Samuel C. Stretton.

Compensation is permissible for experts in those rare cases where they’re not local.

I have a witness who has in the past testified as an expert, but in this case will be a fact witness. Can I pay him for lost income?

Payment to witnesses who are not experts is very limited and governed to a large extent by the Rules of Professional Conduct. Under Pennsylvania Rules of Professional Conduct, Rule 3.4(b), a lawyer cannot pay or offer payment to a witness contingent upon the content of the witness’ testimony or the outcome of the case. But, a lawyer is allowed to pay or advance the following request for witnesses. First, the lawyer can advance expenses reasonably incurred by the witness in attending or testifying. That would include hotel room and meals and perhaps transportation. Obviously, it has to be reasonable. If a witness is in a $2,000-a-night suite, that would be unreasonable. On the other hand, the witness doesn’t have to be put in a $40-a-night disrespectable motel either. Similarly, meals have to be reasonable. Ordering wine or spending hundreds of dollars on food would not be reasonable.

Next, a fact witness can be paid reasonable compensation for time lost in attending and testifying. This is different from an expert witness who can be paid for their professional testimony and reports, in addition to, the aforementioned expenses.

Therefore, it appears that reasonable compensation to a witness for the witness’ loss of salary is permissible. That loss should be defined for the witness. With some witnesses, that’s easy because they have a job where they get paid a certain hourly rate. For others, it’s a little more difficult. For professionals such as a doctor or lawyer to compensate them may require paying their loss of income at their normal hourly rate. All that is permissible. Therefore, fact witnesses can be compensated not only for their time in appearing for their lost income, but also for their preparation time.

The best practice would be to let opposing counsel know that a witness is being compensated for reasonable loss of income for appearing and testifying. That way that issue could be fully covered on any cross examination and fully explored to ensure that it’s not an unreasonable compensation.

There is always concern when a fact witness is being paid monies. On the other hand, a fact witness has to be compensated if they are coming from far away and need a place to stay and have to order meals at a restaurant. If the fact witness loses income because they are self-employed or their job is not paying them, it’s not unreasonable for the witness to be compensated for their reasonable loss of income. But, the key word, again, is reasonable.

Every lawyer who tries cases knows that it’s not going to reflect well on a jury box if the jury finds out a fact witness is getting paid a large amount or at least monies that can’t be justified. If a witness is there one day and perhaps several hours of lost income is warranted. A day or two of a hotel stay and reasonable food, but beyond that it’s not reasonable and could undermine the credibility of a witness. Obviously, it’s hoped most fact witnesses are available and local and there’s no need to compensate them. But, the difficult cases where witnesses aren’t available and have to be brought in, then compensation is permissible.

You can file a lawsuit even if the statute of limitations has run out.

My client is claiming a personal injury suit and it’s clear that the statute of limitations has passed. I explained that to the client, but they want me to file a suit anyway to see if perhaps there could be a settlement reached, etc. Can I ethically file a lawsuit knowing that the statute of limitations has passed?

Although one might think it would be a frivolous lawsuit, Statute of limitation issues are the concern of the defendant and his  attorney. In other words, statute of limitations is an affirmative defense. Any lawyer who is involved in statute of limitation issues knows that one can’t do preliminary objections on statute of limitations. Statute of limitations has to be raised in new matter and then later either as a judgment on the pleadings and motion for summary judgment.

Since it’s an affirmative defense, there is nothing unethical about filing a lawsuit even though the lawyer knows or believes that the statute of limitation time period has passed. The reason is that the defense has to raise the issue and raise it as an affirmative defense. If the defense of statute of limitation isn’t properly raised or properly pursued, then the lawsuit can go forward.  Clearly, in this modern age it’s hard to conceive any lawyer would fail to raise a statute of limitations defense issue, but it could happen. As a result, it’s not unethical to file a suit even though the lawyer knows or believes the Statute of Limitation has passed for that cause of action.

Some concerns about filing something when the statute of limitations has passed are found in Pennsylvania Rules of Professional Conduct, Rule 3.1. Under Rule 3.1, a lawyer is not allowed to bring a frivolous suit.

There’s an old Pennsylvania Bar Association informal opinion cited as Opinion 96-60. That opinion found it to ethical for a lawyer to bring a lawsuit even though the lawyer knew the Statute of Limitations had passed. The basis for that such allowance was because the other side must raise the defense by way of statute of limitations. Obviously, in filing such a suit the lawyer has to be very careful in the pleadings. The pleadings can’t hide the statute of limitations issue or try to camouflage or ignore it in some fashion.

In conclusion, a lawyer can file a suit on behalf of a client even though the lawyer is convinced the statute of limitation would bar the suit. But, from a practical standpoint, the lawyer should very carefully explain to the client that the statute of limitations is going to cause the suit to be dismissed at some point. If a lawyer is charging the client on an hourly basis, the lawyer should explain also to the client that they could lose their fees if the other side raises Statute of Limitations properly in affirmative defenses. It’s hard to imagine very much value can be obtained for a client if the Statute of Limitations is truly gone. Unless there’s just some great nuisance value of $1,000 or $2,000, it would seem to be a waste of the client’s money for the lawyer to proceed forward.  The lawyer has an obligation under Rule of Professional Conduct 1.4 to fully discuss all the ramifications to a client about filing a suit after the statute has passed. The best practice is to do this explanation in a written letter, so down the line there is no unhappy client complaining that the lawyer filed a suit just to get money knowing the statute of limitations issue could well be raised.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.