What to Expect if Called as a Witness
Any party to a lawsuit or a criminal proceeding has the authority to subpoena witnesses. The power to subpoena witnesses is a basic constitutional right, since witnesses are the primary form by which evidence is presented. If parties could not present witnesses, then they could not present evidence in support of their case. The way a witness is compelled to appear in court is by means of a subpoena. The word subpoena literally means under penalty.
A subpoena is a court directive telling a person to appear at a particular place and time for the purposes of giving testimony.
A subpoena is a court directive telling a person to appear at a particular place and time for the purposes of giving testimony. A subpoena may be for you to appear at a trial or at a deposition. (A deposition is a means of discovery conducted in most civil litigation, wherein the attorneys have the opportunity to ask witnesses what they know about a particular event relevant to that lawsuit.)
If you should be served with a subpoena, the subpoena will typically indicate the name, address, and phone number of the attorney that requested you to appear. You should feel free to call that attorney and find out why you have been subpoenaed. If the date and time of the subpoena is not convenient for you, then you should inquire as to whether that date and time can be changed. If the attorney tells you that the date and time cannot be changed and you simply are not able to appear, then you need to bring that to the attention of the court immediately so the issue can be resolved by the court.
If you are subpoenaed to appear for trial or for a deposition, the local rules of the court may require that the attorney pay you a fee for your traveling expenses and for time that you lose from work. That is something that is governed by law and something that you should inquire into.
Sometimes witnesses ask whether they can ask questions during the course of the proceeding. Typically the answer to that question is “no.” You have been subpoenaed to give information and not to make inquiries on your own. That does not mean that during the course of a proceeding you may not stop and ask a question. If a bona fide question occurs to you, you should ask it. You may be told that your question cannot be answered or you may be provided with an appropriate answer.
The purpose of your appearing to testify is to respond to particular questions that are asked of you by the attorneys, the parties, or the court. Once that questioning has been completed, you will be excused and allowed to proceed about your normal routine. In some instances, after you have finished testifying, the judge may tell you that you have to remain in the courthouse because you may be called again as a witness. If that presents a problem for you as far as your own scheduling, you need to bring that to the attention of the court immediately so that the issue can be dealt with. Most judges and attorneys are willing to work with witnesses in order to accommodate their schedules. The burden, however, is upon the witness to bring those issues to the attention of the court or the attorneys.
