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Serving a Subpoena

 

What is a subpoena?

A subpoena (pronounced “suh-pee-nah”) is an official notice that requires a person to come to court to testify and be a witness. The subpoena can also require the person to bring certain documents. For example, in a child support case, you may want to use the opposing party's employer's payroll records to prove his income or to use his bank records to prove that he can afford his share of the cost of supporting your child. If you can not get copies of those records yourself, you may choose to subpoena the employer's or the banks' records. The employer or the bank would then have to come to court with the documents you requested.

How can a subpoena help me?

Sometimes you need the testimony of someone who would not voluntarily come to court. Sometimes documents you do not have access to may strengthen your case. Serving a subpoena may provide the evidence you need to make a strong case in court.

How do I serve a subpoena?

You can use a deputy sheriff or constable to serve the subpoena. You do not need to be a lawyer or a public official to serve a subpoena. You can ask a friend to do it. Using a deputy sheriff or constable might help you be sure that it will be done properly, and the process will be easier. But it will cost money.  If you have a friend who will be serving the subpoena, he or she needs to serve it correctly so you can be sure that your witness will come to court.

Here are the steps:

  1. Get a subpoena form. MassLegalHelp has a blank subpoena form that you can download and complete on the computer or print out and fill in by hand. You can also get subpoena forms from the clerk's office at the court
  2. Look at the sample subpoena form to see how to fill out the form.
  3. Figure out how much the “witness fee” will be in your case.   The witness fee in Massachusetts is $6.00 for each day that the witness attends court plus a travel expense of 10 cents per mile to and from the witness’ home and the court. If the witness has a place of business or employment in the city or town where the court is located, then the 10 cents per mile is measured from where the witness works to the court.  The witness fee and travel expense for one day’s attendance at court must be given to the witness in advance. You can estimate the mileage. (More on this in step 11)
    • You may not need the person you are serving with a subpoena to go to court. If what you really want is a document like pay records, you can ask the person to send a “certified true and complete copy” of the document instead. When you serve the subpoena, you can attach a letter that tells the person how to send documents instead of going to court. There are things that the person has to do if he or she wants to send the document instead of going to court. Look at a sample  letter.
  4. Look up the address of the person you want to subpoena.  If you want wage records, look up the other parent's work place in the phone book. Call them and get the address, and find out who is in charge of the payroll records (also called the “Keeper of the Records.”)
  5. Using the address and the name, fill out a subpoena form. When you fill out the form, include:
    1. what you are requesting,
    2. the person you are requesting it from,
    3. the  court that person needs to go to,
    4. when that person needs to be there, and
    5. the name of your case (Your Name vs. Other Parent). Look at a sample subpoena
  6. The subpoena must be notarized. Take your filled out subpoena to any notary public. There is usually a notary public at your local City Hall or bank. The notary should notarize the subpoena with her stamp for free or for a few dollars.
  7. Make two photocopies of the notarized subpoena form and the affidavit of service that is attached to the subpoena.
  8. You can ask a friend to serve the subpoena., but your friend must be:
    1. over eighteen, and
    2. not a witness for your case, and
    3. not related to the person you are serving.
  9. Give your friend the "witness fee", to give to the witness. Write the amount of the witness fee on the back of all three copies of the affidavit of service. Your friend can take the copies of the subpoena to the other parent's work place.   Your friend has to fill out all three copies of the affidavit of service (the statement attached to the subpoena that says she has given the subpoena to the witness).
  10. Your friend can give the subpoena to the witness (the person in charge of payroll) or the receptionist or the owner of the business. When your friend serves the subpoena she needs to:
    1. tell the person she is serving that she is giving them a subpoena;
    2. give the person she is serving the original notarized subpoena form;
    3. give the person she is serving one of the copies of the affidavit of service your friend has filled in saying that she has served the subpoena; and
    4. give the person she is serving the witness fee.
  11. Bring the second copy of the subpoena and the original affidavit of service with you when you go to court.  You may need to show that the witness was properly subpoenaed.

It costs money to serve a subpoena. Costs include a witness fee, and a service fee if you use a deputy sheriff or constable. If you cannot afford the costs, you can ask the state to pay the service and witness fees. 

What if I cannot afford to serve a subpoena?

It costs money to serve a subpoena. Costs include a witness fee, and a service fee if you use a deputy sheriff or constable. If you can't afford the costs, you can ask the state to pay the service and witness fees. You will need to fill out a form called an “Affidavit of Indigency” and possibly a second form called a “Supplement to the Affidavit of Indigency”. You use these forms to show that your income is low and that you are eligible to have the state pay the cost of serving the subpoena. On the Affidavit of Indigency form, in Section 2, you check the box for serving a subpoena and write the cost. Remember that if you have a friend serve the subpoena, you do not have to pay the service fee.


Produced by Massachusetts Law Reform Institute
Last updated September, 2008


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