Hi, Leslie...
Hoping all is well.
Although most jurisdictions allow for payment to fact witnesses for time lost for testifying and preparing to testify, a few courts have followed the traditional common lawrule and prohibited payment of fact witnesses for time spent preparing to testify. In Goldstein v. Exxon Research & Engineering Company, the District of New Jersey heldthat that a corporate defendant could not pay a retired employee for time spent preparing to testify on facts within his personal knowledge. I think that case was decided back in 1997, but don't have a cite to share, nor do I recall seeing it overruled... but it's getting a bit late and the Sand Man is about to visit me, so I could be mistaken. If this is still good law, I don't see it not applying to testimony given at depositions as well. IMO
Related is the issue of privilege. N.J.R.E. 504; N.J.S. 2A:84A-20 provides in pertinent part:
"... (1) General rule. Subject to Rule 37 [Rule 530] and except as otherwise provided by paragraph 2 of this rule communications between lawyer and his client in the course of that relationship and in professional confidence, are privileged... The privilege shall be claimed by the lawyer unless otherwise instructed by the client or his representative; the privilege may be claimed by the client in person, or if incompetent or deceased, by his guardian or personal representative...
(2) Exceptions. Such privilege shall not extend... (b) to a communication relevant to an issue between parties all of whom claim through the client, regardless of whether the respective claims are by testate or intestate succession or by inter vivos transaction...
Not too very long ago, I represented a client in a case where the parties attended several mediation sessions. For various reasons, I left the case right after that and the case went on without me. After first receiving patently deficient notice, which I simply ignored, I eventually received a proper notice. Upon arriving in the deposing lawyer's conference room, the reporter asked how long the deposition was he attorney and I objected to every single question beyond the getting to know you stuff, on the basis of multiple un-waived privileges, including 530. Ended up not going very long at all.
Attorney Work Product is another thing as well. Wow... Just noticed the time and need to be in Toms River in what's going to feel like no time at all at this point. Was there all day yesterday on a DV. Good times. Hope this is somewhat useful. CJR
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Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
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Original Message:
Sent: 09-03-2014 12:08
From: Leslie Farber
Subject: OFF-TOPIC - compensation for my time to be deposed
This message has been cross posted to the following Discussions: Family Law and LGBT Rights Section .
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I am going to be deposed in a will contest case arising out of a will I drafted for a former client who is now deceased. Am I entitled to my hourly rate of compensation for the time to take my dep.?
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Leslie Farber Esq.
Montclair NJ
(973)509-8500
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