How to Subpoena Information for Small Claims Cases - dummies

How to Subpoena Information for Small Claims Cases

By Judge Philip Straniere

The closest thing to discovery in most small claims court cases is the use of the subpoena. A subpoena is a legal document that directs a person to come to court and either bring evidence needed for the case or testify as to the facts of the case.

Subpoenas are used to produce witnesses at the trial. For example, if you want a police officer to testify about the accident you’re suing the defendant about, a subpoena is necessary to get her to come to court. In fact, any time you need a witness who is a governmental employee, such as a police officer, the proper procedure is to subpoena the person to ensure that she shows up.

Although you may subpoena some records from a governmental agency for trial and ask that someone come from the agency to testify about the contents of the records, don’t be surprised if that person has no information about your case and is only the custodian of the records.

You may also want to subpoena someone who witnessed the event and is not a party in the lawsuit. If you need a witness and that person won’t appear voluntarily, a subpoena is needed to make her show up at the trial.

In civil litigation other than small claims court, your lawyer issues any subpoenas and makes sure they’re served. Because this is small claims court, you as either the plaintiff or the defendant needing the witness or documents ask the court to issue the subpoena.

Although the court issues the subpoena, you have to fill out the subpoena form and provide the information. The clerk or a judge may review the document before it’s served, depending on the practice in your small claims court. In many states, if you want someone from the government to appear, a judge has to sign, or so order, the subpoena. This may not be necessary for other subpoenas.

Sometimes you get before the judge and discover that you really need to subpoena some record to prove or defend your case. The judge, wanting to have the case decided on the merits and not on a party’s inexperience with the process, may tell you to go see the clerk and subpoena some particular record.

Listen to what the judge is saying to you — and write it down. Make sure you understand what you’re being asked to do. Judges don’t particularly like to have the clerk pop up 15 minutes later saying, “Judge, there’s a guy downstairs who says you told him to get a subpoena. He has no idea what you said.”

In some states, the litigant who wants to subpoena records needed to prove her case or needs a witness to appear at the trial to testify is responsible for having the subpoena served. Check with the clerk as to the proper method to serve a subpoena in your small claims court. It may or may not be the same way the summons and complaints are served.

If you’re responsible for having the subpoena served, keep some notes on how you did it and if necessary you may have to fill out an affidavit of service. It’s never a good idea to serve something yourself because if there is a dispute as to what you did as a party you’re presumed to be biased.

If you don’t serve the subpoena properly, two things may happen:

  • You now have to ask for an adjournment to properly serve the subpoena, which, of course, delays your case.

  • The judge tells you it’s too bad; the trial is now and you have to go forward. Without the information you need to prove your case, you substantially reduce your chance of winning.

Say, for example, that after you move into your new house, a dispute arises as to some personal property the seller was supposed to leave and didn’t. You want the lawyer who represented you at the purchase to testify as to what was agreed to with the seller at the closing. Although your lawyer wants to testify, in many states, the ethical rules require that she be subpoenaed to testify.

If you need certain records, you also need a subpoena, especially if the records are from a governmental agency. For example, you keep having sewage backups in your basement from the municipal sewer line. You need to subpoena the local sewer department records to establish whether they have been maintaining the sewers and whether other customers have made complaints about the problem to them.

If you have to subpoena records, make sure you have the subpoena served far enough in advance so that the person has enough notice to show up and the person who keeps the records you want has time to get them. This is especially true of governmental agencies, which sometimes are a little bit slow in responding.

If you subpoena records there may be a charge for photocopying, or if you subpoena a witness there may be a fee fixed by the rules to compensate the person testifying, such as a mileage charge. You can avoid any surprise fees if you prepare your case in advance and discuss charges with the clerk or the help center if there is one.