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What to Do If You’re Subpoenaed to Be a Witness

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The threat of professional liability legal trouble is real. A report from Syracuse University shows between 20,000 to 25,000 civil lawsuits are filed in the U.S. each month, and 10.5 percent of those are tort cases, which include personal injury and product liability. We live in a litigious society, and even if you’re not being personally sued by a client, you can still be drawn into a legal dispute as a witness in a case involving your employer or co-worker.

If you receive a subpoena to testify as a witness, hundreds of questions may start swirling around in your head: What is this about? Do I have to go? What do they need from me? Will I have to take time off work for this?

Don’t panic. We’ll walk you through what you need to know and share our tips for how to handle the situation before, during, and after you’ve given testimony.

What Is a Subpoena?

A subpoena is a formal demand from the court to produce evidence in connection with a court case. There are two common types of subpoenas:

  1. Subpoena ad testificandum: This is typically what people think of when they hear the word “subpoena” — probably due to TV dramas. It’s essentially a summons for you to testify in court or before another legal authority. A subpoena ad testificandum usually includes a specific time and date for you to be present in court or at a legal proceeding.

  2. Subpoena duces tecum: For this type of subpoena, you might not have to testify but instead will need to provide documentation or other evidence that could be helpful in a court case.

In both cases, a subpoena gives an attorney the chance to obtain information to help prove or disprove a client’s case. It will always include information about the court case, including the names of the plaintiff and defendant, a case number, and the name of the attorney who issued the subpoena or asked for it to be issued. If your subpoena is not classified as one or the other, it’s likely an “ad testificandum,” but you can call the lawyer’s office to ask.

What Does It Mean to Be Subpoenaed to Be a Witness?

A witness is a person who is deemed to have information about an alleged crime, incident, or event (which could include an alleged act of negligence), or about those who were allegedly involved in those circumstances. As such, they are summoned by one of the involved parties to answer questions under oath (either out of court — such as a deposition — or during a hearing or trial) about what they know and/or saw. And yes, you may be called by the legal team that is suing your co-worker.

According to the U.S. Department of Justice, there are three types of witnesses:

  1. A lay witness is someone who observed an event or incident and can be called to testify about what they saw or heard. This is the most common type of witness.
  2. An expert witness is a specialist who can give testimony specific to their area of expertise, such as the standard of care.
  3. A character witness is someone who knows one of the parties involved in the case and can give testimony about the type of person they are.

If you’re subpoenaed to be a witness, you’re required to comply with the requirements of the subpoena and will take an oath to testify truthfully about any information you know. The information a witness provides in a legal matter is called “testimony” and is used to establish the facts surrounding the incident or event in question.

Can I Refuse to Be a Witness If I Receive a Subpoena?

In short: no. If you’ve received a subpoena to testify — either in court or at a deposition — you can’t refuse to be a witness.

What Happens If I Ignore a Subpoena?

The word “subpoena” is actually Latin for “under penalty,” meaning that there could be penalties if you don’t comply with the subpoena. Ignoring the subpoena could lead to serious legal consequences. In the event you don’t show up, a judge could issue a warrant for your arrest, and you may even be charged with contempt of court — which carries serious penalties, including fines, jail time, or both. If you can’t make the date to appear in court or at a deposition, be sure to contact the lawyer who issued the subpoena immediately.

What Should I Do After Receiving a Subpoena?

1. Thoroughly read the subpoena.

The first thing you should do after receiving a subpoena is read it so you can determine what type of subpoena it is, who is involved (you will likely recognize a colleague’s name), and what the case is about. Also, be sure you’re able to answer the question “What does the court want me to do?” after reading the summons to ensure you respond appropriately and take the right action to avoid any penalties.

2. Respond to the court.

Typically, a subpoena is served via mail, email, or by hand. Either way, an acknowledgement of receipt is requested, and the subpoena itself should provide steps on how they’d like you to respond. If you have any objections to the subpoena, won’t be available to testify, or can’t provide information requested in the summons, be sure to contact the court immediately. If you have a lawyer, have the lawyer do this on your behalf.

3. Make arrangements.

In the event the subpoena requires you to appear in court, don’t forget to make all necessary arrangements, such as taking time off work or organizing support to keep your business running smoothly in your absence.

What NOT to Do After Receiving a Subpoena

1. Panic.

It’s normal to be nervous (being a witness in a legal matter is rare and serious), but panicking could lead to mistakes. Instead, sleep on it, then start planning.

2. Ignore it.

You’re legally obligated to meet the requests of the subpoena, unless a lawyer seeks to modify or extinguish it. Ignoring a subpoena puts you at risk for legal recourse.

3. Change, delete, or destroy any documents or information related to the case.

Doing so can result in penalties and cause more problems in the long run.

Can I Talk About the Case With My Co-Workers?

If this is a professional liability case, it’s going to be tempting to discuss it with your colleagues, especially anyone else who was subpoenaed or directly accused. But as tempting as it might be, you shouldn’t talk about a case with your co-workers. Why? Simply put, your memory could be impacted by doing so.

While it’s not illegal to discuss the case with others (unless the court has instructed you not to do so), the lawyers, judge, and jury (if applicable) want to find out what your memory is regarding what you saw or heard. Discussing the case with a co-worker may alter your memory and, thus, your resulting testimony. Plus, one of the lawyers may ask you whether you’ve discussed the case with anyone, and if you have, they’ll likely ask you a bunch of questions about what you said, what they said, and whether there are any texts or emails, etc.

So, it’s just best not to talk about the case.

