Washington

How to Subpoena Witnesses and Documents

Authored By: Northwest Justice Project LSC Funded
Contents
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Information

This publication is a summary of law found in laws and court cases. If you want to do more research, we have included citations. A citation is the place where you can find the information summarized.

Do I need this packet?

If you are 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 get someone 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.

What is in this packet?

This packet has the forms and instructions for the following (the forms are in Microsoft Word fill-in format):

Some words to know:

  • 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."

How do I use a subpoena?

If you are not an attorney, the subpoena or subpoena duces tecum must be issued by the court clerk. You must do all of the following:

  1. fill out the forms as the way this packet tells you to;

  2. have the order for issuance of subpoena signed by a judge or court commissioner;

  3. have the court clerk issue the subpoena;

  4. make a copy of the subpoena for the witness you are serving;

  5. keep the original for yourself;

  6. serve the subpoena on the witness; and

  7. bring the original subpoena form to court on the day the witness is supposed to be there.

How do I fill out the forms?

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. It 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. Fill in the county, the names of the parties, and the case number.

"TO:" – After the caption, you will see the word "TO:". After that word, write in the name and address of the witness you are serving with the subpoena.

Date and Time Blanks – Fill in the date and time for the witness to show up. If this is for a short evidentiary hearing, you may want all of your witnesses there at the time the hearing is 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: marking exhibits that will be placed in evidence; allowing each side to make an opening statement.)  You should allow at least a half-hour for these preliminary matters. After that, you may want to schedule your witnesses fifteen to thirty minutes apart, depending on how long you think it will take you to ask them questions.

  • Your hearing or trial may not begin right at the time it is scheduled. Send your witnesses a letter or note explaining that there may be a delay in putting them on as witnesses if the hearing/trial does not 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 will actually need them.

Here is another hint to help you schedule your witnesses:  If you are the plaintiff/petitioner, then you will call your witnesses first, so begin scheduling your witnesses for the first day of trial. If you are the defendant/respondent, then your witnesses will be called after the witnesses of the plaintiff/petitioner have finished testifying.

It is good to know how many witnesses the plaintiff/petitioner plans to call. Ask the plaintiff/petitioner how long the testimony of his/her witnesses should take. Try to schedule your witnesses right 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, and 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 will be testifying for. Fill in "plaintiff"/"petitioner" or "defendant"/"respondent."  If you do not 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 are only asking for a person to 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 are asking for a letter, state the names of the people sending and getting the letter, and the date of the letter. If you do not know the specific names of documents you need, or to be sure you get everything you want, add "and all other documents concerning ____________," filling in the name or event for which you are requesting the documents.

Date and Signature Lines – Do not fill out these lines. This is where the judge or court commissioner will date and sign the order for issuance of subpoena.

How do I get the forms signed and the subpoenas issued?

Call the Superior Court clerk to find out what to do to get the order signed by a judge or court commissioner and get the subpoenas issued.

How do I serve the subpoena once the clerk has issued it?

A subpoena must be served personally by someone over age 18 who is not a party to the lawsuit. You cannot serve the subpoena yourself since you are a party (plaintiff/petitioner or defendant/respondent). You can use a sheriff or professional process server. It is easiest and cheapest to use an adult friend or family member. Your server must do one of the following:

  1. personally hand the witness a copy of the subpoena, wherever the witness can be found; or

  2. 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 is 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 fill out the "Affidavit of Service" form in this packet. You can fill in the caption for the server. The server must fill out 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 does not come to trial or does not bring the documents you asked for.

Does it cost money to subpoena witnesses or documents?

If you use a sheriff or professional process server to serve the subpoena, there is a charge for service. Check with the server first to find out the amount of the charge.

If you are 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 also, by law, ask for a “witness fee” for going to 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 will need to negotiate this with them ahead of time. There is no fee for testimony by court appointed special advocates (CASA) and Family Court Services workers.

What about witnesses who live farther away?

You must pay extra fees to subpoena a witness who:

  • lives outside the county or
  • lives more than twenty 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 more for meals, lodging, and travel at the time of the hearing or trial.

How long does the witness have to stay?

The witness must stay until s/he has 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 does not obey the subpoena?

If a witness does not come to the hearing or trial or fails to bring items requested in the subpoena and there is no good excuse, then the court may hold the witness in contempt of court. That 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 fails to bring the items you asked for, 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.

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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, June 2012.

© 2012 Northwest Justice Project. 1-888-201-1014
(Permission for copying and distribution granted to the Alliance for Equal Justice and individuals for non-commercial use only.)