A Witness For The Prosecution

Submitted by patentadmin on Tue, 10/20/2009 - 19:16

Expert witnesses – witnesses who testify as to their “professional” opinions – may be paid for their testimony (actually, they won’t testify unless they are paid). Supposedly, they are paid for their time, the content of their testimony being (again, supposedly) unbiased (apparently because they are “professionals”).

Fact witnesses – witnesses who testify as to facts, i.e. what occurred, may not be paid for their testimony, as it is believed that this could prejudice their testimony (fact witnesses are generally not “professionals”).

All lawyers are supposed to know this. So, what is a lawyer to do when a purported fact witness shows up, offering very favorable testimony, but demanding to be paid? In a recent case, Rocheux International v. U.S. Merchants Financial Group, the Court made clear what a lawyer should NOT do.

The prospective witness, a disgruntled former employee of the defendant, contacted counsel for plaintiff, offering information about the accounting practices of his former employer. Apparently, he requested compensation before executing a declaration setting forth this “information.” Counsel agreed to pay the witness and thereupon identified him as an expert witness, although the time for identifying expert witnesses had passed. The witness never prepared an expert report.

When the facts came to light, at the deposition of the witness, the defendants moved to exclude his testimony, and sought to depose both the plaintiff’s president and attorney to determine whether sanctions were justified and whether the lawyer should be disqualified.

The Court granted the motion to exclude the witness’ testimony as “tainted” and awarded the costs of the motion to the defendants. The Court reserved judgment “on the need for additional sanctions or disciplinary action.”

THE LESSONS TO BE LEARNED: (1) Fact witnesses cannot be paid for their testimony; and (2) don’t assume that anything can be successfully hidden from opposing counsel (this applies in a lot of different circumstances).

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