Subpoenas for Witnesses

Family Law Subpoenas for Witnesses

(if you are looking for information on subpoenas for records, this is not it)

Below is a checklist to help you work through the subpoena process. A big thing to take note of right away in any case where we are subpoenaing witnesses, is that expert witnesses are VERY EXPENSIVE. It is not uncommon for their testimony fee to be $2000+. This is especially true with mental health experts (like a client’s therapist) or medical providers (like doctors). We must ensure that the client is aware of the cost to subpoena a witness, agrees to that cost, and pays that money into trust before we actually move forward with issuing the subpoena. We do not want to get stuck paying for witness fees. It’s common for clients to want a ton of expert witnesses, until they hear what the cost is, at which point they realize they can’t afford it and change their mind. If the client cannot afford to pay it, then we won’t call that expert.

Secondly, the sooner you can get subpoenas to witnesses the better, especially with experts. We don’t want the case to be delayed because an expert isn’t available or, worse, an expert isn’t available and the court won’t reschedule so then we can’t have that expert testify.

Third, certain mental health providers (therapist, psychologists, etc) have their clients sign a document when they first start working with them which indicates they cannot subpoena them for Court. Be aware of this as a possibility.

☐ Fill out subpoena in a civil case court (MyCase Template FAM – Subpoena)

If Subpoena is for an expert witness:

☐ Contact the expert to get information on their fee to testify. Just tell them we are planning on calling them as a witness and are working on the subpoena and want to verify their rate for testimony.

☐ If necessary, call the organization to see who to make the check out to.

If Subpoena is for a non-expert witness:

☐ See Fee information at the bottom of the article for details on what amount we have to pay them to testify

☐ Draft letter to person receiving subpoena

☐ Email process server and tell them we need docs personally served, but would need her to come to the office to pick them up because they include a check. Would they be able to do that in the next day or so?

☐ Email Finance, let them know you need a check for a testimony fee in the (CASE NAME) matter.  Tell finance who they should make it out to, the address, and the amount

☐ Add the expense to the client file in mycase

☐ Provide letter, subpoena, and check to process server and scan/save the same to the client file.

☐ Once the process server sends back the “Return of Service” and their invoice for service, save both to the client file.

☐ Enter process server expense in MyCase and send invoice to finance.

 

Fees to be paid to witnesses shall be as follows (Minn. Stat. § 357.22):

• For attending in any action or proceeding in any court of record or before any officer, person or board authorized the take examination of witnesses, $20 for each day.
• For roundtrip travel estimated from the witness’s residence at 28 cents per mile. If a witness lives outside the state, travel costs shall be estimated from the boundary line of the state where the witness crossed into Minnesota at 28 cents per mile. (Additional fees may be available for out of state witnesses).

 

In any proceeding where a parent or guardian attends the proceeding with a minor witness and the parent or guardian is not a witness, one parent or guardian shall be compensated in those cases where witness compensation is mandatory under Minn. State. § 357.22, and may be compensated when compensation is discretionary under those sections. No more than a combined total of $60 may be awarded to the parent or guardian and minor witness. Minn. Stat. § 357.242.

 

General Rules regarding Subpoenas (Rule 45, Minnesota Rules of Civil Procedure)

• A subpoena may be served by any person who is not a party and is not less than 18 years of age.
• Service of a subpoena shall be made by delivering a copy to the person named in the subpoena or by leaving a copy at the person’s usual place of abode with some person of suitable age and discretion who resides there.
• A witness who is not a party to the action or an employee of a party (except a person appointed pursuant to Rule 30.02(f)) and who is required to give testimony or produce documents relating to a profession, business, or trade, or relating to knowledge, information, or facts obtained as a result of activities in such profession, business, or trade, is entitled to reasonable compensation for the time and expense involved in preparing for and giving such testimony or producing such documents and is entitled to have the amount of those expenses determined prior to complying with the subpoena.
• A person is not obligated to attend as a witness in a civil case unless one day’s attendance and travel fees are paid or tendered in advance (see fees below), unless the subpoena is issued on behalf of the state of Minnesota, or the state’s officer or agent.