Expert witnesses are hired guns. Therefore, they can and do
demand payment for their time spent preparing and attending their deposition.
But, can a fact witness be paid? In Cremeens
v. Cremeens, the Tennessee Court of Appeals said: Yes!
Cremeens is a
post-divorce custody case. The issue was whether a witness, who had been paid
by the husband, was an expert witness or a fact witness. If the witness was a
fact witness, his deposition testimony could be used as proof at the trial because
he lived in another state; therefore, the witness was “unavailable.” If the
witness was an expert witness, the deposition testimony could not be used as
proof at the trial. In support of wife’s position that the witness was an
expert witness, wife asserted that her attorney paid the witness for attending
his deposition.
The court of appeals noted that payment of a fee to a
witness does not necessarily make the witness an expert witness. Instead, the
court stated that the trial court properly considered the subject matter of the
witness’ testimony to determine that the witness was a fact witness or an
expert witness. The court of appeals agreed that in this case the witness was a
fact witness.
On the issue of paying fact witnesses, the court stated that
it is not improper to pay a fact witness at his or her professional rate for
lost time. The court noted that federal courts generally hold that a fact
witness may be reimbursed for expenses incurred and compensation lost because
of the litigation. Further, the court acknowledged that American Bar
Association Ethics Opinion No. 96-402 states that it is proper for parties to
pay fact witnesses for their loss of hourly wages or professional fees. Thus,
the court of appeals concluded that it is not improper to pay fact witnesses in
the State of Tennessee.
Based upon this opinion, fact witnesses in state court
litigation can, and should, request reimbursement for their lost wages and
expenses they incur preparing for and attending depositions. For more
information see Cremeens v. Cremeens,
No. M2014-001186-COA-R3-CV (Tenn. Ct. App., July 24, 2015).