Witness Fees & Taxation of Costs In Civil Actions In Connecticut, 061821 CTBJ, 92 CBJ 53

AuthorBy James R. Fogarty, J.
Position92 CBJ 53


No. 92 CBJ 53

Connecticut Bar Journal

June 18, 2021

By James R. Fogarty, J. [*]

One of the most important and fundamental aspects of any trial or evidentiary hearing is the testimony of witnesses. Witnesses testify to material facts and occasionally to expert opinions under prescribed circumstances, normally dependent on their competence to do so. Many, if not most, individuals are reluctant or reticent to become a witness in a trial in which they have no pecuniary or other direct interest in the outcome. The process of testifying is time-consuming and emotionally stressful due to the need for correct recall and accurate, precise testimony. When an individual leaves a witness stand under the eyes of a judge, jurors, administrative personnel and spectators after undergoing the rigors of direct examination and cross examination by two or more lawyers trained to elicit facts helpful only to their respective clients, that individual has endured an experience, the memory of which is often lifelong and quite unpleasant.

When an individual is willing to testify voluntarily — either out of a sense of civic or moral responsibility or for appropriate, agreed upon monetary compensation — the administration of civil justice is properly served. But when an individual is not willing to testify voluntarily and is compelled to do so by service of a subpoena, there is a potential danger that the administration of civil justice will not be properly served. The reason for this is that General Statutes Section 52-2601 is antiquated, provides for inadequate compensation and is otherwise ambiguous. This statute is entitled, "Witness fees," but subsections (d) and (f) include provisions relating to taxation of costs, thereby overlapping with subsection (b)(1) and perhaps conflicting with subsection (b)(12) of General Statutes Section 52-257.2 Section 52-257 is entitled, "Fees of parties in civil actions." This title is also misleading because the section deals with taxation of costs, and the fees referred to in the title are not fees "of parties but fees and costs incurred by parties, as well as nominal sums for which parties may be indemnified, through the taxation of cost procedure.3 The ambiguity of the provisions of this statute, as well as the paltry sums provided for therein, are so pervasive that many trial lawyers do not seek taxation of costs, even following significant trials, because the legal expense of doing so would often exceed the modest amount recoverable.

The two statutes, Sections 52-257 and 52-260, appear to have been conflated by the legislature. The objective of providing for witness fees should be to encourage witnesses to testify in judicial proceedings, and to compensate them fairly for doing so, even when they have no pecuniary or direct interest therein. The objective of providing for taxation of costs in favor of a prevailing party should be to allow a limited exception to the American rule that litigants must bear their own costs, so that the liability to pay for certain specified costs is shifted from the prevailing party to the losing party. Both statutes are in serious need of revision. A witness should be entitled to compensation in an amount greater than the fifty cents per day provided by statute. And the costs which are taxable should not be comprised primarily of fees and expenses of expert witnesses who are members of the medical profession.

This article will attempt to explain the case law interpreting Sections 52-257 and 52-260 and their predecessors, analyze the statistics of the State Judicial Department relating to the cases in which costs have been taxed, and offer specific suggestions for revisions to both statutes.

I. Witness Fees

Many individuals testify voluntarily, both as fact witnesses and as expert witnesses. Yet, Section 52-260(f) provides that the court "shall determine a reasonable fee" to be paid to certain specified members of the medical profession and real estate appraisers who give expert testimony, which will be taxed as part of the costs. From the perspective of a party calling on an expert witness to testify, there is no compelling reason for requiring that the court set the amount of compensation of expert witnesses for their testimony or the amount for which they are to be reimbursed for travel allowance. Except in the rarest of cases, the amount of compensation received by an expert witness is determined solely by agreement between that witness and the party on whose behalf the expert witness has agreed to testify. The apparent reason for requiring the court to set the fee of those expert witnesses identified in the statute is to provide review, and possible limitation, of the fee for the benefit of the losing party against which the fee will, or can, be taxed. A party against whom the expert testimony is offered is routinely permitted to cross-examine the expert witness regarding the compensation paid to him for the purpose of showing a financial interest to impeach credibility.4 This time-honored safeguard already provides limited protection for the party against which the expert testimony is offered. In limited circumstances, currently being reviewed by the Supreme Court,[5] it is possible to require expert testimony from an involuntary, or unretained expert witness if, among other prerequisites, there is a compelling need for such testimony. In these special and unusual circumstances where testimony can be compelled, a statute providing for the expert's compensation or for the court to determine the amount of that compensation would make sense.

The vast majority of witnesses whose fees need to be set by statute are involuntary, nonexpert witnesses. As many trial lawyers have learned, these are the "ordinary" witnesses who often make or break a case. These individuals might include a passer-by or co-worker who was an eyewitness to the commission of a tort or a crime, or the violation of civil rights, an individual in the right place, at the right time who happened to overhear an important conversation between contracting parties, or an administrative aide who witnessed execution of a legal document by a person of compromised mental capacity. Section 52-260 provides for fees in civil actions for three categories of this multitude of "ordinary" witnesses who are subpoenaed: (1) police officers and firefighters, (2) public accountants, and (3) all others.

As provided in subsection (c), police officers and firefighters are entitled to a statutory attendance fee of $100 per day for each day attendance is required when the witness either is uncompensated by his municipal employer or testifies on a "vacation day or compensation day off." However, according to the express provisions of the statute, the attendance fee is payable only for testimony in court. There is no provision for testimony in depositions, administrative hearings or arbitration proceedings. Furthermore, tying the amount of the attendance fee to a determination whether the witness is being compensated by his municipal employer or is testifying on a "vacation day or compensation day off causes different and bizarre results, depending upon the collective bargaining agreement applicable to the witness. For example, the State Police agreement provides, "If a court appearance arises out of or is requested by or on behalf of the State, the employees shall be paid for such time and if the employee's presence is required beyond his or her normal work day, such time shall be paid in accordance with the overtime provisions of this Agreement."6 The City of Bridgeport Police agreement provides that the City shall adopt a policy that police officers subpoenaed to testify in civil actions shall be paid by the party issuing the subpoena at the overtime rate for a minimum of four hours.7 The City of Norwalk Police agreement provides that an officer subpoenaed by a private party in a civil matter "shall bill the private attorney [no amount stated] by sending a letter to that attorney" and if the officer is not paid in full within thirty days thereafter, then the City is liable to pay the officer at the overtime rate for a minimum of two hours.8 The determination of a statutory witness fee should be easier and not dependent upon vagaries caused by numerous variations of the provisions in municipal union contracts.9

The amount of the attendance fee for police officers and firefighters was five dollars per day beginning in 1949, and thereafter increased by various amendments to Section 52-260, including Public Act 78-289, doubling the fee from twenty to forty dollars per day, and Public Act 04-232, increasing the fee from forty dollars to its present level of $100 per day. Upon passage of the latter amendment, several members of the House of Representatives commented that there had been no increase for a prolonged period and that it was "long overdue." There was no mention of increasing the attendance fee for any witness subpoenaed other than police officers and firefighters.10

Public accountants are entitled to a "reasonable fee" in an amount determined by the court, as provided in Section 52-260(g). This provision was added by Public Act 83-251. The fee is due regardless of whether the subpoenaed accountant testifies to facts or renders an expert opinion.11 It is the only statute allowing the court to determine a "reasonable fee" for a fact witness. As explained below, the statute does not provide for taxation of an accountant's fee.

All of the remaining subpoenaed witnesses not providing expert testimony are covered in subsection (a) of Section 52-260. These witnesses are entitled to an attendance fee of fifty cents per day plus an allowance...

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