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To Pay Or Not to Pay Witnesses? and Admit Such Evidence, and Managing Allow Reimbursements for Time Spent Collecting Evidence

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To Pay Or Not to Pay Witnesses? and Admit Such Evidence, and Managing Allow Reimbursements for Time Spent Collecting Evidence LAW WEEK COLORADO TRIAL TECHNIQUES To Pay Or Not To Pay Witnesses? and admit such evidence, and Managing allow reimbursements for time spent collecting evidence. Of The Risks Of course, the “purchase” of evi- dence must be done to further Compensating the truth-seeking function of the Witnesses court, not undermine it. Colorado Rules of Profes- By Robert Blume and Jason Stavers sional Conduct Rule 3.4 is also GIBSON DUNN & CRUTCHER helpful: “A lawyer shall not … “YOU WANT MY testimony? unlawfully alter, destroy or con- Pay me!” “You want my evi- ceal a document or other mate- dence? Buy it!” rial having potential evidentiary Trial lawyers spend a signifi- value.” cant amount of time identifying, Regardless, if the seller is collecting, and presenting facts also a testifying witness, pay- to judges and juries. And these ROBERT BLUME JASON STAVERS ment for physical evidence may facts are often best told through be portrayed by your opponent live witness testimony. But be- time spent preparing to testify an explanation that the pay- as a disguised payment for cause witnesses are often reluc- and for testifying. So what is ments are not in exchange for testimony, making the “reason- tant to testify, it is not surprising “reasonable?” testimony or contingent on the ableness” of the assessed value when they request compensa- Generally, “reasonable” outcome; and prepare the wit- an important consideration. tion for their time and expenses. compensation must be defensi- ness to answer questions about But reasonableness can vary And even less surprising, ble. For example, compensation compensation in an open and based on perspective — a hard is when they seek payment for at a rate commensurate with a non-apologetic manner. drive may cost $100, but con- physical evidence they may witness’ hourly wage is gener- A research word of caution: tain data of far greater value to possess. These demands, in ally “reasonable.” But paying Although looking at cases your client. Accordingly, a law- turn, place trial attorneys in a lawyer witness based on the where the government paid a yer trying to purchase evidence challenging ethical and strategic hourly rate she charges clients testifying informant may be should negotiate the price as if positions. may result in a windfall as those tempting, those cases are gener- buying a car. Although there are few hard rates usually includes costs ally not instructive to the civil By not paying the asking and fast rules in this area, one borne by her employer, such as litigator — prosecutors employ price, or at least by negotiating, thing is clear and critical: Law- overhead, benefits and profit. the tactic regularly, but are one may avoid the appearance yers may neither pay a witness Aside from “reasonable- given leeway in light of their of collusion or pandering with in exchange for testimony nor ness,” lawyers should consider unique duty “to seek justice, not improper compensation. A law- base the payment on the out- how a paid witness may be per- merely to convict,” as stated in yer is also well advised to take come of the litigation. So how ceived. Generally judges will the American Bar Association steps to ensure that the seller should one answer the two ques- be more tolerant of higher com- Criminal Justice Section Stan- does not alter the evidence or tions posed above? Carefully. pensation amounts than jurors. dard 3-1.2(c) and the state Rules “oversell” its contents or prov- Yet even “reasonable” Of Professional Conduct 3.8. enance just to increase its value. Compensation for time compensation may suggest an In any event, like all agree- Without doubt, an attorney effort to improperly influence Compensation for ments with witnesses, me- may not “counsel or assist a wit- testimony and may negatively physical evidence morialize the details of the ness to testify falsely, or offer an impact the witness’ credibility. Although there is little guid- agreement in writing and detail inducement to a witness that is Further, witness payments may ance in this area, a leading eth- the basis for the agreed-upon prohibited by law,” according to create that “red-herring” issue ics treatise argues that paying price. And be sure to include in the Colorado Rules of Profes- on which your opponent will for physical evidence does not that writing a statement that the sional Conduct 3.4(b). Nor may focus. raise the same types of concerns payment was only for evidence a lawyer improperly influence Therefore, although there is as compensating a testifying and not in exchange for specific testimony by paying a witness, no duty to disclose compensa- witness because such payments testimony or contingent on the according to the the Federal An- tion arrangements, to stay in are designed not “to change the outcome of the litigation. • ti-Gratuity Statute, 18 U.S.C. front of any attack by your op- content of the testimony but — Robert Blume and Jason Stavers ponent (or uncomfortable col- §201(b)(3). simply to get information that, practice with the Denver office of That said, Colorado attorneys, loquy with the court) lawyers realistically, would not other- are well-advised to proactively Gibson Dunn & Crutcher. and those in most other jurisdic- wise normally be given.” They can be reached at 303-298- tions, may provide “reasonable” reveal such arrangements. Under this rationale, courts 5700. compensation to a witness for In that case, memorialize routinely allow this conduct the arrangement, including .
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