Pay The Witness Please

By: Michael Seinberg

Do you have anything to say that might be worth $10,000 an hour? Most people don’t. But in a recent civil case, it seems at least one witness did. The case, a simple slip and fall filed against Cablevision would appear to be pretty routine. The plaintiff claimed she had tripped and fallen due to an unfilled ditch allegedly left by Cablevision. Pretty cut-and-dried? Not really.

The attorney for Cablevision subpoenaed an emergency room doctor who proceeded to verify an entry he made in the “history” section of the hospital records. The note in question read that the plaintiff had, “Tripped over [her] dog while walking in the rain.” Oops. As you can imagine, the court ruled unanimously for Cablevision and the case was closed. However, the doctor was compensated by the defense for his time. The relevant statute on witness compensation allows for $15 per day plus $.23 per mile travel. The good doctor got $10,000 for one hour of testimony.

Not surprisingly, the court found this compensation a, “disproportionate fee for a short amount of time.” There’s an understatement. At the normal rates, that fee would have bought about 18 months of expert testimony. The court also worried that such a high fee tended to influence witnesses to testify favorably for whoever was paying them. Really? You think!? If this were a criminal case, the defense could easily have been indicted for bribery.

The fact is, New York’s expert testimony rules and procedure are archaic and often nonsensical. Consider our standard for determining what constitutes admissible scientific testimony – in most states, a comprehensive six part “Daubert” test is applied by the court: Is the theory testable? Are the tests reliable? Has the theory been peer reviewed? What is the error rate of the tests? What standards are followed during testing? Is the theory accepted as valid by the scientific community? In New York, we use the “Frye” standard, unchanged since the era of phrenology and junk science. Frye requires only one criterion be satisfied: is the theory “generally accepted?”

Or consider our expert witness disclosure rules. The law states that all parties must disclose the identity, qualifications, and compensation of their experts – but as if by some bizarre oversight, it fails to say when experts must be disclosed. So what happens? Plaintiffs wait until the eve of trial to disclose their witnesses – in other words trial by ambush. So much for the fair administration of justice.

There is a long overdue need for reform in the area of expert witnesses. LRANY is backing several proposals that would implement disclosure time frames and strengthen the standards for testimony, bringing clarity to this very murky area of the law, and keeping meritless cases out of the system to begin with. Our legal system is founded on the bedrock principal that everyone deserves a fair shot on an even playing field. Junk science and exploitative gamesmanship have no place in the halls of justice.

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