If you are involved a legal matter, you may need to compel witness testimony or documents to obtain evidence to prove your case or to disprove the other party’s case. You may obtain this evidence by use of the subpoena (also spelled subpena) process. Subpoenas are used both in discovery (where the parties attempt to obtain information relevant to the case) and at trial (where the case is heard by a judge or jury).
A subpoena (which means “under penalty” in Latin) is a writ issued by a court, other government agency or an attorney which compels a person or entity representative to appear and to give testimony and/or to provide documents for use in the underlying legal matter. Generally, there are two types of subpoenas, a subpoena ad testificandum (which means “under penalty to testify” in Latin) which is used to obtain testimony, and a subpoena duces tecum (which means “take with you under penalty” in Latin) which is used to obtain the production of records.
The first step in the subpoena process is issuing the subpoena. In some states, this is done by the court, while other states permit lawyers to issue subpoenas. Normally, blank subpoena forms are available which contain general information such as the caption of the case, location of the court and the location, date and time at which the person or entity representative must appear to testify or to produce documents. Subpoenas often include language commanding the person/entity representative to appear and warning of penalties for failure to comply.
The attorney normally completes the subpoena form and arranges for service on the person or entity from which the testimony or records are requested. If you are representing yourself, many states require that the court clerk issue the subpoena. Requirements vary from state to state, and it is important to familiarize yourself with the rules of your state, to avoid the need to re-serve a subpoena that was defective. Various state rules regarding service of subpoenas may be found at http://www.served.com/rules.html. Federal rules regarding subpoenas may be found at Legal Information Institute (LII) at Cornell University.
Some states, California for example, have strict privacy laws regarding consumer records and require that a “Notice to Consumer” be served on the consumer whose records are being sought, prior to service of the subpoena. Failure to do so may result in sanctions and/or the subpoena being quashed (voided). The Sacramento County Law Library has an excellent summary of the procedure to follow to issue a subpoena duces tecum for consumer records.
Normally, service of a subpoena must be made in person by an adult who is not a party to the legal matter. If you are representing yourself, you may wish to pay a local attorney service to handle service of the subpoena for you. These businesses are usually highly knowledgeable about the specific requirements of the jurisdictions in which they operate, and it will likely save you money in the long run to pay for their expertise.
Obtaining testimony using the subpoena process can be complicated, expensive and time consuming. When in doubt, it is best to seek legal advice. Missing a deadline or special service requirement could cost you much more (by denying you access to evidence) than the cost of obtaining professional advice.