Kuldeep Bhargava et al. v. Daniel Arnould et al. (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE TESTIMONY

PROCEDURAL BACKGROUND

The instant action was tried before the court on April 20, 2010, April 21, 2010, and April 27, 2010 on May 21, 2010 after the conclusion of the trial, the defendants requested, through a motion to strike, that the court strike the testimony of Michael Cordelli.   The plaintiffs have submitted a memorandum in opposition to the motion.   The court heard argument as to this issue on June 15, 2010.

DISCUSSION

The court has set forth the factual background of this matter in a Memorandum of Decision dated September 16, 2010.   For purposes of this memorandum the court will adopt the facts set forth in the memorandum and has supplemented portions of the testimony necessary for this motion.   At issue in this motion is whether the court should strike all of the testimony of Michael Cordelli because the plaintiffs' counsel compensated him for his time at $150.00 per hour for a total of $750.00, paid to him the day before he testified.

The concern with the payment is not the payment per se but the claim that the compensation to Mr. Cordelli for his time so influenced his testimony in favor of the plaintiffs that none of it is credible.   The general rule as set forth by the American Bar Association, Formal Opinion 96-402 is that:  “A lawyer, acting on her client's behalf, may compensate a non-expert witness for time spent in attending a deposition or trial or in meeting with the lawyer preparatory to such testimony, provided that the payment is not conditioned on the content of the testimony and provided further that the payment does not violate the law of the jurisdiction.”   The plaintiffs have provided the court with opinions from other jurisdictions that follow the American Bar Association guidelines in permitting the payment of compensation for loss of earnings, and expenses occurred in attending or testifying.   The consideration for payment must clearly be for expenses and cannot be a fee for testifying.

In examining this allegation by the defendants, the court has reviewed the law provided by both parties as well as the testimony of Mr. Cordelli in conjunction with the testimony and evidence of the other witnesses and the specific documents in evidence.

Counsel for the defendant vigorously inquired of Mr. Cordelli regarding the compensation provided by the plaintiffs.  (Tr., April 27, 2010, pgs. 31-47.)   In particular, Mr. Cordelli testified that the defendant had completed his deposition on September 20, 2009, before he had a conversation with Attorney Bologna that he should be compensated for his time.   There was a second deposition on October 22, 2009 at which time there was absolutely no discussion about compensation and before which he did not receive any compensation.  (Tr., April 27, 2010, pgs. 32 and 34.)   On cross examination by defense counsel, Mr. Cordelli made it clear he was not being paid for preparing or testifying in a specific manner.   The colloquy at trial consisted of the following:

“Q. Now you're telling me that you were promised compensation for preparing for this testimony?

A. No.

Q. I thought you said that you were going to be paid for time that you expended for preparing for this testimony?

A. Not for preparing.   I don't know what you would say preparing.

Q. Well, what is your arrangement with Mr. Bologna in terms of compensation?

A. He felt that as a consultant and the amount of time that I've taken out of my work and coming to the depositions at your office twice, coming here, that he felt that I should be compensated for my time.

Q. Now, what I'm trying to find out is what deal you made with Mr. Bologna.   How much were you promised?

A. There was no promise.”  (Tr., April 27, 2010, p. 31-32.)

Thereafter, he was asked specifically, “when you met with Mr. Bologna, were you assisting Mr. Bologna in presenting his clients' case;  isn't that correct,” and he replied “No.” This cross examination followed a question by Attorney Bologna asking, “has the fact that I'm compensating you for your time affected you testimony in any way here today?” in which Mr. Cordelli responded “No.” (Tr., April 27, 2010, p. 30.)

The timing of the offers to compensate and the actual compensation support the plaintiff's position and testimony of Mr. Cordelli that the payment was not for the content of the testimony because the plaintiffs did not compensate until after the completion of two dates for a deposition and after he had already met with Attorney Bologna.

The focus of the court in determining whether the compensation was improper considered the actual testimony of Michael Cordelli.   In reviewing his testimony and also noting his demeanor, the court finds that although he is not a good historian, his testimony concerning his involvement with the plaintiffs is credible and not influenced by the payment by plaintiffs.   In particular, Mr. Cordelli testified that he could not recall specifics such as each and every document delivered to Patriot Bank. He could not specifically recall the conversations with the plaintiffs.   Mr. Cordelli was unable to offer testimony that supported specifically the request for a larger loan amount or the discussion about the federal regulations.   His testimony on these issues was sketchy and certainly the payment did not aid his recollection.

Another argument of counsel for the defendants is that he was unable to conduct a proper cross examination of Mr. Cordelli because he was not aware of the arrangement for compensation.   In this regard, the court gave counsel an opportunity to keep Mr. Cordelli in court pursuant to his subpoena in the event there were additional questions.  (Tr., April 27, 2010, p. 78.)   Counsel requested that the court have Mr. Cordelli remain, which the court ordered.   The defendants then chose not to re-call Mr. Cordelli as a witness in their case.   However, the plaintiffs did call him as a rebuttal witness and the defendants again had an opportunity to pursue any inquiry.   They did not address or question as to the issue of credibility at that time.

Lastly, the court permitted counsel to provide the court with memorandum and specific references to the areas that defendants contend Mr. Cordelli's testimony was inconsistent with his prior deposition testimony.   The defendants offered no specific references to a change in deposition testimony.   The defendants have argued that generally Mr. Cordelli is not credible.   The court, after observing Mr. Cordelli, hearing his testimony and examining the documents has determined that as a general matter Mr. Cordelli offered credible testimony.   This does not mean that the court has accepted completely his testimony because he was uncertain about certain matters such as a discussion about whether he requested a larger loan from the bank.   Mr. Cordelli did not have specific recollection of some of the events or conversations, but this is not unusual given the passage of time and the number of business transactions that he may conduct.   However, the court does not believe that there is any evidence that Mr. Cordelli “swayed” his testimony in any manner because the plaintiffs compensated him for his time.   There is no evidence or testimony that supports a finding by this court that his testimony should be stricken rather than the court consider it as a whole weighing the credibility as it would for any witness.

CONCLUSION

The law in the State of Connecticut does not prohibit a party from compensating a witness for the time spent in attending a deposition or a trial.   The only concern in relation to the compensation is that it is not offered as a payment to provide specific testimony in favor of the party.   The defendants have not demonstrated that the testimony of Mr. Cordelli was impacted or changed as a result of the compensation.   In fact, Mr. Cordelli was deposed prior to the trial of this matter and it does not appear that his testimony differed on any substantial issue.   Therefore, the court does not find that Mr. Cordelli was compensated for testimony favorable to the plaintiffs and that such compensation paid well after his deposition testimony does not preclude the court from weighing his testimony as to credibility in the same manner as any other witness.

The motion to strike the testimony of Mr. Cordelli is denied.

THE COURT

Brazzel-Massaro, J.

Brazzel-Massaro, Barbara, J.