Compensating Fact Witnesses

Written By David P. Badanes, Esq. and Max Glick

There are two types of witnesses, “expert witnesses” and “fact witnesses”.  An expert witness is someone who has specialized knowledge about a subject.  Some examples of expert witnesses would be: a doctor; an accountant; a psychologist, an engineer etc.  A fact witness is someone who has knowledge about a specific fact or facts involving the case that is on trial.  In a divorce case, a fact witness is usually someone who has actually witnessed an event.

In New York, a fact witness is entitled to a minimum appearance fee of $15.00 per day plus a mileage expense.  However, it is permissible to also compensate a fact witness beyond the appearance fee.  Yet, compensating for a fact witness may not be a good idea, as it may raise several issues concerning the integrity of the witness’ testimony as well as the overall legality of the payment.

Despite what is commonly thought, in most divorce cases, there are few if any fact witnesses.  Nonetheless, if you are going to be a fact witness and you are requesting compensation, here are a few things you need to know:

1. Reasonable Compensation – Any compensation must be reasonable and fair. A good reference point is your hourly wages of your current or former job.
2. Be mindful of the optics – If there is going to be a jury (in New York, divorces are not heard before a jury), keep in mind that jurors are paid very little in exchange for their service nor do they receive compensation for lost wages. Therefore, payments received by fact witnesses may not be well received by a jury.  Even without a jury, if you are paid too much, a judge may not look very kindly on your testimony, as the judge may believe you are getting paid to say what your attorney wants you to say.
3. Disclosure – As a fact witness, your name and contact information must be disclosed to the opposing party’s attorney. The opposing party is also entitled to a short statement of what the fact witness will be testifying to.
4. Cannot be exclusive – It is unethical and improper to pay a fact witness for their exclusive testimony and to prevent them from speaking with the opposing party. Therefore, it is possible that the opposing party’s attorney may contact you.
5. Cannot be Coached – Your testimony cannot be “coached” or “directed.” If you are going to be a fact witness, the attorney can ask you what you saw (or heard), but cannot tell you what to say or how to say it.  Furthermore, the attorney cannot make your compensation conditional on what you will testify to.

If you are asked to be a fact witness, then you can ask to be compensated.  However, as seen you want to make sure that you don’t ask for too much compensation.  If you are involved in a divorce and you want to have a fact witness at your trial, remember that you may have to pay the fact witness.  David Badanes and the Badanes Law Office, P.C. has counseled many clients on the rules of compensating a witness.

If you are getting divorced or thinking about getting divorced on Long Island, contact David Badanes and the Badanes Law Office, P.C.  David Badanes and the Badanes Law Office’s can be contacted at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.  The Badanes Law Office has offices in Northport and Uniondale.

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