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United States of America > New York > Litigation Dispute resolution > Advisory > Article > You’re Being Paid How Much?! New York Clarifies Standard for Issuing Witness Bias Charge

Article: You’re Being Paid How Much?! New York Clarifies Standard for Issuing Witness Bias Charge

A troublesome issue that arises with some regularity in commercial litigation is how to deal with a non-party fact witness who wants to be compensated for his or her time and expenses. Although there is a general prohibition on paying for testimony or conditioning payment on a particular outcome, the CPLR does provide that a subpoenaed fact witness shall receive attendance fees and travel expenses. See CPLR § 8001. While a witness may also receive reasonable compensation for the time lost, there is little guidance on how to address a situation where a fact witness has received an unreasonable amount of compensation.


Recently, the New York Court of Appeals had the opportunity to address this issue. In Caldwell v. Cablevision System Corporation, 20 N.Y.3d 365 (2013), the Court was called upon to decide whether the testimony of a subpoenaed fact witness was inadmissible as a matter of law when that witness received a fee that was disproportionate to a reasonable measure of compensation for time lost. The court held that such testimony was not inadmissible as a matter of law and that it should be dealt with by cross-examination and summation, and, upon request in the appropriate case, a specific charge relating to the witness’ potential bias in light of the disproportionate fee. Specifically, the Court held that when the party who subpoenaed the witness provides no explanation for a fee that “is seemingly in excess of reasonable compensation for lost time and incidental expenses,” if a timely objection is raised, the trial court must give the jury a specific charge as to that witness’ potential bias.


In Caldwell, plaintiff injured her leg after purportedly stepping into a ditch dug by Communications Specialists, Inc. (CSI), a contractor working for defendant Cablevision. In the subsequent negligence action against CSI and Cablevision, CSI subpoenaed the physician who had treated plaintiff on the night of her accident. In his notes from that night, the physician noted that plaintiff had “tripped over a dog while walking last night in the rain.” Interestingly, the physician was only asked to confirm that the notes he made while treating plaintiff were accurate. However, on cross-examination, plaintiff’s attorney forced the physician to admit that CSI had paid him $10,000.00 for his testimony. No professional opinion or expert analysis was sought by either side. Rather, the physician simply stated that he had appeared to “testify to my records.” Id. at slip. op. 3.


Prior to summation, plaintiff’s counsel requested that the trial court issue a jury charge that CPLR § 8001(a) only allows fact witnesses to be paid $15.00 per day and $.23 per mile traveled. Defense counsel responded that CPLR § 8001(a) provides the minimum on what a fact witness must be provided. The trial court issued a general bias charge and did not make any specific reference to the $10,000.00 fee that CSI paid to the physician. The jury eventually found that CSI had been negligent, but that its actions were not a “substantial factor” causing plaintiff’s injury. Despite holding that the trial court had erred by not properly charging the jury as to the physician’s questionable credibility in light of his disproportionate fee, the Appellate Division, First Department, found the error harmless and affirmed. Id.

In affirming the First Department’s ruling, the Court of Appeals first noted that an exorbitant payment to a fact witness can create the impression that the witness’ testimony has either been bought, or at the very least influenced, by those high fees. While CPLR § 8001(a) provides the statutory minimum that must be paid to a subpoenaed fact witness, it does not follow that an attorney may pay whatever fee that witness demands. Instead, New York precedent and ethical rules dictate that fact witnesses should be provided with “reasonable compensation.” Id. at slip. op. 4.


While no one alleged that the physician had been paid in exchange for favorable testimony, and, in fact, it was clear from the record that the he testified consistently with his contemporaneous notes, the Court noted that the “distinction between paying a fact witness for testimony and paying a fact witness for time and reasonable expenses can easily become blurred.” Id. at slip op. 4. Therefore, “[a] line must . . . be drawn between compensation that enhances the truth seeking process by easing the burden on testifying witnesses, and compensation that serves to hinder the truth seeking process because it tends to “influence” witnesses to “remember” things in a way favorable to the side paying them.” Id. at 4 (internal citations omitted).

The Court held that, although it is within the trial court’s discretion to determine whether a bias charge is warranted, under these circumstances, a charge that specifically addressed CSI’s payment to the witness was appropriate, especially because CSI did not even attempt to justify its payment of $10,000 for one hour of testimony. Thus, the trial court should have instructed the jury that, while fact witnesses may be compensated for their time, the jury must evaluate whether the compensation was disproportionately more than was reasonable given the loss of the witness’ time away from work. If the jury finds that the compensation was disproportionate, it must then consider whether the payment had the effect of influencing the witness’ testimony.

“Additionally, it is within the trial court’s discretion to determine whether the charge is warranted in the context of a particular payment to a witness, and to oversee how much testimony should be permitted relative to the fact witness’s lost time and other expenses for which he is being compensated.” Id. at slip. op. 4-5.
This decision provides good authority on legal and ethical issues that have been frustratingly opaque. Going forward, when a subpoenaed fact witness is called to give adverse testimony, counsel should not simply consider cross-examining that witness regarding his or her fee (and preparing the necessary summation), but when the fee seems excessive, consider requesting a specific jury charge as to the witness’ fee. One does wonder, of course, if there will ever be a circumstance in which a trial lawyer does not view the fee paid to an adversary’s non-party fact witness as not being excessive. Moreover, the possibility of a specific jury charge of bias should be considered when counsel is negotiating over the witness’ appearance fee. If the witness is aware that his or her testimony and credibility may be challenged if a fee is considered excessive, it may help keep the witness’ fee down or perhaps do away with the fee altogether.

Last Update: 2013-Apr-12 Charles E. “Trip” Dorkey III - Dentons
The contents of this page do not constitute legal advice or create an attorney- client relationship with the contributor. Do not apply anything you read here without contacting a professional.
Author: Charles E. “Trip” Dorkey III
Law Firm: Dentons
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