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).