalty for not showing up – I can’t help wondering if there might be any Contempt Of Court violations.
Has he been subpoenaed? If not, then none (yet). Usually, there is no obligation to recompense a witness outside of the minimal amounts provided for by statute ($20 plus mileage ($0.20) here in Illinois). However, since you state that the trial is taking place 600 miles away, you are likely not a resident of the forum state and this adds an additional wrinkle. Depositions can be held out of the forum state, trials obviously cannot.
Lawyers usually like having cooperative witnesses though, and they typically will either pay the expenses of a witness they really would like to testify at trial or they will dispense with calling the witness at all (the more likely outcome).
(Oh, sure, if he has signed an agreement to serve as an expert witness, there will be some contractual obligations there. But of course, were that the case, travel and consulting fees would have been worked out.)
It appears from the OP that one of the lawyers called and asked your SO to be a witness. Typically the first thing to do is talk to them and ask what they’re expecting. They might just have questions, they might want you to sign a declaration, they might want to schedule a deposition, and they might want you to testify. The lawyer understands this is an imposition, and therefore he has good reason to make it easy on you. At the same time, you need to understand that this lawyer is presumably working for one side of the case.
At the end of the day, the court is entitled to every man’s evidence. So if you are subpoenaed, you cannot just ignore it. But at the same time, courts are very aware of the burden they place on witnesses, especially witnesses who are far away.
At the end of the day – 1) TELL THE TRUTH. ALWAYS. 2) Don’t angle for a payout, but it’s not inappropriate for someone to cover major expenses if they’re depending on your testimony for their benefit.
Thanks for the reponses. So far, there has not been a subpoenaed. The lawyers that contacted my SO did mention that if it would be easier for him to get time off, they would get one. It hasn’t been an issue with his employer, so my SO hasn’t taken them up on that offer. There has already been talk of having my SO travel to Indiana (location of the lawsuit) some time later in June.
He is a little leery of asking about payment on this one. Is being compensated for transportation/meals/lodging different then being compensated for time off of work. We were wondering if in doing so, he would get moved into a new catagory, maybe something that would place him under some sort of liability. Worse then losing 2 vacation days would be to be paid for them, and then have the defendent/contractor come after my SO with some form of retaliatory lawsuit.
If your SO is offered reasonable accommodation (economy round trip travel, Holiday Inn Express, $40/day meals…) then it is unlikely that he will be a target for retaliation.
If your SO is picked up by a bevy of Hooters girls in a limousine, given Moet and Caviar all the way there, put up in the best hotel in the state, and given free meals 6 times a day as well as a $1000 per diem… well, someone might be more questioning.
This is an interesting question. IANAL, but I have always understood that one of the lynchpins of our legal rights is the right to subpoena witnesses and compel their attendance, whether the matter is criminal or civil. The testimony of a key witness, even one who lives 1000 miles away, could be the hinge on which the case turns. Yet I can’t imagine that such a witness is routinely forced to testify at great personal expense. Do depositions always meet the needs of this situation, or if not, will the court go so far as to pay actually reasonable travel and per diem expenses?
If they really want you, thee’s a good chance that they’ll be willing to come to you to do a depo.
My neighbor is an attorney, and he’s frequently flying off to the other end of the state or to other states to depose witnesses. Sometimes I think the poor guy sleeps in hotel beds more often than his own.
Depositions of out-of-state witnesses can be had, with more of less procedural difficulty depending on the (witness’s) state. Formally, and in distinction to a trial subpoena, the deposition subpoena is issued under the authority of the witness’s state courts Under the Federal Rules of Evidence, deposition testimony, when the opposing had the opportunity and motive to cross examine the deponent, can be introduced under a hearsay exception when the deponent is not available to testify at trial. Being beyond the subpoena power of the trial court, as an out-of-state witness with less than minimal contacts with the forum state is, is considered unavailability.
Are you worried that if his testimony is not what the lawyers want, then they’ll retaliate? If so, then it doesn’t matter whether or not they’re paying – Start worrying, and maybe you should talk to the judge on the case too!
Your SO is under no obligation to do anything unless he is subpoenaed, via an appropriately issued and served subpoena, to attend a deposition or trial or to produce documents or other stuff. He doesn’t even have to talk to anyone’s lawyer on the phone. If he is served an appropriately-issued subpoena, he must do what the subpoena says because it is an order of the court. All parties involved will/should have a lawyer at any deposition.
We always sent the reimbursement check (made out to both the witness and the lawyer doing the subpoenaing) with the subpoena. That way the witness knew s/he’d get paid if s/he showed up, and if s/he didn’t show, the check could not be cashed.
This is not legal advice. I am a lawyer, but not your lawyer. I do not represent you or anyone else at this time. I do not know you or even where you live. I am probably not even licensed to practice in your state. This is simply information freely offered from a stranger on an anonymous message board.
