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Seven days prior to a trial I was served with a subpoena to appear at the trial as a witness. Do I have to appear?

Irvine, CA |

The subpoena was filled out to serve my former employer and myself, however, as I was no longer employed at that company, they didn't serve me until 1 week prior to the trial. The subpoena is to appear as a witness and produce documents. I have no documents. I was served on a Thursday and the trial is on the following Thursday. I wouldn't have any problems attending, however, I had a long planned 1 week vacation starting on the day after I was served and I wasn't set to return until the following Sunday, thus I can't attend. I contacted the attorney and explained I could provide a declaration or appear if he could continue the trial, but he is threatening me with damages of $100,000 for any judgment against his client plus arrest. How can I resolve this?

Attorney Answers 4


A trial subpoena just needs to be served with "reasonable" notice, so seven days before trial is probably sufficient.

If you were personally served with a trial subpoena, you have to appear at the trial. A subpoena is a court order, and you could be held in contempt of court for failure to appear. But you would not be arrested, nor would you be likely liable for damages of $100,000.

That being said, however, the common practice is to have an "on call agreement" whereby you agree to appear at trial upon 24 hours notice. This is because trials are often delayed and unpredictable, so the on call agreement tries to avoid inconveniencing the witnesses being subpoenaed.

Another alternative is to provide a videotaped deposition, which could be admissible at trial if you are unavailable.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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It sounds like the other attorney is making inappropriate and baseless threats. But you can be gel in contempt if you fail to appear. Let the attorney know that you would like to reschedule if at all possible.

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Addition to the advice given below, I would notify the court that you are unavailable and unable to respond to the subpoena as noticed. You may need to do this via an ex parte application and appearance. The first step, however, would be to contact the clerk of the court and find out when the court hears ex parte applications. During that same telephone call, I would also Mention to the clerk that you are unavailable to appear for trial pursuant to the subpoena you received. You really need to submit an application, but perhaps the clerk will be sympathetic enough to pass your message on to the judge. In my experience, courts are very deferential towards witnesses and jurors.

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I am sorry to hear the other attorney is threatening you in the manner he/she did. That is unprofessional in my opinion and you should not have been treated in such a manner. You should call the court (or physically go down to the department if you can) and explain your situation. You should also do this in writing. Hopefully the court will agree to accommodate your vacation schedule and let you come in and testify on a day that does not conflict with it. I wish you the best of luck.

The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyze this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also terms and conditions item 9, incorporated as if it was reprinted here.

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