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Witness list in divorce trial. What if my witness doesn't show up?

La Jolla, CA |

I'm preparing my witness list for my divorce trial. I'm planning to list four witnesses to provide various testimony on my behalf. Will I be penalized if one or more of my witnesses doesn't show up? If I bring a witness and decide not to have her testify can the opposing attorney call that person to the stand and ask her questions? Thanks so much.

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Attorney answers 4


You need to have subpoenaed witnesses if you want the court to compel them to appear for trial. Just listing them on your witness list is insufficient.

You can decide not to call a witness on your list, However, if that witness is present in the courtroom, the other side can call that person as a witness, even without a subpoena.


I agree with my colleague, make sure you also send out subpoenas. If the witness does not show up, you can get the court to issue an arrest warrant. You should also ask for a continuance. Meanwhile, you should get the testimony from the witnesses that are in court so that you can get part of the trial out of the way. The court clerk should be able to help you with the subpoena. There is probably a form that the court uses. You should also check the local rules on how the subpoena should be served and see if there is a travel allowance or other fee associated with the subpoena.


A list provides notice to the Court but to provide notice to the witness AND give you legal power to compel their attendance, you have to serve them with a subpoena. You can change your mind later whether you want to call them but if you decide not to call them, tell them ASAP to save the trip to the Court and the chance they are available to be called by opposing counsel.

If you liked this answer, click on the thumbs up or vote it best answer! Thanks. Eliz. C. A. Johnson Post Office Box 8 Danville, California 94526-0008 Legal disclaimer: I do not practice law in any state but California. As such, any responses to posted inquiries, such as the one above, are limited to a general understanding of law in California and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.


Have a lawful subpena issued and served. Then if the witness fails to show you have some recourse, perhaps suggesting the trial be delayed until you can secure the appearance of the witness. The judge may balk at this remedy if you can not demonstrate how important and essential the testimony is to your cause. The appearance of a witness who has been properly served and fails to appear may be secured ultimately through pretty forceful means.

The only 'penalty' to you for the failure of a witness to show up [unless properly served with a subpena] is the case goes on without the testimony.

Any party can call a witness who has been listed and who is then available to testify.

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