Under Minnesota court rules, a subpoenaed witness is entitled to “reasonable compensation” for time as a witness. But how much compensation is “reasonable?” Does the law set a fixed rate for compensating witnesses?

In short, there is no fixed rate for the amount that must be paid to a subpoenaed witness. The amount of “reasonable compensation” depends on the circumstances. If you think about this, it makes sense: a person earning $15 per hour who took time away from work to be a witness shouldn’t earn the same amount as a person earning $50 per hour. This article explains the details of this law in Minnesota.

Is compensation required for witnesses?

Yes. Under Minnesota court rules, a “party serving the subpoena shall make arrangements for reasonable compensation . . . .” Minn. R. Civ. P. 45.02(d).

Some witnesses are also entitled to compensation for preparation time:

“a witness who is not a party to the action or an employee of a party . . . and who is required to give testimony or produce documents relating to a profession, business, or trade, or relating to knowledge, information, or facts obtained as a result of activities in such profession, business, or trade, is entitled to reasonable compensation for the time and expense involved in preparing for and giving such testimony or producing such documents.”

Minn. R. Civ. P. 45.03(d).

Who decides how much is compensation is reasonable?

What is “reasonable” is either

  • negotiated and agreed by the parties or
  • set by the court.

Putting the issue before the court usually requires a court motion. That costs money. So parties it’s usually best to negotiate a reasonable rate.

Can a witness simply not show up if compensation is too low?

No. A subpoenaed witness can either comply with the subpoena or bring a motion (i.e. request) to the court to quash the subpoena. Here is Rule 45.03(c) with more detail on the procedures.

What information is considered to determine ‘reasonable compensation?’

Evidence of what is reasonable would include a witness’s hourly wage (which can be calculated/extrapolated from a salary as well) or, if the witness bills hourly in her job, her hourly rate could be used. In other words, the “reasonable” cost is the ultimate total cost for the witness missing work.

If an employer is requiring an employee to be a witness and is paying the employee for that time, presumably the employer could consider all costs for the employee (wages, payroll tax paid by the employer, and other benefits paid by the employer) when calculating “reasonable compensation” for that employee’s time. If the employee has a billable rate (e.g. a consultant), that rate could be the rate for “reasonable compensation.”

In the end, the “reasonable compensation” rate will depend on the circumstances. If those involved cannot agree on a rate, the issue can be put before the court. The court can consider all information relevant to lost income for the witness’s time away from work.