Hear Ye, Hear Ye, Testimony For Sale! (NY Personal Injury Lawyer Explains)

First, some background: The wheels of justice would come to a screeching halt without the Court’s power to subpoena non-party witnesses to testify in court. Subpoenaed witnesses, like it or not, must appear in court, take the oath, and testify about what they saw, heard, or know. In civil cases (such as personal injury trials) the judge doesn’t issue the subpoena, rather, the lawyers for the parties do under their authority as “officers of the court”. Each side subpoenas the witnesses it needs.

And it’s dirt cheap. In New York the party subpoenaing the witness must pay him only $15 a day (CPLR 8001[a]) no matter who he is or what he does for a living. The $500-an-hour business consultant is entitled only to the same $15 an hour as the street sweeper. Each has the same civic duty to appear. And if either refuses, he can be held in “contempt of court”, a punishable offense.

But can a party pay a subpoenaed witness more, even a lot more, if both agree to it? That’s the issue that came up in the recent Court of Appeals (highest Court in New York) case of Caldwell v. Cablevision Systems Corporation.

In Caldwell, a defendant in a New York trip-and-fall personal injury suit subpoenaed the E.R. doctor who had treated the plaintiff. The doc balked at the $15-a-day subpoena fee, and demanded instead $10,000, clearly a lot more than even an E.R. doc’s daily wage.

The defendant’s lawyer could have sent the E.R. doc to hell, and told him to appear for the $15 or else face contempt-of-court sanctions. But instead the two struck a deal, for the $10,000 fee!

In his hour-long testimony — for which he pocketed ten grand — the doctor authenticated a note he made after examining the plaintiff in the emergency room. The note said the patient had “tripped over her dog” while walking in the rain, not that she had fallen into a hole on defendant’s property, as she was claiming in court.

Did the exorbitant fee taint the doc’s “memory” of what the plaintiff told him? Should the testimony have been stricken as bought-and-paid-for?

The Court of Appeals, though “troubled” by the payment, held that the witness should be allowed to testify, as long as the plaintiff’s lawyer had an opportunity to cross-examine him regarding the payment. The Court also said that judges must instruct the jury that such payments might — duh! — make the witness biased.

Keep safe!

Mike Bersani
Email me at: bersani@mbk-law.com I’d love to hear from you!

Michael G. Bersani, Esq.
mbk-law.com Central NY Personal Injury Lawyers Michaels Bersani Kalabanka


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