Litigation is combative even in the simplest of cases. When witnesses and oral testimony are involved, the tension ratchets up another notch.
Still, you don’t want to be on the sidelines of powerful oral testimony simply because you’re pro se. In fact, become the main combatant. At a deposition or trial, you’ve got a nervous witness, a wary lawyer, and a questioner who’s licking his chops. If you’re the questioner, bon appétit.
Bringing oral testimony into a case requires a subpoena. A subpoena is a court order to be a witness at a deposition or trial. Unsurprisingly, a subpoena is required because many witnesses are reluctant to appear in a court setting to answer questions. A subpoena is the court’s way of forcing them to testify. A related order, the subpoena duces tecum, requires the witness to appear and bring with them certain documents or items.
Since depositions are more expensive than other forms of discovery, you want to be selective in choosing your witness(es) and serving subpoenas. Below are some guidelines.
Why You Need Oral Testimony
You’re nearing the end of discovery. Both parties have sent and received requests for interrogatories and requests for production of documents. You’ve objected, supplemented, and even compelled responses to support your case. Yet, you still don’t have all the evidence you need. In other words, the written discovery wasn’t enough. You need another way to get information that has proven to be elusive. You need oral testimony from a witness on the stand under oath.
Before You Begin
Review rules of civil procedure.
Every court has a process or rule for serving subpoenas. Find the local rules for your court and rules of civil procedure for your state, become familiar with them, and follow them. Court clerks can’t provide legal advice, but they can tell you where to find court rules. The court clerk may also provide a subpoena form for you to complete. If the form does not reflect what you need, use it as a guideline for customizing your own subpoena. If the form is required, complete it and write any additional information you feel is needed.
Review rules of evidence.
Questioning witnesses is arguably the biggest evidence-gathering technique available in a civil case. To do it right, review the rules of evidence for your jurisdiction. The evidence rules provide guidelines for subpoenaing witnesses and oral testimony. You’ll become familiar with concepts like admissibility, leading questions, hearsay, unduly harassing, impeachment, and so on.
Review the evidence you’ve already collected.
Before you prepare the subpoena, determine the evidence you need. Collect all the written responses received from your opponent, including admissions, interrogatories, documents, and supplemental discovery. Go through the collection and match the elements of your claim or defense with the evidence you have. Take note of any claim or defense that’s not supported by evidence.
Identify the person(s) with the information you need.
Now, identify the person who holds the information you need or has access to that information. This person can fill any gaps you’ve found in the evidence. If that person can also provide documents, keys to safe deposit boxes, and other things in addition to their oral testimony, all the better. Try to find the person or persons who can provide the most evidence. That way, you’ll limit the number of people you need to subpoena. If your opponent is a company, and you don’t know the actual person or department with the information you need, cast a wide net and subpoena a higher-up, like a vice president.
Get a court reporter.
If the witness is needed for a deposition, search the Internet for a local court reporter and schedule them for the event. Nothing compares to a court reporter when it comes to making a legal procedure formal, proper, and civil. They swear in witnesses and record testimony. They organize and collect exhibits, and they conduct other tasks as required by law. There is no deposition without a court reporter.
Prepare the Subpoena
- Create one subpoena per witness.
- List the name and address of each witness on the subpoena.
- In each subpoena, specify whether the witness is to appear at trial or deposition.
- Prepare the summons. The summons orders the recipient to appear in a specific place at a specific time for oral testimony and/or to produce evidence.
- In the subpoena duces tecum, list the specific items you need the witness to bring. This includes documents, thumb drives, or other objects in his or her possession or under his or her control.
- Include additional information the witness may need, like the location of the deposition, contact information, and so on.
- Include a warning that the court may hold the witness in contempt if they fail to appear or produce evidence as required by law. Cite the statute or rule number that supports this warning.
- Sign the document, and prepare a certificate of service or other notification. The certificate of service informs parties of the deposition.
- Return signed forms to the court clerk.
- Follow jurisdictional rules for serving the subpoena on witnesses and notifying other parties.
- Take proof of service of each summons to the deposition or trial.
When you’ve been in a tug of war with your opponent for months trying to get evidence on the record, and you still have gaps, consider questioning witnesses. It’s one of the best ways to prove or disprove a claim or defense. In fact, sometimes it’s the only way to get certain evidence on the record. So don’t let your pro se status stop you. Subpoena your witnesses. Then the fun really starts. Time to lick your chops.
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