“You know that we are living in a material world…” Madonna, 1984
It is, after all, a material world. Oh, sure, we do some things out of civic or moral duty, not expecting any compensation beyond the very real satisfaction of doing the right thing. But in commercial litigation, when the principal issue is money, the participants all tend to develop an interest in getting a fair share of the principal. You bill by the hour. Your experts bill by the hour. Your client-witnesses are already paid to serve their employers’ financial interests. But what about nonparty fact witnesses? Your retired former plant manager, who is a key fact witness in your breach-of-supply contract case, would like a little love (make that money) to get off her beach chair and come out of retirement to help you by preparing for and sitting for a deposition. And the price she is asking $500 an hour is peanuts compared with the $100 million judgment you are seeking. You want a happy, motivated witness, so this is a no-brainer pay her what she asks without another thought, right? Well, wrong. Let’s give it a little thought first.
