Asked to testify (NOT subpoenaed) -- what if I don't show up?

Asked over 4 years ago - Mountain View, CA

I have been asked to impeach a plaintiff in a civil matter, on behalf of the defendent. The attorney has not yet told me what time I need to be in court, and asked that I hold the entire day open -- at a loss of $800 (I am a therapist). He was to contact me no later than this afternoon to give me the time for tomorrow. He had his client call at 6 pm, instructing me to contact the lawyer, which I have done, leaving voicemail

It's 7 pm and no word. What happens if I just don't show?

If I'm not testifying as an expert witness, can I recoup any financial loss from the defendent?

Could I have insisted on a deposition instead (I have already written a letter of fact)?

Attorney answers (3)

  1. Pamela Koslyn

    Contributor Level 20

    Answered . If you weren't subpoenaed, then there's no court order requiring you to show up, although it sounds like you did agree to appear. When lawyers are in trial, it's often hard to return phone calls since they're at the mercy of the court's schedule and are doing dozens of things at once. If you don't show up tomorrow, you can expect the lawyer to subpoena you for Wednesday.

    A witness is entitled to $35 plus .20/mile for mileage.

    Even if you had been deposed, unless you were "unavailable," which means dead or gravely ill, you'd still have to testify in court. You should show up because it's the right thing to do, it's your civic duty, and you'd want a witness to do it for you if it were your lawsuit, even if it meant losing some income.

    Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

  2. Edward Court McDonald Jr

    Contributor Level 6

    Answered . Without a subpoena to appear to testify at trial, you are not required to attend. Balancing a trial schedule and the order of witness testimony is difficult at times. I suspect that the attorney will contact you with a more discreet time frame for your testimony, if still needed. Since your testimony is to impeach a plaintiff, your testimony actually may not be necessary, depending on how the trial unfolds.

    You are entitled to a witness fee of $35.00, plus travel expenses. You are not entitled to compensation for loss of business or wages.

    A deposition alone would not have prevented your subpoena to testify at trial.

  3. Edward Court McDonald Jr

    Contributor Level 6

    Answered . Without a subpoena to appear to testify at trial, you are not required to attend. Balancing a trial schedule and the order of witness testimony is difficult at times. I suspect that the attorney will contact you with a more discreet time frame for your testimony, if still needed. Since your testimony is to impeach a plaintiff, your testimony actually may not be necessary, depending on how the trial unfolds.

    You are entitled to a witness fee of $35.00, plus travel expenses. You are not entitled to compensation for loss of business or wages.

    A deposition alone would not have prevented your subpoena to testify at trial.

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