The United States Law Week

Witness Payments OK in ‘Complex’ Matters, Fla. High Court Says

Dec. 31, 2018, 9:39 PM

Lawyers may pay witnesses who provide assistance with a case and discovery preparation that isn’t “directly related” to giving testimony in a proceeding, the Florida Supreme Court ruled.

The state high court was asked to clarify what’s allowed under a state legal ethics rule in a complicated real estate settlement that followed a mistrial. The pertinent portion of the rule titled “Fairness to Opposing Party and Counsel” bars lawyers from offering an inducement to testify because it could improperly influence a witness to slant testimony.

There are a few exceptions that recognize that value of witnesses’ time, such as covering expenses for their time and compensating for the loss of income they incur by participating in a case.

In “highly complex cases” where lawyers “are dependent upon professionals,” witnesses may be compensated for their participation in a case for which they are later called to testify, the court said.

Quoting the rule’s language, the court reiterated that the assistance “must be directly related to the witness ‘preparing for, attending, or testifying at proceedings.’”

The Dec. 28 ruling addresses an earlier version of the rule. It was amended in 2014 to strip language relating to reimbursing a witness for lost compensation.

The case is Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, Fla., No. SC17-2058, 12/28/18.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bloomberglaw.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com

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