Served with a Subpoena? What to Do.
- What do I do if a lawyer calls and wants to find out information concerning a student?
- What if the lawyer wants me to be a witness in a court action?
- What is a subpoena?
- Who can be served with a subpoena?
- What is the first thing to do if I am served with a subpoena?
- What if the subpoena requires documents to be produced?
- Should I speak with the lawyer who issued the subpoena?
- What if the lawyer for the other side wants to talk to me?
- When do I go to court?
- What happens at court?
- Will I be paid for my expenses?
- What happens if I just ignore a subpoena?
1. What do I do if a lawyer calls and wants to find out information concerning a student?
- If a teacher or other employee of the board of education (board) is contacted directly by a lawyer the request should immediately be passed on to the principal. The principal can then assess whether or not the school can comply with the request and can obtain any consents that might be required.
2. What if the lawyer wants me to be a witness in a court action?
- If a lawyer believes someone has information that might be relevant in a case the lawyer should be asked to issue a subpoena.
3. What is a subpoena?
- A subpoena is a document issued by the Court at the request of one of the parties involved in a lawsuit or court action. The subpoena is a command of the court requiring the person named to attend in court and give testimony.There are commonly two kinds of subpoenas:
- a subpoena ad testificandum is the ordinary subpoena requiring someone to appear and give verbal testimony.
- a subpoena duces tecum is a command for a witness to appear and bring to court all documents the witness has in his or her possession that might relate to the case.
The subpoena document will clearly state if the witness is required to bring documents. It might not specify the exact documents to be included.
4. Who can be served with a subpoena?
- Anyone who has information that might be relevant to a case can be subpoenaed to appear at trial as a witness. In the case of school personnel, subpoenas usually involve child custody or young offender matters. The most common documents that are required to be brought to court are student records.
5. What is the first thing to do if I am served with a subpoena?
- You should advise your principal as soon as possible. Board policy may also require the principal to notify the Director of Education.
6. What if the subpoena requires documents to be produced?
- If the subpoena calls for documents it must be determined whether or not the witness has appropriate access to the record for court purposes. For example, school records are not “in the possession” of teachers. They belong to, and are in possession of the board. Board policy will determine who the appropriate person is to represent the board if the records are required.
7. Should I speak with the lawyer who issued the subpoena?
- Even if there has been no contact with the lawyer it is a good idea to call the lawyer once the subpoena is served. You should ask the lawyer about the kind of information that you will be asked to give evidence about. Lawyers will generally be very willing to do this.
8. What if the lawyer for the other side wants to talk to me?
- In law, either side can speak to a witness. The same procedure should be followed as for the request from the first lawyer. Notify the principal who can determine whether information should be shared and what consents will need to be obtained.
9. When do I go to court?
- The subpoena will state the date and time the witness is required to appear in court. However, court cases vary greatly in length. The subpoena will give only the time the case will begin. You may not be required to testify until some later time. It is, therefore, important to try and speak with the lawyer who issued the subpoena. The lawyer might be able to give a more specific time for you to appear.
10. What happens at court?
- At the court house, the location of the room where the trial is being held will be posted. When you arrive, you should let the lawyer know you are there. You will then be asked to sit outside the courtroom until you are called to testify. Once you have testified you will be able to stay in the court room (unless it is a closed court).
11. Will I be paid for my expenses?
- At the same time the subpoena is served the person serving the subpoena is required to pay the witness costs. These costs are set by the court and include mileage expenses and a per diem. Most board policies allow time-off for these types of court appearances. The policy may require you to pay the board the per diem you receive if you receive a paid leave from work.
12. What happens if I just ignore a subpoena?
- Subpoenas are commands of the court and you could be subject to penalties and arrest if you do not respond.
The information provided in this document should not be regarded as legal advice. If you have questions about a specific fact situation please contact your legal counsel.