How to Upset Your Witnesses Before Trial

It was a great weekend.  I flew out of town Friday morning to spend the weekend with three of my best friends in Nashville, Tennessee.  We hit all of the bars, heard some great bands, and braved freezing weather (maybe it wasn’t that cold, but we’re all from Florida, so it felt like it was freezing) to watch the Florida Gators beat Vanderbilt and secure our trip to the SEC Championship.

But when I returned home late Sunday night, what did I discover?  Much to my surprise, there was a subpoena waiting for me, “commanding” me to appear for trial at 8:30 the next morning.

My trial subpoena

Obviously, I’m no stranger to subpoenas.  During my career, I’ve been responsible for the issuance of thousands, perhaps tens of thousands, of subpoenas.  But up until that evening, I must confess that I hadn’t given much thought to how it feels to be on the receiving end of one of those subpoenas.

I don’t know how other witnesses react when they receive a subpoena, but my first reaction was…  Well, let’s just say my first reaction isn’t suitable for publication in a family newsletter like this.

My second reaction was, “How can I get out of this?”  Dozens of ideas ran through my head.  Could I argue that it was improper service since the subpoena had been left on my door, and not actually given to a household member?  Could I claim insufficiency of process because I’d received less than 10 hours of actual notice before I was expected to be in court?  Or maybe claim that I wasn’t legally served until the next business day, since I hadn’t been served until after 5 PM?  Or argue that everything I could possibly testify about would be work product, and therefore not subject to disclosure?

It was basically a “fight or flight” response.  My brain went into overdrive, trying to think of ways to either avoid going to court or to make it as difficult as possible for the attorney who “commanded” me to appear.

Which begs the question, why did I have such a hostile reaction to the subpoena?  And more importantly, do our witnesses feel the same way when they receive our subpoenas?

I don’t know if my reactions will be similar to your witnesses’ reactions when they receive a subpoena, but in hopes of giving you a little insight, here are three reasons why I had such a negative reaction to my subpoena (and some tips on how to get better reactions from your witnesses).

1. Subpoenas Have Negative Connotations. Before your witness even reads the subpoena, his immediate reaction is, “Uh oh, this isn’t going to be good.”

Remember the Black Spot from Robert Louis Stevenson’s Treasure Island? When the Black Spot was placed in the hand of a pirate, it meant that he had been adjudged “Guilty” and was marked for execution.  Obviously, receiving the Black Spot was a source of much anxiety.

A subpoena feels like the modern day equivalent of the Black Spot.  When you’re served with a subpoena, it feels like you’ve been marked.  Maybe not marked for death, but you know that subpoenas rarely come bearing good news.  No one ever subpoenas you because they want to guarantee you’ll show up at their birthday party.

2. Subpoenas Threaten You. When I get invited to formal affairs, the invitation usually reads, “We request the pleasure of your company” or “You are cordially invited to join us.”  When I get those types of invitations, I’m always eager to attend the event.

But my subpoena didn’t say anything like that.  They didn’t “request” my appearance or “invite” me to attend.  Instead, they said “YOU ARE COMMANDED to appear,” “you shall respond to this subpoena as directed,” and “IF YOU FAIL TO APPEAR, YOU MAY BE IN CONTEMPT OF COURT.” They even capitalized the phrases, to add the extra indignity of shouting at me from the printed page.  I don’t know about you, but I’m an independent spirit.  Whenever someone “commands” me to do something (even things I want to do), it gets my hackles up, because I bristle at the notion of being told what to do.

3. Lack of Professional Courtesy. The attorney who subpoenaed me wasn’t a stranger.  In fact, not only did I know him, but we had even worked together in the same office when we were criminal prosecutors!  Maybe we weren’t best friends, but still, you’d think he could extend me the courtesy of a telephone call telling me to expect the subpoena and why I was being called as a witness.  Frankly, he didn’t need a subpoena to secure my appearance — if he’d asked, I’d have shown.

Add all of this stuff together and what do you get?  Someone who probably won’t be in a great mood by the time he arrives in court to testify.

But that’s the exact opposite of what you want, isn’t it?  You don’t want a witness who’s upset and angry with you.  You want your witnesses to be cooperative and eager to testify.  You want them at their best when they arrive for court, right?

Here are a few tips that will help you improve the subpoena experience for your witnesses.

1. Tell him he’s a witness BEFORE the process server arrives. You don’t want him learning that he’s a witness in your case when he’s served with the subpoena.  Everything’s easier to deal with if we can plan for it in advance, so call him ahead of time so he can expect the subpoena, rather than being surprised by the process server.

2. Don’t wait until the last minute. Your witness has a life.  Even though this case may be the most important thing in your life and your client’s life, it’s NOT not the most important thing in the witness’s life.  Think what would have happened if I’d walked in through the back door of the house or if I’d extended my trip another day – I wouldn’t have known to be in court the next morning.  If my testimony was essential to his case, he’d be out of luck.  Don’t wait until the last moment to serve your witnesses – it may be too late.

