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Tuesday, February 26, 2008

Subpoenas in a Court Case

Kenneth Vercammen's law office represents individuals and companies in both Civil and Criminal cases. Often there is a need to require witnesses to testify at trial. To require someone to appear at trial, arbitration, or hearing, they need to be served with a subpoena. A subpoena needs to be personally served if it is to be considered valid. Sometimes we need documents or records at trial or prior to trial. A subpoena can also be used to require a company or person to produce records.
There are two types of subpoena: 1. Subpoena for Records - Also called "Subpoena Duces Tecum" 2. Subpoena to Testify - called "Subpoena Ad Testificandum"

For records-

Our letter to person or entities we want records from will state the following: Please find Subpoena Duces Tecum and the requisite fee in the amount of $6.00 served upon you pursuant to Rule 1:9-2. A personal appearance by the custodian of records is not necessary, provided that we receive the requested documents and a Certification to indicate the records are true and accurate.

We will not schedule a court reporter on the date listed on the subpoena unless the custodian of records contacts us and requests a personal appearance. Failure to comply with the subpoena may be deemed a Contempt of Court, pursuant to Rule 1:9-5. Information to include in Subpoena for Records The Subpoena for Records - Requires: caption Attorney for ______ (our client) Type in name of Plaintiff Type in name of Defendant Type in rest of caption, make sure correct court is indicated, e.g. Law Div., Municipal Court, etc. Type in docket # Action: Civil or Criminal or Traffic State of New Jersey to _____ (type in person/company or entity subpoena for records is served on) Indicate either address of court or location to deliver records, (e.g. 2053 Woodbridge Ave., Edison, NJ 08817) Date records are to be produced Records to be provided ____ (type in all documents we want) Dated - hand write date Sign Donald Phelan If this is a Municipal Court case, delete Donald Phelan and type name of Municipal Court administrator. In personal injury case, include a signed medical authorization of the plaintiff/patient We prepare a letter to company/entity we want records from. We insert client name and date of deposition or appearance. Type in other attorney name. Other attorney gets letter and copy of subpoena. If records are not received, or we do not believe entity receiving subpoena will comply, prepare a new subpoena and have person/entity served by Guaranteed Subpoena.

Subpoena To testify-

To require a witness to testify, a Subpoena Ad Testificandum [To testify] is required. The Subpoena must be personally served, together with a check for $6.00. The attorney's office will prepare the subpoena. It is served by a Process server, usually Guaranteed Subpoena, for a fee of approximately $60.00. The client is responsible for the process server fee. In Municipal Court traffic/ DWI and Municipal Court criminal cases, the witness should be present on that date set forth by the court. An affidavit or signed letter is not admissible because it is hearsay. Live testimony is required. Superior Court trials are sometimes adjourned by the court or testimony is not taken until the next day. Rather than inconvenience witnesses and require them to sit in court several days and wait, we sometimes permit a witness to be "on- call". This means that the witness agreed to provide a daytime phone number where they can be reached and agreed to appear on 24 hours notice. If the witness does not agree to be "on- call", then they must appear at the Courthouse at the date and time issued on the subpoena, sit around at the courthouse until trial itself begins and return to the Court every day until the trial is started and your testimony required. We wish to avoid inconvenience to the witnesses and often it is granted permission to be "on- call." Under the subpoena a witness is required to appear in court and testify. Failure to appear subjects a witness to numerous penalties.

Our letter to witnesses states: "We would appreciate witnesses being "on call" to testify in our behalf when the case is reached. Please advise us as to the daytime telephone number where you can be contacted. If, for any reason, you will not be available, you must call my office upon receipt of this letter." Pursuant to New Jersey Court Rules, a plaintiff or defendant is permitted to reimburse a witness for their hourly rate and lost time in Court. However, we have been advised that we cannot pay witnesses a daily rate for "on-call."

We can also provide to witnesses a copy of a map to the Court House.

Subpoena to testify- Information needed to include Prepare caption State of New Jersey to ____ (name of person) Court address date of Court Hand write date of subpoena Hand sign Donald Phelan Prepare PI Lt. G3- Trial Subpoena letter Insert date of trial and location of court.


1:9-1. For Attendance of Witnesses at a Hearing/Trial; Forms; Issuance; Notice in Lieu of Subpoena

A subpoena may be issued by the clerk of the court or by an attorney or party in the name of the clerk or as provided by R. R. 7:7-8 (subpoenas in certain cases in the municipal court). It shall state the name of the court and the title of the action and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. If the witness is to testify in a criminal action for the State or an indigent defendant, the subpoena shall so note, and shall contain an order to appear without the prepayment of any witness fee. The testimony of a party who could be subpoenaed may be compelled by a notice in lieu of subpoena served upon the party's attorney demanding that the attorney produce the client at trial. If the party is a corporation or other organization, the testimony of any person deposable on its behalf, under R. 4:14-2, may be compelled by like notice. The notice shall be served in accordance with R. 1:5-2 at least 5 days before trial. The sanctions of R. 1:2-4 shall apply to a failure to respond to a notice in lieu of a subpoena.

Subpoena for Records:

Rule 1:9-2. For Production of Documentary Evidence; Notice in Lieu of Subpoena

A subpoena or, in a civil action, a notice in lieu of subpoena as authorized by R. 1:9-1 may require production of books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena or notice if compliance would be unreasonable or oppressive and, in a civil action, may condition denial of the motion upon the advancement by the person in whose behalf the subpoena or notice is issued of the reasonable cost of producing the objects subpoenaed. The court may direct that the objects designated in the subpoena or notice be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit them or portions of them to be inspected by the parties and their attorneys and, in matrimonial actions and juvenile proceedings, by a probation officer or other person designated by the court. Except for pretrial production directed by the court pursuant to this rule, subpoenas for pretrial production shall comply with the requirements of R. 4:14-7(c).

Rule 1:9-3. Service

A subpoena may be served by any person 18 or more years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named together with tender of the fee allowed by law, except that if the person is a witness in a criminal action for the State or an indigent defendant, the fee shall be paid before leaving the court at the conclusion of the trial by the sheriff or, in the municipal court, by the clerk thereof.

Rule 1:9-4. Place of Service

A subpoena requiring the attendance of a witness at a hearing in any court may be served at any place within the State of New Jersey.

Rule 1:9-5. Failure to Appear

Failure without adequate excuse to obey a subpoena served upon any person may be deemed a contempt of the court from which the subpoena issued.


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Assistant Editor: Ernest Fantini