I have a witness in a case who is not an expert witness, but who has to review records to prepare for his testimony. Can I pay this individual for his time in reviewing these documents, even though he is not an expert?
The answer appears to be yes, although it is always worrisome when monies are paid to a non-expert witness for testimony. The Rule of Professional Conduct that provides guidance is Rule 3.4(b). That rule prohibits paying compensation to a witness that is contingent upon the contents of his or her testimony or the outcome of the case. Obviously, no one can pay a witness monies for better testimony. But the rule does allow a lawyer to pay fact witnesses some money for specific reasonable costs that are incurred as part of testifying.
