The Better Chancery Practice Blog

Of course you can’t pay witnesses for their testimony (except experts, sortof), but you are required by MRCP 45(c)(1) to pay “to a non-party witness at the time of service [of a subpoena] the fee for one day’s attendance plus mileage allowed by law.” That payment may be waived by court order for indigence, and is not required of the State of Mississippi.

The witness fee is set out in MCA 25-7-47, which has provided that the witness is to be paid $1.50 per day and five cents per mile for travel to and from the courthouse “by the nearest route,” plus tolls and ferriage.

The usual practice in this district up to now for those who have not ignored the requirement is to issue the subpoena and tender a check for some nominal sum, like $2.00, to local witnesses.

The cost of witnesses, however, has gone up significantly, effective July 1, 2014. SB 2676, amends MCA 25-7-47, as follows:

Witnesses in the county, circuit * * *, chancery and justice courts shall receive * * * the same pay per day as is set by the board of supervisors under Section 25-7-61 for service as a juror plus mileage as authorized under Section 25-3-41 for each mile going to and returning from the courthouse to their homes by the nearest route, and such tolls and ferriages as they may actually be obliged to pay; but * * * a charge shall not be made for mileage except that traveled in this state. * * * Witnesses in all other cases shall receive the same compensation as they receive before the circuit court. It shall not be necessary to issue subpoenas for police officers as witnesses in city cases of cities having a population of more than ten thousand (10,000) according to the federal census of 1930; and * * * officers, when used as witnesses in * * * cases, are not to be allowed witness fees. A law enforcement officer who has retired or otherwise ceased employment as a law enforcement officer but who is required to testify in any case based on matters that arose during the course of the officer’s employment shall be entitled to the same compensation and expenses from the former employing law enforcement agency as an officer on active duty under the same circumstances.

So let’s try to figure this out:

• First, you have to look at MCA 25-7-61 to determine what “pay per day as is set by the board of supervisors … for service as a juror …” To arrive at that figure, you’ll have to consult with your board of supervisors, because the statute allows them to set the fee between $25 and $40 per day.
• Second, you will have to read and decipher what is the allowable mileage reimbursement under MCA 25-3-41. Good luck with that. If you conclude as I do that the applicable rate under MCA 25-7-41 is the county reimbursement rate, then MCA 25-3-41(2) applies, and it allows a mere twenty cents per mile unless the board of supervisors has adopted the mileage reimbursement rate allowable for state employees.

Bottom line is that your per diem cost to obtain a witness’s attendance has gone up from $1.50 to somewhere around $25 – $40 per day of attendance. That does not include mileage, which must be computed in addition to the per diem. I doubt that there are any boards of supervisors clinging to the antiquated twenty-cents mileage rate. The state mileage reimbursement rate now is $.565 per mile. If your supervisors have adopted the prevailing state rate, then you are looking at paying your witnesses more than 10 1/2 times more than the current five cents per mile statutory rate.

Hypothetically, then, if your non-party witness has to travel 17 miles to court, and your board of supervisors has adopted $40 a day for jury pay and mileage at the state rate, and there are no ferries or tolls to pay, then you now have to tender that witness $59.21 ($40 per diem, plus 34 mi. x $.565) each day for attendance. The cost before the amendment would have been a mere $3.20 ($1.50 per diem, plus 34 mi. x $.05).

For lawyers who are going to observe the requirement of R45, this should have a dampening effect on the vexatious practice of issuing subpoenas for 30 witnesses for trial and calling only four. It should also discourage those lawyers who like to subpoena a witness aligned with the other side, and then to keep that witness waiting in the hall two, three or four days, only calling him or her for a few brief questions at the end of the trial. Both unprofessional practices will now be more expensive than one could reasonably justify to a paying client.

As I said, these new rates are in effect now, and have been since July 1, 2014.

NOTE: In East v. East, 775 So. 2d 741, 747 (Miss. Ct. App. 2000), the COA ruled that a witness who had not been tendered payment per R45 had not been properly served. Who gets to raise the issue? In Roberts, it was the witness himself who brought up the matter via ex parte communication with the judge, which the COA did not find improper. No doubt the affected witness may always raise the non-payment issue, but may a party? Stay tuned.

Thanks to Anderson for the cite to Roberts in a comment to this post.