3. Tell him when he’s actually needed. One reason why I was offended by the lack of communication from his office was because I knew I didn’t really need to be there when the subpoena was commanding me to appear.  Unless it was a bench trial with no pre-trial issues and they were waving opening statements (it wasn’t), when a trial is scheduled to begin at 8:30 AM Monday morning, you don’t actually need your witnesses there until later in the day.  But unless you’re excused from appearing, you need to be in court when the subpoena commands you to be there.  Since I obviously couldn’t contact his office at 10 PM on a Sunday night, I knew I’d be stuck going to court the next morning, even though I probably wasn’t needed until later in the week.

Your subpoena probably tells the witness to be there for the entire trial period, and lists the beginning date and time for the trial.  Rather than forcing the witness to unnecessarily rearrange his schedule, tell him when he really needs to be in court.

4. Let the witness know why you’ve listed him. Witnesses do better when they have time to prepare and know why they’re being called.  Since the attorney hadn’t given me the courtesy of a telephone call, I had no idea why I was listed as a witness in the case.  When I walked into court the next morning, I was going to be a lousy witness, because I didn’t have a chance to prepare.

If you want your witnesses to be prepared for trial and to testify at their best, spend some time in a pre-trial interview.  Obviously, 99% of the time, you’re going to do extensive pre-trial preparation with your witnesses, but sometimes (like with police officers or other professional witnesses), you might think you can put them on “auto-pilot” and let them testify.  Don’t be tempted to do it.  I guarantee you that none of your witnesses has as much courtroom experience as I do, but despite all those thousands of hours of court time, I still wanted to talk with someone before trial so I’d know what was expected from me.

Hopefully these tips will give you a little insight into what it’s like to be on the receiving end of a subpoena, so you can be a little more empathetic to your witness’s experience.  Good luck!

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5 thoughts on “How to Upset Your Witnesses Before Trial

  1. Thanks for writing this. I just received a summons the other day to be a witness in a trial. I have gotten 2 letters before this over the past year about a pretrial date so I knew there was a case, just not what it was about. I chose not to go to court on those 2 dates because I didn’t like how it would disrupt my life. Now I have no choice and I don’t even know why I was put down as a witness except that I used to work for this person. I wish they would be more specific about all the times I really need to be there. I have a life and things going on in it that I can’t just sit around for weeks wondering what days I need to go to court.

  2. i just copleted my Law Degree, and i attended a Law Practice in South Africa. I wil be Practicing in Botswana, but in essence i have realised that you are the Best in the Profession. Please, i have enomours interest in becoming a state Procecutor, could you kindly please provide me with tips and techniques of becoming the Best.

    i also wish you advice me on the choice of taking a route of being a magistrate before practicing.

    thank you i advance

    Regards

    Neo Cedric Kgothi

  3. Philly:

    Very funny! Oh I agree with you. More and more I find people just simply ignoring subpoenas. I selectively use this form with witnesses I am relativley comfortable will “obey.” If I suspect they will not, I start early–since it seems even the court sometimes does not take a subpoena seriously–and alert the court I may have a problem and ask for help through the sheriff.

  4. I like that, but I’m worried that it’s not obnoxious and menacing enough. Maybe you could mention the fact that if you don’t show up the subpoena will explode, or maybe you could personally hand-deliver the envelope at 3:00 AM in the morning by crashing through the witness’s door with a bulldozer. Anything to make our justice system run smoothly.

  5. HERE IS A LETTER I USE IN CONJUCTION WITH SPEAKING WITH THE WITNESS
    DEAR———

    This office represents _________________. The purpose of this letter is to explain to you why you were served with a subpoena to appear at trial. We have a duty to represent our client fully and zealously, and it is important that you tell us what you may know regarding his claim. Basically, we are aware he was your employee and because he had trouble remembering orders and dealing with customers you had to let him go. We need you to explain this to the jury.

    We realize, however, that you have no financial interest in the case, and we do not wish to inconvenience you any more than absolutely necessary. There are, however, many delays and postponements in lawsuits. Because you will be one of many witnesses testifying at trial, it is impossible for us to know exactly when you will be needed.

    Therefore, although the subpoena lists a particular time and date for you to appear, you may not be called until some time thereafter. We prefer that you would be on an “on-call” basis. If you agree to be on call, we will give you as much advance notice as possible by telephone of when and where you should appear for trial. We hope that this arrangement will lessen any inconvenience to you. If you do not agree to be “on-call”, you are required, pursuant to the subpoena, to be present on the date and time listed and to remain until discharged.

    If you agree to this arrangement, please indicate by signing the acknowledgement below and returning it to us promptly.

    Very truly yours,

    HOWARD F. MESSER PC

    Philip A. Fabiano

    PAF/alp

    ACKNOWLEDGEMENT

    I, _________________, hereby agree to obey the subpoena and all of its terms in the case of (name of case) and promise to remain on call for (trial or deposition testimony). I can be reached at the following addresses and telephone numbers:

    Day_________________________
    ____________________________
    ____________________________

    Night_______________________
    ____________________________
    ____________________________

    ________________________________
    (name of witness)