Page 7 - Litigation

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Litigation | MONDAY, JULY 14, 2014 | S7

if the witness formerly was employed by your professional conduct rules to “disfavor compensation to of the case, or as an inducement to tell the a criminal trial, attacking the cooperating wit-
nonexpert witnesses for the time invested in preparing for testimony”). Counsel litigating in other states should
client’s litigation adversary, so long as the pay close attention to the particular jurisdiction’s legal truth.”16 Give strong consideration to memori- ness’ credibility on just these grounds—that
attorney is independent and acting for the and ethical limitations.
alizing the speciic terms in a writing, to avoid he has been incentivized through the reward
beneit and in the interests of the witness, 2. See 28 U.S.C. §1821(b) (2012); N.Y. C.P.L.R. 8001(a) any misunderstandings. The fact and amount or prospect of leniency (or remuneration) to
not your client’s.13
(McKinney Supp. 2014).
of the compensation almost certainly will be incriminate the defendant—is often one of the
5. Except in the rare circumstance when 3. 18 U.S.C. §201(d) (2012).
4. N.Y. Comp. Codes R. & Regs. tit. 22, §1200.0; see also disclosed down the road, and any efforts to strongest challenges to the government’s case.
such an offer is necessary to obtain the wit- N.Y. Penal Law §215.00 (McKinney 2010) (prohibiting any conceal such compensation may be met with If the defense were to compensate its own wit-
ness’ cooperation, DON’T offer to compen- person from conferring, offering or agreeing to confer judicial condemnation.17
nesses, that could seriously undermine this
sate a fact witness unless he or she broaches a beneit upon a witness under an agreement or under- 7. DON’T instruct the witness not to assist line of attack. Perhaps it is for this reason that
the matter. While the ethical rules arguably standing that the witness’ testimony will be inluenced).
or talk to your adversary. Attempting to pur-
5. Roy Simon, Simon’s New York Rules of Professional Conduct Annotated 890 (2013 ed.); see also ABA Comm. we found no reported criminal cases—and
permit an attorney to offer reasonable com- on Ethics & Prof’l Responsibility, Formal Op. 96-402 chase exclusive access to a witness may are aware of none—in which compensation
pensation to a witness,14 as a strategic mat- (1996) [hereinafter ABA Op. 96-402].
violate ethics rules that prohibit attorneys of defense fact witnesses was an issue.
ter, and to avoid any misperception on the 6. ABA Op. 96-402.
from interfering with a party’s ability to gather 10. Finally, no matter what kind of case you
part of the witness or a fact-inder as what 7. See Simon, supra note 5, at 888 (“[A] lawyer may not evidence.18
are litigating, in the rare circumstances when it
motivated the compensation, it is generally say to a witness: ‘If you come to New York City to testify, we will put you up in the Waldorf-Astoria for a week, pick 8. DON’T make the settlement of or indem- may make sense to compensate a fact witness
unwise for the lawyer to be the one to raise up the tab at the ive-star restaurants, and get you tickets niication of claims against the witness part for his or her time, DON’T pay the witness
the issue irst. Also, be especially wary of dis- to the Broadway shows of your choice.’”).
of the compensation for costs arising from a more than you would be completely comfort-
gruntled employees or former employees of 8. Centennial Mgmt. Servs. v. Axa Re Vie, 193 F.R.D. 671, witness’ testimony.19 Such compensation may
675 (D. Kan. 2000) (approving rate of $125 per hour for reviewing documents, $150 per hour for attending meet- able justifying to a regulator, judge or jury. If
your adversary approaching you and offer- ings and preparing for testimony, and $200 per hour for blur the critical line between the prohibited your matter has a substantial likelihood of
ing to provide damaging testimony on your testifying).
“paying a fact witness for testimony” and the ending up before a jury, remember that jurors
client’s behalf in exchange for compensation 9. Consol. Rail Corp. v. CSX Transp., No. 09-cv-10179, permitted “paying a fact witness for time and receive only minimal compensation for their
for their time. That will almost certainly be 2012 WL 511572, at *12-13 (E.D. Mich. Feb. 16, 2012) (rate reasonable expenses.”20
service (typically $40/day in federal and state
viewed as improperly paying a witness “for of $125 per hour was not excessive or unreasonable given that witness charged same rate to another party).
9. DO be extra cautious about compensat- court21) and are not compensated for lost time
his testimony.”15
10. Prasad v. MML Investor Servs., No. 04 Civ. 380, 2004 ing defense fact witnesses for their time tes- or wages. Think carefully about how jurors
6. DO carefully explain and make clear WL 1151735, at *5-7 (S.D.N.Y. May 24, 2004) (rate of $125 tifying at a criminal trial. It is of course true will react to one of your fact witnesses being
to the witness what she is and is not being per hour was not unreasonable given that it was equal that the government, unlike private litigants, paid a large sum of money in connection with
compensated for. Such a statement might be to what witness generally charged for his consulting ser- routinely induces witnesses to testify against
vices).
11. Caldwell v. Cablevision Sys., 20 N.Y.3d 365, 372 his or her testimony.
along the lines of: “You are being compen- (2013). See generally Michael J. Hutter, “Compensating a defendant and “compensates” them by offer- •
sated for your time preparing with or assist- the Fact Witness: Rules and Limits,” N.Y.L.J., Dec. 1, 2011, ing leniency in exchange for cooperation. It is ••••••••••••••••••••••••••••
ing counsel, and/or for your time testifying at 3.
also true that the government routinely pays 1. Some states outside New York follow the common
(including related travel time), but we are not 12. See also, e.g., Thomas v. City of N.Y., 293 F.R.D. 498 informants, and sometimes makes such pay- law rule of prohibiting any compensation to fact wit-
compensating you for, or contingent on, the (S.D.N.Y. 2013) (vacating judgment where plaintiff had agreed to pay key fact witness 20 percent of any recovery ments contingent on the impact of the infor- nesses. See, e.g., Pa. Bar Ass’n Comm. on Legal Ethics &
substance of your testimony, the outcome
and witness agreed to be held liable for » Page S11
mant’s testimony. However, for the defense at
Prof’l Responsibility, Informal Op. 95-126A (1995) (read- ing Pennsylvania witness compensation statute and

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