Civil Litigation Legal Topics Litigation Strategy Trial Strategy

Even Friendly Witnesses Should Be Subpoenaed

99195776Most experienced trial lawyers subpoena all witnesses, even friendly witnesses they intend to call at trial. Not doing so is just too risky.

Failing to subpoena a friendly witness is risky in terms of obtaining a continuance from the court if a key witness doesn’t appear and of subjecting yourself to malpractice exposure if you’re forced to trial without testimony essential to your case.

California attorneys commonly subpoena all trial witnesses for the same time and place (e.g., to Department 1 at 9 a.m. on the first day of trial) and include a letter confirming the subpoena’s instructions that, under CCP §1985.1, different arrangements may be made if requested.

The accompanying letter should explain that the witness must appear at the stated time and place, and that the court may order the witness back each following day until he or she actually testifies.

Attorneys who use this method find that witnesses understand the subpoena process better and are much more willing to agree to a schedule of notification and appearance.

There are several advantages to using the subpoena process, including that a subpoena:

  • Impresses the witness. A subpoena can impress a witness with the importance of the proceeding.
  • Increases likelihood of getting a continuance. Without a subpoena, the court will be less inclined to grant a continuance or even a brief recess when an important witness doesn’t appear at the agreed time and place.
  • Makes the witness appear less biased. A subpoena makes it more difficult for the opposing party to suggest bias, as they would by getting the witness to admit that he or she appeared voluntarily and without a subpoena.
  • Entitles the witness to reimbursement. Service of the subpoena entitles the witness to reimbursement for witness fees and mileage. It can also be shown to an employer to justify paid time off when the witness appears at the trial, thus helping to mitigate the inconvenience and expense associated with testifying.
  • Is needed to enforce contempt proceedings. Without a formal subpoena, counsel can’t enforce contempt proceedings against a witness who has failed to appear at the agreed time and place.

Despite these advantages, be sure that the subpoena process doesn’t antagonize an otherwise friendly witness. Make sure to call the witness ahead of time to explain that a subpoena will be issued and ask where and when the subpoena can be conveniently served.

Note that you don’t need to serve a subpoena on the friendly witness if he or she resides outside the subpoena power of the court, cannot be deposed outside the state without great expense, and agrees to travel to California for the deposition.

Want more information on subpoenas to testify, including a sample letter to accompany the subpoena? Turn to CEB’s California Trial Practice: Civil Procedure During Trial, chapter 4 on compelling attendance and production evidence. And for step-by-step assistance with subpoenas, check out CEB’s Handling Subpoenas.

Other CEB blog posts you may find useful:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

6 replies on “Even Friendly Witnesses Should Be Subpoenaed”

This topic reminds me of a devastating scene from “The Verdict” (1982) where Paul Newman’s character, Frank Galvin, a plaintiff’s attorney in a very serious injury case, fails to subpoena his star expert witness, who unexpectedly disappears on the eve of trial. (Witness was bought off by the defense and conveniently sent on a vacation out of the country.)

Galvin goes to the judge’s house, desperately begging for a continuance. Judge Hoyle coldly replies: “This case should never have come to trial. But you know better. You’re mister independent. You want to be independent? Be independent NOW. I have no sympathy for you.” And then shuts the door on him.

I wasn’t even a lawyer back then when I saw that, but it sure made an impression on me!

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