TALLAHASSEE – The Florida Supreme Court recently decided a version of Rule 4-3.4(b) regarding witness payments doesn’t allow a party to pay a fact witness for fees that aren’t directly connected to a witness’s role in the case.
In its Dec. 28 opinion, the high court posed the question: Does the pre-2014 version of the rule "permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation that is not directly
related to the witness preparing for, attending or testifying at proceedings?"
"We answer the rephrased question in the negative and remand for further proceedings," the opinion said.
Though the Second District Court of Appeal had decided the payments were allowed under the pre-2014 version of the rule and that said payments could be recovered, the Supreme Court disagreed and remanded the decision. Chief Justice Charles Canady authored the opinion, with Justices Barbara Pariente, Peggy Quince, Ricky Polston, Jorge Labarga, C. Alan Lawson and R. Fred Lewis concurring.
The issue arose after Trial Practices Inc. (TPI) had an agreement to give Jack J. Antaramian legal services in his multimillion dollar lawsuit with his business partner, David E. Nassif, regarding a dispute over commercial real estate holdings. TPI and Antaramian were said to have agreed TIP would get 5 percent of Antaramian’s “gross recovery” in the lawsuit, court filings said.
The lawsuit ended in a mistrial, and TPI didn’t receive anything, with Antaramian arguing there was no gross recovery.
TPI then filed a lawsuit.
During the trial, TPI presented multiple witnesses to testify about the agreement. Antaramian brought several witnesses, including seven licensed professionals (Nassif and Antaramian’s lawyers and Antaramian’s accountant). After the jury ruled in Antaramian’s favor, Antaramian sought $2.5 million, including $236,000 for the amounts paid to the witnesses, court filings said.
TPI asked for the details of the billing and found it included expenses for the seven fact witnesses, such as travel, testifying at depositions, looking at documents and fulfilling TPI’s requests for discovery . TPI then challenged any fee award with arguments that Antaramian discretely paid the witnesses their billing rates in exchange for their testimony.
The trial court said TPI was being overzealous and sided with Antaramian concerning the award. TPI appealed with the Second District Court of Appeal which also ruled against it. TPI brought the case to the Supreme Court.
The Supreme Court pointed out there is no issue when it comes to paying witnesses as long as it is for reasonable expenses the witness incurs while testifying, a reasonable noncontingent fee for their professional services, and a reasonable compensation to reimburse witness for any loss of wages they experienced as a result of taking the time to testify.
“Permitting payments for any type of ‘assistance with case and discovery preparation,’ would not only be inconsistent with the rule’s plain language but could open the door to purchasing testimony under the pretext of such ‘assistance’ and compromise the integrity of the fact-finding process – the very thing rule 4-3.4(b) is designed to prevent,” the Supreme Court said.
It added that while it is difficult to pinpoint the trial court’s actual cost, such as what payments were included in the unitemized award, it pointed out that an evaluation of the invoices shows that several of the line items aren’t put in the correct category for “assistance with case and discovery preparation” and are rather more accurately in the category of “preparing for, attending, or testifying at proceedings.” Still, it’s very clear that some of those items go beyond what is allowed in the rule, the court said.
The Supreme Court also concluded that some of the “preparing for, attending or testifying” expenses could also fall into the “assistance with case and discovery preparation.” One witness was allegedly paid for time they spent looking over motions such as motions for sanctions and in limine.
The Supreme Court concurred with TPI that this isn’t allowed and quashed the Second District Court of Appeal decision and remanded with more instructions to the trial court.