Subpoenas, summonses and service. Oh my!
These are words with which we are likely all familiar, words that are kicked about as carelessly as pebbles. But, what, exactly do they mean? What is their legal significance?
Let’s start, first, with subpoenas, a word that, in light of the parallel universes of the various investigations swirling about the Trump administration, has gotten more and more ink in recent press.
A subpoena (pronounced “suh-pee-nuh“) is a written order to compel an individual to give testimony on a particular subject, often before a court, but sometimes in other proceedings (such as a Congressional inquiry). A subpoena may also consist of a request for the production of documents (or certain other tangible things), known as a “subpoena duces tecum” (pronounced “doo-seez tee-kum”; deriving from the Latin, “you shall bring it with you”). Technically, the other kind of subpoena — the kind to offer up testimony — is referred to as a subpoena ad testificandum (pronounced “ad test-te-fi-kan-dum“), or one to offer testimony.
The word “subpoena” itself means, literally, “under penalty” which suggests what ills may befall you if you ignore one. One who fails to comply with the terms of a subpoena may quickly find him or herself subject to civil or criminal penalties ranging from fines, jail time or both.
Well, alright then.
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But what are subpoenas used for?
Under both state and federal laws, subpoenas offer attorneys a chance to obtain information to help prove or disprove their client’s case. Subpoenas may be deployed in both civil and criminal cases (“civil” cases being those regarding disputes between private parties and “criminal” cases being those involving alleged offenses and where the State is prosecuting the public wrong).
As but a few examples, a “deposition subpoena” may be issued to summon a person to give a sworn statement at a time and place other than at trial. It may also require the party to provide copies of business records, documents or other tangible things.
In most instances, a subpoena is issued and signed by an attorney.
Most times, a subpoena is typically requested by an attorney and issued by a court clerk, a notary public, or a justice of the peace. Once a subpoena is issued, it may be served one of several ways.
How is a subpoena served?
Well, besides the obvious — that a subpoena is a dish best served cold — that leads us to understand “service.”
Tennis anyone?
Ah, no. “Service” in this context has not a whit to do with a wicked overhead delivered from the baseline. Instead, “service” is in the legal “court.” “Service” is how legal papers are delivered. In particular, “service of process” is the procedure by which a party to a lawsuit gives appropriate notice of initial legal action to another party in an effort to exercise jurisdiction over that person so as to enable the person to respond to the proceeding before the court. “Jurisdiction,” in turn, means the court exercising its authority over the served person in order to adjudicate the case.
When one is “served,” one is given formal notice of the particular legal matter.
There are various ways to “serve.” There’s hand-delivery (also known as “personal service”); delivery by certified mail and, increasingly, electronic service, each of which may be used in different circumstances and each of which is subject to the peculiarities of the specific state and court.
Generally, subpoenas are personally served but, if the subpoenaed party is represented by an attorney, other (often electronic) methods may be employed.
What about summonses?
How is a summons different from a subpoena?
Well, the two of them are similar. Both give notice about a court proceeding. Differences between them include: who they are given to, when they are given, and what they are used for.
A “summons” (likely from the Latin, summonēre, “to remind secretly”; from the conjunction of “sub”—”secretly” and “monēre”—”to warn”) is an official notice of a lawsuit. It is given to the person being sued. Besides being served “cold” it is generally served in person upon the person being sued.
When the defendant is served with a summons, he/she is officially on notice of the action. A summons consists of the nasty legal papers that advise a defendant that he or she is being sued and which asserts the power of the court to hear the case.
It is the form of legal process that commands the defendant to appear before the court on a specific date and time to answer the complaint asserted by the plaintiff. The summons is the legal fuse that ignites the lawsuit. And — as you might guess by now — it must be properly served. If the proper formalities are not observed, the court will lack the authority to move forward with the case.
“Summonses” are the legal notices that start a lawsuit. “Subpoenas” are orders to produce and/or give testimony. “Service” is the means by which formal legal notices are given.
See? Simple as that.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.
