Litigation & Advocacy · 10-16% of the exam
14.1.2Witness payment rules (Rule 3.4(b))
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- Rule 3.4(b) — Witness compensation
Witness identity controls which compensation is permitted; a separate and independent contingency bar applies to every witness regardless of identity.
Why
Testimony is supposed to report what a witness knows, not what a witness was paid to say. Money attached to the outcome quietly rewrites the account. Yet witnesses lose wages and pay to travel, and a rule that ignored those costs would price ordinary people out of appearing at all.
Plain English
Any witness may receive reasonable travel expenses, reasonable incidental out-of-pocket expenses, and reasonable compensation for loss of time attending or testifying, including lost wages — the ABA position rather than Rule 3.4(b)'s text, which on witness payment bars only an inducement to a witness that is prohibited by law. A fact witness may also take the statutory appearance fee where law prescribes one; a reasonable witness fee is for experts only. No contingency for any witness.
A payment framed as a reward for having testified crosses the line whatever its size; what separates the permitted payment from the prohibited one is whether it compensates loss of time or rewards the fact or the content of the testimony.
Rule
Rule 3.4(b) — Witness compensation
Permitted for any witness:
Reasonable travel expenses.
Reasonable incidental out-of-pocket expenses.
Reasonable compensation for loss of time attending or testifying (including lost wages).
Permitted for fact witnesses (statutory only):
The jurisdictional statutory appearance fee where one is prescribed by law, payable in addition to expenses and lost time; never contingent.
Permitted for expert witnesses only:
Comment [3]: a reasonable expert witness fee.
Prohibited for all witnesses (expert and fact):
Any contingency arrangement (payment tied to case outcome or testimony content).
Additional limit: a lawyer must not offer any inducement to a witness that is prohibited by law.
Source note: the permitted payments above are the ABA position rather than Rule 3.4(b)'s text, which on witness payment bars only an inducement prohibited by law. Comment [3] records the narrower common-law rule in most jurisdictions — improper to pay an occurrence witness any fee for testifying, and improper to pay an expert witness a contingent fee.
Trap
Questions · 2
Q 01ch14-e03
Question 1 of 2 · Rule 3.4(b)
Attorney represented Plaintiff in a suit over a collapsed retaining wall at a community garden. The only occurrence witness is a part-time baker who watched the wall give way and who is not an expert. Testifying will cost the baker a full shift's pay and a day of bus fare across the county. The witness has asked Attorney to cover those losses before agreeing to appear, and the jurisdiction prescribes a statutory appearance fee for fact witnesses. Attorney proposes to pay the bus fare, an amount matching the lost shift, and the statutory fee, with nothing turning on what the witness says or how the case ends. May Attorney make these payments?
Keys 1 to 4 choose.