BY JOHN OCEGUERA, M.P.A., J.D.
It HAs been a rather uneventful morning on shift. You have just completed your station duties and are about to settle down at the kitchen table to enjoy a cup of coffee and the morning paper. Just as you are sitting down in your favorite chair, the station intercom booms out a request from the battalion chief (BC) for you report to his office. “Hmm,” you think to yourself. “What’s this about?” You know that anyone can be called to the BC’s office for various reasons throughout the shift, so you don’t give it a second thought. You fold your paper, grab your cup of coffee, and head over. When you arrive, the BC hands you a stack of mail and directs you to distribute it to the crews.
Somewhat relieved to learn this is the only reason you were called to see the BC, you gladly begin your assigned task. You notice, however, that included in the stack are several nondescript envelopes addressed to certain members of your crew. You’re not concerned; “It must be ‘fan mail,’ ” you think as you silently chuckle. Then you notice that one of the envelopes is addressed to you.
With your curiosity peaked, you tear open the envelope and unfold the document inside. Silently you read: “The State of (California, Indiana, New York, whichever state you reside in) sends you greetings.” You are reminded that it is December and the holiday season is in full swing, so you think to yourself, “How nice, a holiday greeting.” You continue to unfold the document only to realize that what you are looking at seems to be a legal document. Your holiday attitude changes to one of horror. “This can’t be good,” you mutter. Your eyes are drawn to what appears to be the title of a lawsuit, then your name appears on the document in BOLD letters. Now you begin to worry.
As your blood pressure rises, your training kicks in: Assess, and then react. You unfold the entire document. You begin reading from the beginning. “SUBPOENA” appears in bold letters near the top, along with a case number, then the title (i.e., the name of a plaintiff, the name of a defendant) and the ominous words, “WE COMMAND YOU to appear ….” Farther down, you read something about “duces tecum” and producing documents. Although you’re not entirely sure what duces tecum means (“Could that be Latin?” you ask yourself and then admit, “It’s all Greek to me”), you guess that it has something to do with producing documents since the subpoena commands you to both appear and produce documents. “What documents could I possibly be required to produce?” you find yourself asking out loud.
Next, you read that there are penalties associated with your failure to appear and/or produce the requested documents. “Penalties?” “Fines?” “What the heck?” After further review of the subpoena, you are convinced that you have been named by mistake; you’re not the guy with the goods.
With this thought foremost in your mind, you return to the BC’s office to elicit his assistance. Fortunately, your BC recently attended a class at an FDIC conference on this exact topic. One by one, he answers your questions about what to do when you have been served with a subpoena.
Firefighter: What is a subpoena?
BC: A subpoena 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 deposition (taking sworn testimony from a witness) or a congressional hearing]. Failure to comply with such an order to appear may be punishable as contempt (willful disobedience or open disrespect of a court, judge, or a legislative body).
Firefighter: How is a subpoena duces tecum different from a subpoena?
BC: A subpoena duces tecum is a type of subpoena that requires the witness to produce a document or documents pertinent to a proceeding. Duces tecum is from the Latin, meaning “you shall bring with you.”
Firefighter: How is a subpoena legally issued?
BC: Subpoenas are typically issued by a court or court officer (such as an attorney or a clerk of the court). Each jurisdiction (i.e., federal, state, local) has its own rules regarding who may issue a subpoena, although similar jurisdictions (i.e., all federal courts) abide by the same rule(s). In Nevada, for instance, attorneys were only recently authorized to issue subpoenas by the Nevada Supreme Court, which is considered the controlling author of the Nevada Rules of Civil Procedure.
Firefighter: Who can serve a subpoena?
BC: Subpoenas are most commonly served by a process server, although anyone over the age of 18 not a party to the action in which the subpoena was issued may serve a witness with a subpoena.
Firefighter: For what reasons are subpoenas and subpoenas duces tecum generally issued?
BC: The primary use of a subpoena is to cause or compel an individual to appear at a specified place on a specified date and time to give testimony. In some instances, a subpoena may be used for the sole purpose of securing time off from work for a witness who may be willing to appear and testify voluntarily but whose employer will not grant the witness time off from work without a subpoena compelling the employee’s attendance.
A subpoena duces tecum is most commonly used when a document or documents and testimony thereon are required in an action or proceeding. Perhaps the most common recipients of subpoenas duces tecum are “Custodians of Records,” or the person known as or considered the record keeper for an agency, business, or entity.
Firefighter: Can I ignore a subpoena or a subpoena duces tecum?
BC: Absolutely not. As stated on the face of the subpoena, a witness who does not respond to a subpoena or subpoena duces tecum may be held in (indirect) contempt of court.
Generally speaking, contempt is punishable conduct that disrupts or obstructs an official proceeding or order. Contempt of court may be any combination of direct or indirect and civil or criminal.
“Indirect contempt of court” occurs outside the immediate presence of the court and involves the violation of a court order (e.g., a subpoena).
Civil contempt is not a criminal charge. It is a show of force. When discussing civil contempt, commentators often use the clause, “the contemnor [one who views or treats with contempt] has the key to the cell in his own pocket,” meaning that the contemnor is required to perform some action. If the contemnor performs the action, he will be released immediately from whatever sanction the court has imposed for his violation of or failure to comply with the terms of the subpoena.