Should I Get My Own Lawyer?

Many witnesses testify without a lawyer unless the matter also relates to allegations or claims against the witness. You certainly have a right to consult with a lawyer, who might be provided for you through your employer or your insurer.

If you’re uneasy about the case or about providing testimony, you can always seek advice from an independent attorney who will help determine whether you should hire your own legal counsel. However, it’s very normal and completely understandable to be a bit nervous when it comes to testifying as a witness.

Will I Be Paid for My Testimony?

Usually only expert witnesses get paid for giving testimony, so you won’t be paid for the testimony you give during a trial. However, you may be entitled to reimbursement to cover expenses related to appearing to testify at a deposition or in court, such as for travel and lodging (if applicable). Don’t be bashful about asking the lawyer who issued you the subpoena whether you will be compensated for such expenses (either through them or the court), and, if so, how much is available.

What Should I Expect as a Witness?

Before the Trial

When you receive a subpoena to testify at a deposition before the trial, that means one of the lawyers wants to learn more about what you know, saw, or heard. This may impact whether or not the parties explore a settlement or proceed to trial.

Even though depositions typically take place in a lawyer’s office, you’ll be given an oath to tell the truth and your testimony will be recorded by a stenographer or sometimes even a videographer. In addition, lawyers for other parties may be present and likewise have a chance to ask you questions.

The subpoena may also require you to bring certain documents to the deposition, so be sure to make a diligent search for them ahead of time. However, any documents that capture discussions between you and a lawyer regarding legal advice may be privileged. So, before you produce them, always discuss the documents you plan on bringing with the lawyer you spoke with.

Once your deposition is over, it could be months before you’re actually called to testify in court. Furthermore, because many cases settle before trial, you may never be called to testify again. If, however, you are called to testify again at trial, it may be a good idea to review the transcript from your earlier testimony to refresh your memory so that you are able to testify consistently. If you’re concerned about testifying in court, you can always discuss the process with your own counsel, even if you chose not to speak with a lawyer about your deposition.

During the Trial

On the day you are set to testify in court, a judge may not allow any witnesses into the courtroom right away. Instead, it’s likely that you’ll be asked to remain outside in a waiting area until you’re called to give your testimony. This is the best way for the judge to ensure your statement won’t be impacted by the testimonies of other witnesses.

Before you testify, a court clerk will ask you to give an oath to tell the truth the entire time you’re on the witness stand. Then, the lawyers involved with the case will take turns asking you questions. These questions may be different from the questions they asked at the deposition because those were fact-finding, should-we-proceed-with-this-case questions. Now, you’re being asked questions that the lawyers specifically want the judge or jury to consider.

After you testify, you may be allowed to stay in the courtroom and listen to the rest of the trial. If you’d prefer to leave, make sure you’re free to go, as sometimes lawyers reserve the right to recall a witness. You may still be under obligation of the subpoena to stay in the courtroom.

After the Trial

Even though your role as a witness in the case may be done, you should still not discuss what you said or heard in court with other witnesses who haven’t yet given their testimony. And of course, avoid the temptation to post information related to the case on social media. You can, however, discuss the case after the judge and/or jury has made a decision.

11 Tips for Testifying as a Witness

The U.S. Department of Justice provides some tips for court witnesses:

Tip #1: Be yourself.

Explain the events using your own words and terms, otherwise your testimony won’t feel genuine.

Tip #2: Be courteous.

When being sworn in, stand tall and say “I do” loudly and clearly. You want to make sure everyone knows you’re taking this seriously. Behave in a way that demonstrates your respect for the gravity of the situation, and that you know this is not something to be taken lightly. Avoid laughing, even if it’s a nervous habit. Practice in a mirror if you need to.

Tip #3: Tell the truth.

Answer the questions you’re asked to the best of your ability. Don’t exaggerate or try to present information in a way that favors one side or the other.

Tip #4: Listen closely.

Pay close attention to the question you’re being asked. If you don’t completely understand the question, ask for clarification before answering. And remember, if one of the lawyers is making you feel doubted, they are just doing their job. Stay focused and confident.

Tip #5: Think before you speak.

Aim for a thoughtful response, and don’t let anyone rush your answer.

Tip #6: Speak simply.

You’ll want everyone to hear, understand, and trust your testimony. Don’t volunteer extra information or succumb to nervous talking.

Tip #7: Avoid using jargon.

If you need to refer to work terms, be sure to stop and explain them.

Tip #8: Don’t be afraid to say “I don’t remember.”

If you honestly can’t recall the answer to a question, that’s OK. Similarly, don’t be afraid to say “I don’t know” if you never knew any information about a question you’re asked.

Tip #9: Stick to the facts.

Remember, you’re only in court to state facts, not to give your opinion or convince anyone of anything. If you make a mistake while testifying, immediately ask for it to be rectified and clarified.

Tip #10: Avoid “set-up” questions.

Unless you’re 100 percent certain, don’t say things like “nothing else happened” or “that’s all we talked about.” Instead, say “that’s all I remember talking about,” which creates a small window if you remember something important later.

Tip #11: Don’t discuss the case or your testimony.

It’s OK to talk to the lawyers, but make sure to avoid conversations with co-workers or family, especially in the courthouse where the jurors might be lingering.

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Last updated on Feb 10, 2023.

Originally published on Jan 24, 2019.

The views expressed in this article are those of the author and do not necessarily reflect those of Berxi™ or Berkshire Hathaway Specialty Insurance Company. This article (subject to change without notice) is for informational purposes only, and does not constitute professional advice.

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