Wondering what is the process of serving a subpoena?
You intend to serve a subpoena and wanted to learn more about how it works.
What happens if a subpoena is not served or does a subpoena have to be served in person
In this article, we will go over all you need to know about serving a subpoena.
Let’s get started!
Table of Contents
What does it mean serving a subpoena
Serving a subpoena is the process of delivering a subpoena to an intended recipient you wish to order to come to court to testify or provide documents.
Another way of saying “serve” a subpoena is to say “notify” a subpoena or “deliver” a subpoena.
If you want a subpoena to produce legal effects against someone, you must absolutely have it served to the witness in question.
Once you have proof that your subpoena has been served, then you can expect for the witness to show up to testify or produce documents as it was requested.
How to serve a subpoena
There are many ways you can serve a subpoena.
Service in person by process server
In most cases, the subpoena will be served by a process server.
Unless you are not able to for serious reasons, you want to serve a subpoena in person or hand-delivered.
A process server is a professional authorized to deliver legal documents to people and produce a report, or proof of service, of the delivery.
The process server’s report with respect to the actual service is very difficult to contest in court.
The law provides a lot of authority to the process server’s report to facilitate the service of legal documents and prevent endless disputes about the service of documents.
Service in person
A subpoena can also be served in person by someone other than the process server or the party to the lawsuit.
Anyone can serve a subpoena in person as long as they are over 18 and not involved in the legal proceedings themselves.
When someone like a friend or family member is asked to serve a subpoena, the challenge is to ensure the person follows all the proper steps to serve and gather the proof necessary to demonstrate that someone was served in person.
If the person is unable to make sure all steps are done properly, your subpoena will be exposed to a challenge on its validity.
The service through a friend or a family member can be done, provided that they make sure they know what is required of them to do and do it correctly.
Service by email
In some jurisdictions, the courts will accept the service of a subpoena by email.
However, serving a subpoena by email is not ideal and has a lot of potential in being challenged.
Email service is not the preferred method of service of a subpoena but if you have no other means to reach someone, then you may be able to serve a person by email.
You’ll need to make sure you follow the court rules applicable to the service by email.
For instance, you must be able to demonstrate that the email address you intend to serve the subpoena really belongs to the person you are targeting.
You may need to get an authorization from the court before serving the email or you must get an acknowledgment of receipt when the email is sent.
Make sure you follow the guidelines applicable to your local court.
Service by certified mail
The same principles that apply to the service of a subpoena by email will apply to the service of a subpoena by certified mail.
If you are unable to serve a witness in person, then you can consider the possibility of serving them at their last known address.
It’s a risky way of serving a subpoena but in some cases it may be worth trying.
Make sure you follow your local court’s rules of procedure to properly follow the guidelines applicable to a service of a subpoena by certified mail.
You may need to get the court’s prior authorization before you serve your subpoena.
If you serve a subpoena to a person by certified mail, overnight courier or through a lawyer, you will have a much higher chance of getting challenged.
If you are going to go to serve your subpoena in a way other than in-person or hand-delivered, make sure you have a clear basis to avoid any unnecessary headaches.
Who can serve a subpoena
In many jurisdictions, a subpoena can be served by anyone over the age of 18 and who is not implicated in the legal proceedings themselves.
In most cases though, subpoenas will be served via a process server or bailiff.
If you are looking to serve a third-party unrelated to the lawsuit, it may be better to proceed with a professional subpoena service providers like process servers.
Typically, you cannot serve a subpoena yourself to the other party involved in your own case.
Providing a witness fee or indemnity
For a subpoena to be fully enforceable, you must provide the witness a fee or indemnity required by law to compensate the witness for transportation and the attendance in court.
Every jurisdiction has its own rules on the amount to pay a witness in advance for their testimony.
Depending on how long you are requiring a witness to testify, the witness fee payable will differ.
Make sure you look up how much the law requires you to pay a witness fee to ensure your subpoena remains fully enforceable against the witness.
Proof of service of a subpoena
The proof of service of a subpoena is the evidence demonstrating that a specific person received a specific subpoena at a certain date, a certain time and a certain place.
Your proof of service must be extremely clear as to who received what and when.
The proof of service will be either an affidavit of service where a person swears having served the subpoena or a declaration.
When you serve your subpoena through a process server, they will provide you with a report confirming the details of the service and give all the legally required information about the proof of service.
What happens if a subpoena is not served
If a subpoena is not served, then it will not produce legal effects against the witness you served.
For example, if you have a court hearing next month and you serve an invalid subpoena, if the witness does not show up at the hearing to testify, you cannot argue that the witness is in contempt of court.
Your subpoena must be validly served for the recipient to be legally mandated to testify or produce documents.
Make sure you follow the rules applicable in your jurisdiction so you can validly serve a subpoena.
If you have a critical hearing and someone really needs to show up to testify, you may be better off having a professional handle your service such as a process server or lawyer.
Does a subpoena have to be served in person
Yes, for a subpoena to be valid and enforceable, it must be served in person.
Some service methods will be extremely difficult to challenge and others can be riskier.
If you want the service of your subpoena to be as legally robust as possible, you should serve it through a process server.
If you don’t serve through a service professional, you can have someone who is not implicated in your case to serve a subpoena but that will be risky in case they miss a step or forget to accomplish all the formalities.
For example, if you are serving a subpoena in person through a friend, they must find the right person to serve, provide them with the witness fee, keep track of time, place and date of service, issue an affidavit as proof of service and so on.
Your local jurisdiction will define the rules on how service must be done and what constitutes a valid proof of service.
So make sure you serve your subpoena and make sure you do it right!
In exceptional cases, a subpoena can be served by email, registered mail, certified mail or overnight courier, but you’ll need to use these service methods in case you have no choice as the courts may not easily give full legal effect to the subpoena.
Serving a subpoena to a corporation
Serving a subpoena to a corporate should follow the requirements of the law.
Generally, a subpoena directed to a corporation must be served on a corporation’s officer, director or registered agent.
A subpoena can also be served on another person authorized to act for the corporation.
A subpoena can be served at a company’s place of business or business establishment and given to the person who appears to be in control of the place or is part of the management.
The service of a subpoena to a corporation happens very often, the biggest challenge will be to determine who in the company is the right person to testify.
Subpoenas are served in civil litigation and lawsuits to obtain evidence from individuals and companies who are not directly involved in a lawsuit.
Serving a subpoena is crucial for it to be legally enforceable against the witness.
The real question is not whether or not a subpoena must be served but how it must be served.
There are many ways you can serve a subpoena.
You’ll need to make sure you follow the rules governing the service of a subpoena in your jurisdiction to ensure you are doing it the right way.
Once served with a subpoena, the person or entity in question must comply with its terms under the pains and penalties of the law.
If you have doubts about how to handle the subpoena service, you are better off giving it to a process server.
We hope that this article helped you better understand the process of serving a subpoena.
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