Every litigator has, undoubtedly, received requests or demands from occurrence witnesses — more colloquially referred to as fact witnesses, in order to distinguish them from expert witnesses — to be paid more than the $5 per day (plus mileage) authorized in Pennsylvania, pursuant to 42 Pa.C.S. §5903, as "compensation to subpoenaed witnesses."

Pennsylvania Rule of Professional Conduct 3.4 provides that a lawyer shall not "pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness' testimony or the outcome of the case; but a lawyer may pay, cause to be paid, guarantee or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying, (2) reasonable compensation to a witness for the witness' loss of time in attending or testifying, and (3) a reasonable fee for the professional services of an expert witness."

Comment 3 to Rule 3.4 further provides: "It is not improper to pay a witness' expenses or to compensate an expert witness on terms permitted by law. The common-law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee."

While it is, of course, perfectly appropriate to pay an expert witness more compensation than is provided for by Section 5903, I question whether paying a fact witness (regardless of whether his or her profession inherently involves some level of expertise, or whether he or she is truly a lay witness, only) anything more than the $5 per day plus mileage is expressly "permitted by law" in Pennsylvania.

The express words of Rule 3.4 are permissive and general. They allow that "a lawyer may pay … expenses reasonably incurred by a witness … and reasonable compensation to a witness." Because these words do not, in any way, qualify the type of witness they apply to, I believe that these words can be, and often are, interpreted to sanction paying a fact witness more than the statutorily authorized compensation for the witness' preparation for and/or actual attendance at a deposition or trial. This pay is sometimes substantially more than authorized, usually tied to the per-hour fee that the witness' expertise in a given field of practice commands in the marketplace.

But the permissive nature of the express wording of the apparently applicable Rule of Professional Conduct is not the end of the analysis.

Even the comment to Rule 3.4 itself establishes that paying a witness' expenses must also be "on terms permitted by law." For instance, Marcellus A. McRae and Kim Nortman, in their article "Your Witness," published in Los Angeles Lawyer, note, in determining whether and how much one may compensate a fact witness, one must look to not only the applicable jurisdiction's rules of professional conduct but also the federal Anti-Gratuity Statute (18 U.S.C. §201) and the applicable jurisdiction's common law.

The common law of Pennsylvania is far from clear on the topic. The annotations found in Purdon's Pennsylvania Statutes to Section 5903's statutory limit on witness compensation include a reference to the case of In re Ramschasel's Estate, 24 Pa.Super. 262 (1904). That ancient case held: "A special contract to pay more than the regular witness fee in ordinary cases is void for want of consideration, and as against public policy."

Interestingly, Ramschasel's Estate is still good law. A more recent case, Merva v. Workers' Compensation Appeal Board, 784 A.2d 222 (Pa.Cmwlth., 2001), held:

"Thus, under earlier Pennsylvania law, every agreement to pay any witness, expert or otherwise, any amount higher than the amount fixed by law was illegal. Obviously, the strictures of In re Ramschasel's Estate have been eroded by later practice to the point where the Restatement of Contracts, Section 552, updated the written practice with regard to whether experts are permitted to provide testimony that is contingent upon the outcome of a case. … Fee agreements with expert witnesses that exceed the legal fee provided for other witnesses are now permitted, therefore, as an exception to the rule against additional witness fees but only if such expert fees are not 'contingent on the outcome of the controversy.'"

In light of Ramschasel's Estate and Merva, has Pennsylvania's common law ever actually abrogated the rule that attempting to pay any type of witness, "other" than an expert witness, more than $5 per day plus mileage is "void for want of consideration" and because it is "against public policy"? There is a strong argument that our state's common law has not done so. In fact, there is a very strong argument that it remains entirely unlawful, in Pennsylvania, to pay a fact witness anything more than $5 per day plus mileage.

If it remains unlawful to pay a fact witness more than $5 per day, I question whether it is not time for our legislature to do one of two things: (1) make the amount one is authorized to pay a fact witness more than the insultingly low amount of $5 per day or (2) set forth a per se edict that no fact witness may be compensated, at all. I am sure that others have found, as I have, that it would actually cause less hard feelings on the part of fact witnesses if the law provided that there were no fee that could be paid to a fact witness, rather than the $5 fee specified in Section 5903.

The problem with the amount of the currently authorized witness fee is that its very existence acknowledges in the mind of the witness that the law recognizes that he or she is entitled to compensation for time spent away from his or her usual daily activities but then quantifies the value of that time as being worth the grand total of $5.

It would be far easier to explain to fact witnesses that, because of public policy considerations related to the need for testimony to be beyond even the subliminal reach of lucre, no witness fee may be paid for their time by any litigant. This approach would be better than attempting to pacify an about-to-be-examined witness sense of exasperation with the notion that someone is telling him or her that an entire day's worth of his or her time is appreciated as valuable by the legal system, but only in the amount $5. •

Andrew H. Ralston Jr. is a partner at Gross McGinley whose practice focuses upon commercial litigation and medical malpractice defense, representing clients throughout Eastern and Central Pennsylvania.