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Someone Served You With a Subpoena to Testify – Now What?

Subpoenas have been in the news quite frequently this year. They are not unique to the high-profiles cases in the news. Subpoenas are a frequent and necessary part of litigation in state and federal courts and administrative proceedings. If you have received a legal document called a subpoena from a process server, it is important that you know what this paper is and what it means to you.

What is a Subpoena?

A subpoena is an order issued by a government agency authorized to issue them. Subpoenas can be issued in state and federal court proceedings (both civil and criminal matters) and by administrative agencies that have adjudicative functions such as the Bureau of Workers Compensation, Equal Employment Opportunity Commission or U.S. Department of Labor. The subpoena usually requires you to appear at a certain place, date, and time to testify as a witness about a particular case. In a criminal case, you can be subpoenaed only to testify in court. In a civil case, you may be subpoenaed for out-of-court testimony (known as a deposition) as well. In either kind of case, a subpoena may order you to provide documents.

Delivery of Subpoenas

The rules for delivery of subpoenas vary depending on the issuing authority. Typically a subpoena must be delivered in person. In most cases this can be done by one of the parties in the case or by anyone who is at least 18 years old.

If you receive a subpoena and are not one of the parties in the case, you should receive an attendance fee and transportation costs for appearing at the designated time and place. In a civil case, you should receive the attendance fee and transportation costs by the person who delivers the subpoena. In a criminal case, you will be paid after you travel to the designated place and testify as a witness.

If the subpoena was sent by ordinary first-class mail that is not proper service. However, the recipient may sign an acknowledgement acknowledging that they were served and waive the requirement of personal service. Be careful who signs for things sent to you. If you get your subpoena in the mail and return the acknowledgement or another person signs on your behalf, the court can issue a warrant for your arrest for failing to appear even if personal service is not established.

Material Witness Subpoena

If you are a material witness to a criminal trial, by application of either the Commonwealth or the defense attorney, the court may set bail for any material witness to appear. Bail may be monetary, or the person may be held until they testify. A material witness is one who’s testimony is essential for either the Commonwealth or the defense. In other words, the case cannot proceed without that witness. The application must set forth adequate cause for the court to conclude that the material witness will fail to appear when required if not held in custody or released on bail.

When You Receive a Subpoena

Read the subpoena carefully. The subpoena will tell you the names of the parties; the date, time and place you will need to appear; the name of the lawyer who issued the subpoena; and the location and type of court in which the case is taking place.

If the subpoena requires you to bring certain documents or other objects, they should be described in the subpoena or in a separate paper given to you along with the subpoena.

It is not an option to simply ignore the subpoena, even if there was some defect in the appearance or delivery of the subpoena. You must either appear as ordered or file papers with the court objecting to or seeking to quash (i.e. rescind) the subpoena. You should contact an attorney immediately to discuss your options.

Objecting or Quashing the Subpoena

You may object to any subpoena. If you have a legitimate reason for not wanting to comply with the subpoena, you or any person with a sufficient interest in the matter can file a motion to quash a subpoena. A motion to quash asks the court to issue an order that you are not required to comply any or portions of the subpoena. The court will often hold a hearing to determine if there is a valid reason (technical or legal) to quash the subpoena. A motion to quash can be filed for many reasons:

· the documents requested are confidential or protected from disclosure by the law (such as attorney-client communications, spousal communications);

· there is some technical defect in the appearance or delivery of the subpoena;

· the is some legal basis for challenging the validity of the subpoena;

· you are too far away from the place where you are required to appear;

· the subpoena is overly vague; or

· the required appearance or documents requested would cause an undue burden or cost to you.

The court may quash a subpoena to protect a party or witness or other person from unreasonable annoyance, embarrassment, oppression, burden or expense. You should file any objections with the court immediately, not on the date you are required to appear or provide the documents.

A subpoena will also require that you remain at the place described until the testimony is closed, unless the judge excuses you. But you should contact the lawyer for the party who subpoenaed you to find out if you may be called the next day, or on a day in the future. This may help to prevent confusion or unnecessary time spent waiting.

Minimum Compliance with Subpoena

What is the bare minimum you can do without getting into trouble? Minimum compliance with a subpoena means that you appear at the time and place directed. You must also bring whatever is requested specifically on the subpoena. When it comes to requested records, you must only comply with the language of the subpoena, not the intent. Minimum compliance means that you only need to bring the exact records requested. Even if you know there are other records out there, you need only produce those explicitly listed on the subpoena.

Failure to Comply with Subpoena

If you do not object to the subpoena or appear as the subpoena orders, a judge may find you in contempt of court. Contempt of court may result in a jail term in criminal proceedings. The court may also order you to pay fees to the parties who may have been damaged by your failure to appear. The court may also issue a warrant for your arrest. The sheriff may take you into custody and bring you to the place where your testimony is required.

If it is impossible or extremely difficult for you to appear as required by the subpoena, call the lawyer for the party who issued the subpoena. Usually, the lawyer’s name, address and phone number will appear on the subpoena. The lawyer might be able to postpone your testimony so you could testify at another time. But you should keep in mind that the lawyer may not be able to change the date and time of your appearance if a court date is already set and cannot be moved. If it is impossible for you to appear, or if it would be seriously harmful to your health or business, you should seek the advice of your own lawyer. If the appearance is for a deposition or to produce records, the issuing attorney will usually try to accommodate your schedule or help you better understand what documents they are seeking from you.

Receiving a subpoena in any type of case is a serious matter. You must get an attorney even if you have nothing to hide. Even if you are a victim of a crime, you should consult with an attorney. Defying the court can land you in prison or result in paying very hefty expenses for failing to comply. Don’t try to handle it yourself. Contact the experienced litigation attorneys at Fiffik Law Group for help.


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