Consider the following scenario: Your trial starts in 30 days. At your trial preparation meeting with Smith, a key fact witness for you, she informs you that she wishes to be compensated for her time away from work and related out-of-pocket expenses, including travel, lodging, food and child care, due to her required courtroom presence. After agreeing to Smith’s request, you then meet with Jones, also a key fact witness for you. While Jones is retired, in light of Smith’s request you nonetheless offer to compensate Jones for his time and related expenses incurred in testifying at the trial, and Jones accepts your offer. Will these fact witness compensation arrangements subject you to any ethical complaint and/or cause any unfavorable consequences for you at trial?

Conventional wisdom is that traditional common law rules and ethical precepts flatly prohibit compensation to fact witnesses in excess of the “attendance fees” in the amount of $15 for each day of attendance at trial and travel expenses in the amount of 23 cents per mile, as permitted by CPLR 8001(a).1 However, in Caldwell v. Cablevision Sys. Corp., 86 A.D.3d 46 (2d Dept. 2011), the Second Department, in a thoughtful opinion authored by Justice Peter Skelos, held that such a view is not at all reflective of the current legal landscape in New York, but the present rules governing fact witness compensation beyond that permitted by CPLR 8001(a) are much more nuanced and varied than a blanket approval of such compensation arrangements.2

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