Posted by: Steven Skolnik
June 26, 2006

Recently a question arose as to whether it is permissible to compensate a witness for her testimony, particularly, where, as in our case, we believe that the prospective witness is not employed. Opinions of the New York State Bar Association say that it is permissible to compensate an unemployed witness for her time in testifying because a loss of time spent preparing to testify, and testifying, is compensable but there is no standard yet for valuing a witnesss time.

Under New York Disciplinary Rule 7-109, a lawyer may pay, among other things, the reasonable compensation to a witness for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel.

A recent New York State Bar Association opinion, Opinion 668 from 1994, states that it is reasonable to compensate a witness for loss of time in testifying, even if that person is unemployed; in other words, your free time has a value and lost wages is not necessarily the measure of loss of time. Quoting Opinion 547 from 1982, the opinion states: A witness who loses wages because of his or her role as a witness may be reimbursed for the money lost. A witness who is unemployed, self-employed, or on salary, also may be compensated since even "recreation time is susceptible to valuation." Id. A witness who is reimbursed for loss of free time, or does not lose money as a result of the role as a witness, is still entitled to compensation, but the amount should be given "closer consideration" than it is when the witness is being reimbursed for lost wages. Id. Thus, "reasonable compensation" is not merely out-of-pocket expenses or lost wages.

What is the market value of the unemployed witness's time? A later opinion, Opinion 714 from 1999, states in footnote 1 that there is no consensus on how fact witnesses are to be paid and there is a dearth of judicial decisions on the subject, so there seems to be no answer yet as to the market value of a witnesss time in general, let alone the value of an unemployed witnesss time.

(The American Bar Association Rules do not add anything new: Rule 3.4 just says that "A Lawyer shall not (b) falsify evidence or assist a witness to testify falsely, or offer an inducement to a witness to testify that is prohibited by law." The Comment says that it is not improper to pay a witness's expenses on terms permitted by law.)

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Compensating an unemployed witness for testimony under the New York Code of Professional Responsibility

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