Wednesday, 28 September 2016

Listen to the lawyer.

What is a subpoena?

A subpoena is a legal document issued by the court (though prepared by a lawyer) with the court's seal, ordering a witness to attend court on such and such a date to testify or produce documents on behalf of the party who requested for the issuance of the subpoena. 

Because it is issued by the court:-

(a) non-compliance with a subpoena amounts to contempt of court; and
(b) evasion of a subpoena (where successfully proved) amounts to contempt of court.

Why are subpoenas issued / necessary?

Under the laws of evidence, a party who makes an allegation has the burden to prove it, that is, by producing documents or calling witnesses to provide oral testimony. 

The general rule is that the maker of a particular document must attend court to prove the authenticity and the contents of the document, unless both parties agree to dispense with such proof.

(Maker of a document = the person who wrote / signed / prepared the document)

Hence, the bundle of documents filed in court is to be categorized as follows:-

(a) Part A - both parties agree that the document is real and agree with its contents;
(b) Part B - both parties agree that the document is real but someone disagrees with its contents; and
(c) Part C - someone says the document is fake and disagrees with its contents.

Subpoena witnesses are usually formal witnesses, for example, a bank officer to testify that a bank account statement is authentic, because it was disputed by the other party for who knows what reason. 

Some subpoena witnesses are essential witnesses who can testify concerning a material (important) fact, for example, the Plaintiff says in his pleadings or during trial that Person A was there when the Defendant caused the accident and can prove that he's telling the truth. Person A has to be called to corroborate the Plaintiff's allegation, otherwise it is only a bare allegation without substance. Under the Evidence Act, the Defendant can ask the court to presume that the Plaintiff is hiding something by failing to call Person A despite being able to do so (that's a whole other topic to discuss). 

Subpoena witnesses usually have nothing to do with the case, in that they are not personally liable for anything. If they were personally liable, they would have been made a co-Defendant or a third party to the case. So they actually have nothing to lose from attending court. Especially since the law requires the party who subpoenaed the witness to give the witness "reasonable allowance" for attending court.

What I'm trying to say is - don't bash the lawyer for requesting for the subpoena. He's just trying to do his job under the law, and not trying to "trouble" or "disturb" you, or "make your life difficult".

When is a subpoena served?

When a lawyer hands you a subpoena, lets you read it, or explains its contents to you - all the while being in arm's reach of you - it's complete service on you even if you don't sign it or take it with you. The lawyer should explain this to you after you refuse to sign / take it. So listen carefully.

What do I do after I've been served with a subpoena?

Attend court. Consult a lawyer if you must, but if that lawyer you consulted is worth their salt, they'll tell you to comply with the subpoena. Non-compliance with a subpoena entitles the lawyer to immediately apply for a warrant of arrest to be issued against you on the very day you fail to turn up in court. 

If, for some reason, the lawyer is unable to put you on the stand on the day of trial and the matter is postponed to another date, the lawyer will write to you to inform you of the next trial date. It's his duty to do it.

Don't accuse the lawyer of forcing you to attend court, because:-

(a) the subpoena is a court order, not a lawyer's order;

(b) shouting won't magically excuse you from attending court; 

(c) you are entitled to challenge the subpoena in court if it really has nothing to do with you; and

(d) you're not attending court for nothing - under the law, the party who called you has to reimburse you for expenses incurred.

Please note that you are required to attend court from the date mentioned in the subpoena until you finish your testimony. The lawyer usually tries to make the best arrangements for all witnesses so that you don't have to come to court unnecessarily (read: wait a whole day only to be told the case is postponed). 

Why? Because then they'll have to pay you more, and trust me - they don't want to do that.

What happens in court?

The lawyer who requested your presence will ask you questions in what we call the "Examination-in-Chief". 

The opposing lawyer will then ask you questions in what we call the "Cross-Examination". During this stage, things may or may not get a little uncomfortable, because the opposing lawyer is basically trying to disprove everything you just said. 

The first lawyer will then ask you some clarifying questions in what we call the "Re-Examination" if necessary, that is, if you said something inaccurate or which requires clarification during the Cross-Examination. 

Then you go home and receive your allowance. 

Why am I saying all this?

Because I'm sick and tired of people who refuse to listen when I try to explain these things to them ("Nothing to do with me, I don't want to hear it"), and then get angry and complain ("you're doing this to disturb me"), when all I've done is send them a letter informing them of then next trial date (as required under the law). 

Seriously, people. 

Listen to the lawyer. 

If you're cooperative (read: not red-faced, shouting, or making false accusations), you guys can be best friends.

Plus, why are you running away from the subpoena? Have something to hide?

Just sayin'.