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  • Writer's pictureBret "Recovering Lawyer" Thurman

Subpoena Options in Justice Court

Evidentiary and procedural rules are relaxed in Justice Court, but there are still rules. Plaintiffs still have the burden of proof. As discussed in a previous post, the plaintiff’s own testimony and a few supporting photographs and documents in the plaintiff’s possession are normally enough. But that’s not always the case.

If you think you need additional evidence, you might need to tap into the court’s subpoena power. Justice courts have a streamlined procedure for these things, as outlined below. It is always better to err on the side of caution in these situations. It’s better to have too much evidence than not enough. Once the hearing starts, you can probably tell if you need to show more proof or if you need to take your foot off the gas.

Testimonial Subpoenas

Most witnesses are apathetic. They do not particularly care who wins the case. So, these witnesses often need subpoenas to compel their appearance. Generally, subpoenas are legally enforceable if they are properly served and the witness resides less than 100 miles (150 miles in some places) from the courthouse.

In Justice Court, anyone who is not a party and over eighteen may normally serve a subpoena. Your husband could serve a subpoena if he is not named in the lawsuit. It’s usually more convenient to have the local sheriff or constable serve the subpoena. That’s especially true if the witness resides in another county. In these situations, the sheriff or constable in that county must serve the subpoena.

The requesting party must also pay witness fees and mileage fees. These fees, which usually run about $50 altogether, vary by jurisdiction. If you win, the judge could order the defendant to reimburse you.

Service authority might be an issue. Witnesses are more likely to appear if the sheriff tells them they must show up. But if that’s not the case, perhaps because the witness just needs a subpoena to show her boss, your husband will probably suffice.

Repairmen are the most common witnesses in home warranty claims. The judge might ask about the person’s credentials, the nature of the damage, and the cost of repair. In more extreme cases, such as a broken water heater that flooded the house, a hotel clerk might be a good witness.

Before you issue subpoenas, reach out to these people personally. If they balk at appearing personally, a document subpoena is often just as good, especially in justice court.

Documentary Subpoenas (Subpoena Duces Tecum)

These subpoenas command witnesses to appear and bring documents with them, or they command witnesses to provide copies of documents to the requesting party.

A written repair estimate or a hotel bill is often just as good as someone’s personal testimony. In grown-up court, these documents are often difficult to authenticate unless the person who made the document testifies. But these strict rules normally do not apply in justice court.

With some exceptions, the same service rules apply. There is usually no witness fee, and there is normally no jurisdictional limit. And, instead of commanding the witness to appear, the subpoena normally orders the defendant to produce a specific document or documents by a date certain.

Pre-subpoena communication is important. Repair estimates are a good example. Some people, especially freelance handymen who advertise on Craigslist, do not maintain such records. So, a subpoena duces tecum might be a waste of time.

Both kinds of interstate subpoenas are tricky if the defendant is in another state. Most jurisdictions belong to the Uniform Interstate Depositions and Discovery Act. The UIDDA allows the clerk in the place where discovery is sought to re-issue a subpoena without a formal legal motion.

Informal Subpoenas

A few brief words here. Your husband is not as intimidating as a sheriff, and a letter is even less intimidating than a court document. In other words, rather than following all the rules, sometimes it’s easier to just ask for it.

Letters requesting a document, or even a personal appearance in court, are not enforceable, even in justice court. But letters do clearly present requests and create a compliance paper trail.

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