Subpoenas

Subpoenas as Most People See Them
We see it on shows like Law & Order or (my newly discovered TV obsession) Franklin & Bash at least once every couple of episodes:

Attorney: "Mr. John Doe?"
John Doe:  "Yes?"
Attorney: "You're hearby ordered to appear in court (blah blah, hands over some folded papers)."

This is a classic, albeit dramatized, example of someone being served a subpoena.  A subpoena, generally speaking, is a notice that someone receives when they have been ordered to appear in court.  I feel that these TV shows' tendency to dramatize the legal process has assigned a negative stigma to a subpoena, and has contributed to many people feeling "intimidated" if being served one.

Further, these TV programs, particularly Law & Order, show the use of a subpoena in criminal matters, and the individual being served's testimony is crucial to the prosecution's case.  Today, I am going to discuss the use of a subpoena in civil matters, and why it should not be viewed with such negative attitudes.

Two Main Types of Subpoenas
In civil matters, subpoenas are commonly issued for two reasons:

1.  To compel a person or (more often) a business to produce documents necessary to disprove a claim being made by the opposing party.  This is called a subpoena duces tecum, and is a subpoena for production of evidence.  Generally, these types of subpoenas ask for a person to come to a law office on or before a specific date and time, with the documents requested.  These subpoenas often provide the option for the documents to be faxed or mailed, in lieu of appearance.

2.  This is different from a subpoena ad testificandum, which is the type of subpoena most commonly used on television, which requires the person served to testify orally in a court of law.  Generally speaking, these types of subpoenas are not likely to provide the option for a sworn statement.  After all, you can't cross-examine a piece of paper.   

Use of a Subpoena in Family Law Matters
In family law, before a subpoena is even issued, both parties are asked to fill out financial disclosure forms in order to initially calculate how much money a party should pay in spousal support and/or child support.  Basically, this is a chance for both parties to honestly and voluntarily disclose their finances in order for the court to accurately be able to issue a fair order for a party to pay support.  Naturally, people think they are more cunning than they actually are, and thus "forget" to disclose accounts held in their own name (most likely at a different bank than any of those with whom a joint account account is held with their spouse) that their spouse does not know about.  If we suspect this is the case, then this is the part in which subpoenas come out of our metaphorical playbook.

Subpoenas are most commonly issued to banks for production of financial statements.  As mentioned above, an accurate financial portrait needs to be painted for both parties in order to ensure that the fair amount of support is paid to the party that needs it.  Quite naturally, people want to pay the least amount of money possible, particularly to someone they are divorcing, and thus try and show that they have fewer assets and money available than is actually true. 

One thing I have learned from working in a family law firmis this:  Be honest, especially about finances.  ATTORNEYS WILL FIND EVERYTHING (eventually).  It's quite frankly gratifying when you suspect the opposing party of hiding finances, and receiving responses from subpoenas showing that they have a Wells Fargo checking account, or even a vacation home in Hawai'i (yes, people try and 'hide' houses and other property too) that our client never knew about, but most importantly, was not mentioned on the financial disclosure form. 

Final Thoughts (for now)
Subpoenas are very useful tools in finding documents which we may not have known existed otherwise, and I would even go so far as to say that they may help keep parties honest in civil proceedings, and even help preserve the fairness in the legal process.  If you work for a business and receive a subpoena to produce documents, don't look at it as a threat (you may still believe it to be an inconvenience and that's okay), but keep in mind that you are helping someone in need receive a fair judgment in court. 

Now that the positive aspects of this critical element in law has been touched upon, in the interest of fairness we will discuss some of the downfalls in a future post.  Please feel free to leave any questions or comments below!