Well, thing is, he wouldn’t be incurring in those expenses if he hadn’t been called as a witness; in fact, he wouldn’t even have asked for those days off, reserving them for real vacation instead. The idea isn’t that he’d be paid to testify, but that he’d be compensated for the (in this case minor) distress caused by having to testify. It’s the same as when your employer pays for plane tickets: they’re not sending you on vacation and it’s not a perk or a bribe, it’s an expense of time and money that they need your SO to incur and that he wouldn’t incur without their need. You can afford the expense, but what if his boss refused to let him take those days off? Is he losing income? What if he was?
And if a subpoena hasn’t been issued, he’s doing it voluntarily (which saves the lawyers time and money).
We’re not worried about the lawyers. My SO is going to tell the truth about what he saw at the site. The worry is, if my SO is compensated for his time, as opposed to just for his expenses, does that move him into some catagory of paid expert or consultant, and out of witness. And if he is catagorized as a consultant or expert, does that open him up to a counter suit, if the defendant/contractor loses, and decides to take it badly. Example, the contractor is found to have not met the terms of the contract, and is required to pay damages. The contractor decides to sue my SO, claiming that is testimony led to losses for the contractor.
Nava, the whole “What is my vacation time worth?” thing is part of the problem. If I donate my time to repair a church roof, I can claim materials as a deduction, but not my time. If I donate the money to hire someone to repair church roof, I can claim the money as a donation. So obviously, time does not equal monetary value in all cases. As for losing income? He could, if he wanted to, take the time as unpaid leave instead of vacation. That would result in lose of income.
That’s not really how it works. Your SO is either called as a fact witness (I saw this, I did that, here is the story of what I personally perceived and experienced) or as an expert (I am not testifying from personal knowledge of the facts of the case, but from my review of the case file and discovery, here is what my advanced professional/academic training leads me to infer). Being paid or unpaid does not turn a witness into a fact or expert witness.
Your SO cannot lie of course; that would be perjury and expose him to criminal and civil penalties. He doesn’t really have duties beyond that. He couldn’t; it is the lawyers, not your SO, who will direct the witness examinations. Some witnesses don’t always realize that.
The ethics opinions I have read do not forbid the practice of compensating fact witnesses for forgone earnings due to testifying at trial; however, they do observe that a lot of people are not entirely comfortable with it and that at common law the practice was forbidden. It creates the appearance of suborning perjury, and opposing counsel will definitely draw the fact-finder’s attention to the payment arrangement. I don’t think many attorneys would go to the trouble of doing all this when:
[ol]
[li]compulsory process is compulsory (to coin a meme), they don’t actually need to pay you anything beyond the nominal statutory witness fee and mileage to get you to come (although they would prefer a cooperative, voluntarily-appearing witness), and[/li][li]if you are beyond the reach of the court’s jurisdiction–because you are out-of-state, say–you can hold a deposition in the witness’s locale and then introduce that testimony at trial.[/li][/ol]
Non-attorney here; party to many a medical tort as an expert witness and on one occasion as a fact witness for one of my patients.
There is no obligation for anything without a subpoena, as far as I know.
The attoryneys who called you will find a way to sound out what your SO’s opinions are. No good attorney is going to want to call–or pay expenses for–a hostile witness. If they do subpoena the SO it will be because they think it will help their case, and I’ve never seen a substantial witness get put on the stand without having first given a deposition–perhaps that’s unique to medical torts. Attorneys don’t seem to like asking questions in court unless they already think they know what the witness is going to say.
If SO is subpoenaed, appropriate minimum compensation is time and travel expenses. Time for any prep; time for travel; travel expenses. I don’t know if there is any method of coercion to get this, but it’s what’s fair, and most attorneys will pay it to avoid risking making a witness hostile to their case. Obviously SO’s ethical obligation is to simply tell the truth, but as a practical matter a witness ponying up money and time to help someone else’s case is less likely to be a valuable witness.
This is not a suggestion for extortion, but it is a suggestion that SO not bear the burden to save or make someone else money in a tort.
Here’s a cute little aren’t-attorneys-wonderful story for ya:
A patient of mine was on a drug which had confusion listed as a possible side effect. He was in a collision with a car with four occupants. Four days later, after consulting with their attorney, all four occupants ended up in the ED with neck pain, and all four sued my patient. Plaintiff’s attorney wanted me to give a dep stating that my patient was on the drug and it could have made him confused, rendering him the most likely person to have caused the accident. Attorney questioned me about my fee for testifying. $50/hr (this was a while back…).
Attorney comes out and gets my dep. Doesn’t like my testimony. I send him a bill for $100. Sends a letter back: Dear Dr Pedant, While I may have inquired as to your fees I did not agree to pay them. We will not be compensating you for your testimony. Regards, Shyster.