Dear aborshch-ga
Thank you for allowing me an opportunity to answer your interesting
question. We cannot offer legal advice but I can point out publish law
on the issue and relate my personal/professional first-hand
experience:
According to THE FEDERAL RULES OF CIVIL PROCEDURE VI. TRIALS RULE 45:
SUBPOENA the law states in paragraph (e):
?Failure by any person without adequate excuse to obey a subpoena
served upon that person may be deemed a contempt of the court from
which the subpoena issued. An adequate cause for failure to obey
exists when a subpoena purports to require a non-party to attend or
produce at a place not within the limits provided by clause (ii) of
subparagraph (c)(3)(A).?
FRCP RULE 45
http://www.law.cornell.edu/rules/frcp/Rule45.htm
In short, you COULD theoretically be held in contempt of court for
failing to appear in a civil case that you have been commanded by
legal subpoena to appear at.
That?s the bad new. The good news is much more interesting. You see,
this plaintiff?s attorney KNOWS that he cannot impose an undue burden
on you and that if he does the court can quash (cancel) your subpoena.
What?s more, the court could make him ?provide? for you to counter any
lost wages or inconveniences you incur as a direct result of this
subpoena. Look at this in paragraph (3)(A)(iv):
?(3) (A) On timely motion, the court by which a subpoena was issued
shall quash or modify the subpoena if it?[among other things]
(iv) subjects a person to undue burden.?
Furthermore, the law says, in paragraph (c) (1)
(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and service of
a subpoena shall take reasonable steps to avoid imposing undue burden
or expense on a person subject to that subpoena. The court on behalf
of which the subpoena was issued shall enforce this duty and impose
upon the party or attorney in breach of this duty an appropriate
sanction, which may include, but is not limited to, lost earnings and
a reasonable attorney's fee.
As a working, pregnant, mother of a young child whose responsibilities
clearly lie with the welfare of your child/children, your health, and
your job (in that order I would imagine) it would seem that by not
attending to your needs you may very well be considered one who has
been ?put upon? in this matter.
What can you do about it?
You can write a very polite letter to the Clerk of the Court
expressing your disappointment with the fact that the trial, as
described to you by [whomever] did not develop as promised and that
you made extraordinary sacrifices to honor the subpoena out of respect
for the Court. Because you were misled or misinformed [if you feel
this was the case] you would like to be released from your subpoena
and your obligation to testify. I think you will be amazed at the
response this brings.
Alternatively, [and this will also be a real attention getter] you
might negotiate with the attorney requesting your presence for better
compensation. Show him your letter BEFORE you give it the Clerk and
forthrightly express your intention to deliver it to the Court because
you are being adversely affected by this burden. The law is clearly on
your side here and I can almost guarantee his eyes will open wide even
if he checkbook doesn?t. As someone who has had MANY occasions to
testify in civil cases, and knowing that things rarely go as
predicted, I have always met with the attorney requesting my presence
and made it a point to state outright, in no uncertain terms, that I
am to be compensated $300 per hour for my expenses and inconvenience.
I have yet to be turned down. What this does is it keeps them from
calling you down to attend an 8 hour hearing if you are not going to
be on the stand that day, and when you do get called to the stand your
meter runs at $300 an hour insuring that you get out of there as soon
as possible. It should be noted that YOU ARE NOT BEING PAID FOR YOUR
TESTIMONY. This is a civil case as a participant potentially favoring
of the plaintiff and his paid attorney you are merely setting some
ground rules for your participation and compensation IF they value
your testimony. In some cases of course the attorney decides your
testimony isn?t worth $300 an hour to his case and simply releases you
to go home [important: get a written release or notify the Clerk of
the Court in PERSON that you are leaving BEFORE LEAVING if this
happens].
If you show this attorney your letter and express your intentions to
hand-deliver it to the Clerk of the Court, you may (a) end up being
released from your subpoena, or (b) remain for your testimony [no
matter how long it takes] and make up for your inconvenience by being
handsomely compensated for your trouble. The down side of being
compensated of course is that the thoughtful, caring attitude they
otherwise express to their ?witnesses? often ends and you become a
paid player. Again, you are NOT being paid for your testimony, but you
lose any argument that the trial is dragging on and you are ready to
go home. In other words, they can basically treat you any way they
want after you agree to compensation because nothing they do from that
point forward can be considered an ?undue burden? to you. The bottom
line is [refer back to the law and you will see] once you have been
imposed upon with an undue burden, you still have to honor the
subpoena unless you are released, but you can basically call the
shots.
Below you will find that I have carefully defined my search strategy
for you in the event that you need to search for more information. By
following the same type of searches that I did you may be able to
enhance the research I have provided even further. I hope you find
that my research exceeds your expectations. If you have any questions
about my research please post a clarification request prior to rating
the answer. Otherwise, I welcome your rating and your final comments
and I look forward to working with you again in the near future. Thank
you for bringing your question to us.
Best regards;
Tutuzdad ? Google Answers Researcher
INFORMATION SOURCES
FRCP RULE 45
http://www.law.cornell.edu/rules/frcp/Rule45.htm
SEARCH STRATEGY
SEARCH ENGINES USED:
Google ://www.google.com
SEARCH TERMS USED:
Federal civil procedure
Federal court
Civil case
Subpoena
Witness
Failure to appear
Penalty
Penalties |
