This publication is a summary of law contained in Codes, Statutes and Court Cases. If you want to do further research, we've included citations. A citation is the place where the information summarized can be found.
If you're going to an evidentiary hearing or trial and you need to make sure that a witness shows up, or that someone brings documents or other items, you can have the person served with a subpoena issued by the court clerk.
For the attendance of a person: use a subpoena.
To require a person to bring documents or other items, use a "subpoena duces tecum."
Special rules may apply when you want a health care provider to bring health care information. RCW 70.02.060.
Affidavit: written statement made under penalty of perjury.
Ex parte: Going before the court without notifying the other party. Also can refer to the courtroom where you see a judge without notifying the other party.
Subpoena: Latin for "under penalty."
Subpoena duces tecum: Latin for "bring with you under penalty."
Which form to use - If you only need the person to come to the hearing or trial and testify, use the subpoena form. If you need the person to bring documents or other items, whether the person will testify or not, use the subpoena duces tecum form.
Caption - First, fill out the caption which is at the top of the first page. Copy the information for the caption from one of the other forms you or the other party has filed in the case, filling in the county, the names of the parties, and the case number.
"TO:" - After the caption, you'll see the word "TO:". After that word, write in the name and address of the witness you're serving with the subpoena.
Date and Time Blanks - Fill in the date and time for the witness to attend. If this is for a short evidentiary hearing, you may want all of your witnesses there at the time the hearing's scheduled to start. If this is for a trial, you should probably not have all of your witnesses there at the time the trial is scheduled to start. The court will usually take up other matters before any witnesses testify. (Examples of other matters include marking exhibits that will be placed in evidence and allowing each side to make an opening statement.) You should allow at least one half-hour for these preliminary matters. After that, you may want to schedule your witnesses 15 to 30 minutes apart, depending on how long you think it will take you to ask them questions.
Remember: your hearing or trial may not begin right at the time it's scheduled. You should send your witnesses a letter or note explaining that there may be a delay in putting them on as witnesses if the hearing/trial doesn't start on time.
With people like counselors, teachers, doctors, or other professionals, you should make special arrangements to notify them by phone when the trial starts and give them a better estimate of when you'll actually need them. Here's another hint to help you schedule your witnesses: If you're the plaintiff/petitioner, then you'll call your witnesses first, so you can begin scheduling your witnesses for the first day of trial. If you're the defendant/respondent, then your witnesses will be called after the witnesses of the plaintiff/petitioner have finished testifying.
This is why it's helpful to know how many witnesses the plaintiff/petitioner plans to call. Ask the plaintiff/petitioner how long the testimony of his/her witnesses is expected to take. Try to schedule your witnesses immediately after the plaintiff's/petitioner's witnesses are expected to finish.
Location Information - Fill in the name and address of the Superior Court for your county, as well as the room number, if the case has been assigned to a specific judge. Call the court clerk to get this information. The final blank in this paragraph tells the witness which party s/he'll be testifying for. Fill in "plaintiff"/"petitioner" or "defendant"/"respondent." If you don't know which one you are, look for your name in the caption.
Items to be Brought - This appears only on the subpoena duces tecum form. Skip this paragraph if you're only requesting that a person come to trial without any documents. Fill in the name or description of each document or item that you want that witness to bring. Be as specific as possible. Example: if you're asking for a letter, state the names of the people sending and receiving the letter, as well as the date of the letter. If you don't know the specific names of documents you need, or you want to be sure you get everything you want, you can add "and all other documents concerning ____________," filling in the name or event for which you're requesting the documents.
Date and Signature Lines - Don't fill out these lines. This is where the judge or court commissioner will date and sign the order for issuance of subpoena.
A subpoena must be served personally by someone over age 18 who's not a party to the lawsuit. You can't serve the subpoena yourself since you're a party (plaintiff/petitioner or defendant/respondent). You can use a sheriff or professional process server, but it's easiest and cheapest to use an adult friend or family member. Your server must do one of the following:
personally hand the witness a copy of the subpoena, wherever the witness can be found; or
leave a copy of the subpoena at the witness's residence with another adult who lives there.
The person who serves the subpoena must then fill out and sign a paper describing the service of the subpoena. A sheriff or professional process server usually provides this proof of service form as part of serving the person. Ask first to be sure the proof of service is included. If it's not, give the server the form in this packet to fill out and return to you. If you have a friend or family member serve the subpoena, s/he must complete the "Affidavit of Service" form in this packet. You can fill in the caption for the server, but the server must complete the rest. After you get the completed form back, make a copy for yourself. Save the original to bring with you to court (along with the original subpoena) in case the witness doesn't come to trial or doesn't bring the requested documents.
If you use a sheriff or professional process server to serve the subpoena, there's a charge for service. Check with the server first to find out the amount of the charge.
If you're asking that a witness bring documents, pictures, or other evidence, the witness may ask the court to make you pay the reasonable cost of getting or copying the documents or other evidence. Witnesses can, by law, request a witness fee for attending the hearing or trial. Your "expert" witnesses such as counselors, doctors, or therapists may require you to pay them for their time at their usual hourly rate if they must testify. You'll need to negotiate this with them ahead of time. There's no fee for testimony by court appointed special advocates (CASA) and Family Court Services workers.
You must pay additional fees if you want to subpoena a witness who lives outside the county or lives more than 20 miles from the place where the hearing/trial will be held. For those witnesses, when the judge or court commissioner signs the order for issuance of subpoena, it may include an allowance for meals, lodging, and travel expenses. Those amounts will be written on the subpoena and must be presented to the witness at the time the subpoena is served. The judge or court commissioner may add additional amounts for meals, lodging, and travel at the time of the hearing or trial.
The witness must stay until s/he's given testimony and been cross-examined (questioned by the other side), unless the court orders that the witness stay longer. Example: either party may ask the court to order the witness to stay to respond to the testimony of a later witness.
What if the witness doesn't obey the subpoena?
If a witness does not come to the hearing or trial or bring items requested in the subpoena and there is no good excuse, then the court may hold the witness in contempt of court, which could result in a fine and/or jail time. This is why you save the original of the subpoena, along with the proof of service. If the person does not come to the hearing or trial or bring the requested items, give the original subpoena form and the proof of service to the judge or court commissioner. After the hearing or trial is over, file the original subpoenas and affidavits of service with the court clerk.
This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice. This information is current as of the date of its printing, March 2010.
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