What's a Subpoena, and Why Have I Been Served?

Use these links to jump to different sections:

• The Three Kinds of Subpoenas
• What Kinds of Cases Are Subpoenas Used In?
• How is the Subpoena Delivered to Me?
• The Subpoena Process: Your Rights and Responsibilities If You’ve Been Served
• Must I Answer Questions in a Deposition?
• Consider Contacting an Attorney if You’ve Been Served with a Subpoena

As the old adage goes: The pen is mightier than the sword. This is especially true in legal proceedings, where the subpoena is one of the most powerful tools a lawyer has at their disposal.

With a subpoena, any bar-certified lawyer in the nation can, with a stroke of their pen, force private citizens to hand over documentation or truthfully answer any question related to a civil or criminal case.

These court orders can overturn your life and cost you hours of work and effort to prepare for them. This article will help you know what to expect if

The Three Kinds of Subpoenas

A subpoena is a court-ordered request for information. Attorneys use subpoenas to gather evidence that will help their client in a civil or criminal case or that will damage the other side’s case. Sometimes, evidence obtained through a subpoena can be a turning point in a legal proceeding.

Subpoenas are court-ordered, but that doesn’t mean judges are the only people authorized to issue them. Many subpoenas are issued by attorneys on behalf of the court in the jurisdiction where they practice. After all, it’s attorneys representing clients who want the information.

There are three types of subpoenas, distinguished by the kind of information they request:

1. A “subpoena duces tecum” asks you to hand over documents or other evidence relevant to a legal proceeding
2. A deposition subpoena asks you to give in-person sworn testimony rather than providing documents
3. A “subpoena ad testificandum” (also called a witness subpoena) summons you to appear and testify in court

Latin for “under penalty,” subpoenas bring criminal consequences if you don’t comply with them, including jail time or fines and an entry on your criminal record.

What Kinds of Cases Are Subpoenas Used In?

Subpoenas can be used in almost any area of the law.

For example, in civil cases such as divorce, custody and visitation, or support hearings, they are often used to elicit testimony or gather bank records from the parties.

In a criminal case, you may be asked to speak as a witness. Many people who are served with a subpoena are often not the focus of an investigation or lawsuit. If you’re not the defendant in a court case, there is often no real concern going into a deposition or court proceeding.

If you’re not in trouble, there’s no need to worry unnecessarily about answering an attorney’s questions.

How is the Subpoena Delivered to Me?

Once an attorney has requested a subpoena from the local court clerk and issued it, the subpoena can be delivered or “served” to the individual.

Rules on how to serve a subpoena vary by state (if you’re the one serving a subpoena, you need to check your jurisdiction’s forms and requirements). Generally, though, you can expect to receive a subpoena by one of the following methods:

• In-person service of a subpoena, where it is hand-delivered by a process server
• Service through certified mail to the last known address of the person
• Service through email to the last known email address of the person

The Subpoena Process: Your Rights and Responsibilities If You’ve Been Served

If you are served with a subpoena, you must comply with it—even if you have to miss work—or risk contempt of court.

You must show up where and when you are supposed to in order to comply with the legal document. If, however, you contact the attorney who has sent you the subpoena, you can often you work out an alternate day or time that works for both of you. Courtesy goes a long way in the legal world.

Documents that are requested in the subpoena must be procured and handed over in some form, usually as hard copies on paper or as electronic copies. Electronic copies often suffice.

It may take significant time to procure the requested documents, and often, an attorney hoping for your compliance will be willing to compensate you for your time if you ask for a reasonable hourly rate.

If an attorney is asking for the production of documents that are confidential or privileged, such as certain business records, you can refuse and request a hearing with the court to protect sensitive information.

Anything relevant to the case must be produced, however, so prevention of document production is a tough and often expensive road that leads to little protection. A court may further place protective orders on sensitive documents that prevent them from being publicly shared.

Must I Answer Questions in a Deposition? 

Depositions and in-court testifying can be incredibly stressful, but they don’t have to be.

Only answer the questions that are asked, and instead of focusing on answers, focus on listening to what is asked of you. When answering, do not elaborate, even when asked to do so; give as short of an answer as possible.

The attorneys will get the information they need upon asking the right questions, so don’t help them. Doing so will only hurt you.

Consider Contacting an Attorney if You’ve Been Served with a Subpoena

If you are served with a subpoena, your first step should be to contact a reputable attorney for legal advice and to ensure you are protected and prepared for anything an opposing attorney may throw at you.

An experienced attorney will be able to advise you on your exposure to legal liabilities and prepare you for depositions and court dates.

For more information on this area of law, see our overview of criminal defense.