Subpoenaing witnesses and documents

Yes, you should read this if you're going to a hearing or a trial in a Washington State court, and you need a witness to testify or bring documents or other items. You will learn what it means to subpoena a witness or documents and how to subpoena someone.

The word is Latin and means "under penalty." This court form, signed by a judge, orders someone to come to court to testify or bring evidence. To get someone to testify, you use a regular subpoena. To get someone to bring papers or other items to a trial, you use a "subpoena duces tecum." Subpoena duces tecum is Latin and means "bring with you under penalty."

You must:

• Fill out the appropriate forms.

• Ask the court clerk how to get a judge to sign the order for issuance of subpoena.

• Have the court clerk issue the subpoena.

• Make a copy of the subpoena for the person you're serving.

• Keep the original.

• Have someone else serve the subpoena and fill out a Proof of Personal Service form.

• Bring the original subpoena and Proof of Personal Service to court the day of the trial.

You should use the sample forms here only after first checking with the superior court clerk. Your court may have its own forms you must use.

Forms in this packet:

• Form NJP General 021: "Motion for Issuance of Subpoena"

• Form NJP General 022: "Order for Issuance of Subpoena"

• Form NJP General 023: "Subpoena or Subpoena Duces Tecum in a Civil Case"

• Form NJP General 001: "Proof of Personal Service"

For a short hearing, you may want all witnesses there at the scheduled start time. But make sure your witnesses know beforehand that the hearing may not start right when scheduled.

For a trial, the judge will have other matters to take care of at the scheduled start time, like opening statements and marking exhibits. You should ask your first witness to show up about a half hour after the scheduled start time, and other witnesses 15 to 30 minutes apart after that, depending on how long you think your questioning will take.

If you're the person who filed or started the case (called the plaintiff or petitioner), you'll call your witnesses first. You should schedule your witnesses for the first day of trial.

If you're the defendant or respondent, the judge will call your witnesses after the plaintiff's witnesses have finished testifying. You can ask the plaintiff before the trial date how long their witnesses' testimony should take. Then you can try to schedule your witnesses right after you expect plaintiff's witnesses to finish.

Check the box for "Subpoena Duces Tecum" on the subpoena form and list the specific items you want the witness to bring. Be as specific as you can. For example: You want the witness to bring a letter. In the subpoena duces tecum, put the names of the people who sent and got the letter, and the date of the letter.

If you do not know the specific names of what you need, or to make sure you get everything you want, put something like "and all other documents concerning ____________." Put the name of and event you want the documents for.

Ask the Superior Court clerk what to do. 

Someone age 18 or over who is not a party to the lawsuit must deliver (must serve) the subpoena for you. You can use a sheriff or professional process server. Or it is easier and cheaper to use an adult friend or relative.

Your server must do one of these:

• hand the witness a copy of the subpoena (this could happen wherever your server finds the witness)

• leave a copy of the subpoena at the witness's home with the witness or another adult who lives there.

Yes. The server must fill out and sign a proof of service form.

A sheriff or professional server will usually give you a proof of service form as part of their service. Ask to make sure they do this. If they don't, have the server fill out and return to you the form here, or the form the clerk gives you.

A friend or relative who serves the subpoena must fill out the Proof of Personal Service form here or one the clerk gives you. You can fill out the caption for the server. The server fills out the rest.

After you get the completed form back, make a copy for yourself. Save the original to bring to the trial (with the original subpoena) in case the witness does not show up or bring what you asked for.

Maybe. If you use the sheriff or other professional server, they will charge you for the service. Ask them how much before hiring them. 

If you ask a witness to bring documents or other evidence, the witness can ask to be reimbursed the reasonable cost of getting and copying what you asked for. 

Some witnesses can ask for a fee for going to the trial. "Expert" witnesses such as counselors, doctors, or therapists may require you to pay them at their usual hourly rate to testify. You must negotiate this with them ahead of time. 

You must pay to subpoena a witness who lives outside the county, or more than 20 miles from the trial. Depending on the judge and the situation, this could include an allowance for the witness's meals, lodging, and travel expenses.

The witness should stay until they have testified and been questioned by (cross-examined by) the other side, unless the judge orders them to stay longer. For example, you can ask the judge to order the witness to stay to respond to a later witness's testimony. 

A witness who does not come to trial or bring subpoenaed items without good excuse could face a fine and/or jail time. In this situation, you should give the judge the original subpoena form and proof of service. After the trial ends, file the original subpoenas and affidavits of service with the court clerk.