Firefighter: How do I determine what type of case the underlying case is?
BC: Generally speaking, if the plaintiff named in the caption is a state (e.g., “The State of Nevada”) or the United States government, the underlying case likely will be a criminal action. On the other hand, if the plaintiff named in the caption is an individual, a business, or an agency, the underlying case likely will be a civil action.
Firefighter: How do I determine exactly what I am being compelled to do by the subpoena?
BC: Subpoenas are usually very specific on their face concerning the instructions directed to the witness who is the subject of the subpoena. If you are still uncertain as to what you are being compelled to do after reviewing the subpoena, simply call the attorney listed on the subpoena, the attorney for the party who had the subpoena issued, and ask about the specifics of the subpoena.
Firefighter: What is the proper way to respond to a subpoena or subpoena duces tecum?
BC: Use your common sense. Even if the subpoena clearly states where you’re compelled to appear and testify or clearly identifies the documents you are to produce and testify on, it is always a good idea to contact the attorney for the party who had the subpoena issued. That way, you can acknowledge the subpoena and provide your contact information in case the date, time, or place of your testimony changes and you need to be notified at the last minute.
If you have been served with a subpoena duces tecum and are asked to produce a document or documents in addition to testifying, you often can arrange with the attorney for the party who had the subpoena issued to produce copies of the documents before the date specified on the subpoena duces tecum in lieu of appearing in person on the date and time specified in the subpoena. Communication is the key to ensuring your proper response to a subpoena.
Firefighter: What are some tips I should keep in mind when I’m preparing to testify?
BC: Here are some simple things to remember:
• Clean up before you show up.
• Dress casually. If you are preparing to testify in deposition, keep in mind that most of the other people in attendance will also be dressed casually. If you are preparing to testify at trial, wear your uniform if you are on duty at the time, or a tie and jacket if you are off duty at the time.
• Answer only the question you are being asked (i.e., don’t volunteer information).
• Provide complete but concise answers (don’t go on and on and on and on).
• If you were served with a subpoena duces tecum and are bringing a document or documents on which you are to testify, review the documents before you testify so you are familiar with what is contained in the documents.
• Testify using words you use on a daily basis, as if you were speaking with your grandmother and not to an attorney. Some witnesses make the mistake of trying to sound technical or sophisticated and end up having the opposite effect.
• Don’t allow the attorney(s) asking questions to put words in your mouth. If you disagree with something being said or you don’t quite understand what you are being asked, politely say so.
• Make eye contact, and speak up. In most proceedings, a court reporter will be transcribing your testimony as you testify. Speak up as a courtesy to her, if not to everyone else listening to your testimony. Also make sure all your answers are audible. Shaking your head will not work. You must say “yes” and “no.”
• Offer to spell any technical terms or words with unusual spellings you use in your testimony. Not only will the court reporter appreciate this, but it will also add to your professionalism.
• Relax. During your entire career in firefighting, you probably will never be involved in a court proceeding that gets out of hand like those on television and in the movies. That’s not reality.
Firefighter: Do I need to hire an attorney to accompany me to my deposition or to the trial to testify?
BC: Most witnesses who have been subpoenaed to testify do not need to hire an attorney to accompany them. A witness is free to do so, but the cost of hiring an attorney for this purpose in most instances will come out of your pocket.
If you are subpoenaed in your official capacity-for instance, because you responded to a fire that was allegedly caused by an arsonist and now someone is being charged with a crime-you may be entitled to representation through your city or county district attorney’s office. Contact the district attorney’s office once you have been served with a subpoena to find out.
Firefighter: Am I entitled to charge for and receive payment for my time in deposition or at trial?
BC: Most, if not all, states have laws entitling a witness to a small fee for mileage to and from the place of testimony. You should receive this amount at the time you are served with the subpoena.
If you are served with a subpoena duces tecum, you should be entitled to charge a per-page copy fee to cover the cost of copies for the document(s) you are producing in compliance with the subpoena duces tecum.
Otherwise, a witness is not entitled to charge for and be paid for time spent testifying unless that person is an “expert witness”-a doctor, for example.
Firefighter: Am I entitled to charge for my time and costs associated with compiling the documents requested in the subpoena duces tecum?
BC: Not your time, only the cost of reproducing the document(s) you are asked to produce (i.e., a reasonable copy fee).
Firefighter: Is it necessary for me to review the transcript of my deposition testimony for substantive or clerical mistakes?
BC: It’s not necessary, but it is a good idea to do this because it allows you not only to correct any mistakes in your testimony, substantive or clerical, but also to read for yourself how you come across or “sound” testifying. Reviewing your deposition transcript will help you be a better witness next time you are subpoenaed.
Firefighter: Can I get paid for my time spent reviewing the transcript of my deposition testimony?
BC: No, not unless you are an “expert witness” and charge this time to your client.
• • •
Don’t be nervous about being served. It’s a normal part of the legal procedure. Most firefighters will be served at some time in their careers. Pay attention to the subpoena, take it seriously, but don’t stress yourself out about it. ■
