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  1. #1
    Join Date
    Sep 2013
    Posts
    1

    Default What to Do if You're Subpoenaed to Testify During a Planned Vacation

    My question involves court procedures for the state of: Texas

    The company I work for is being sued by another company over a real estate transaction, regarding a building we sold them. The lawsuit is over damage in the building, which the buyer/plaintiff feels was not properly disclosed prior to sale. My only involvement, is that I used to work in the building and saw some of the damage while working there. I wasn't involved in the real estate transaction in any way.

    I was recently deposed by the plaintiffs attorney, and have not been called to appear at the trial, which will be in about 6 weeks. The attorney for my employer said my employer will not call on me to appear at trial, but that it's possible the plaintiff will call on me.

    My concern, is that I will be out of state visiting family on the date of the trial. My Mom is having surgery and I want to be there to help. I've already purchased an airline ticket, which is a nonrefundable fair. So I'm wondering, if there is a way to "get out of it", if I should be called to trial?

    Does the fact that I gave a deposition help me in any way? I figure they already asked me all the questions they could possibly need to?

    If I lay low and avoid being served, does that mean I don't have to appear? And would they have to serve me directly with the subpoena, or could they just serve my employer?

    Basically, is there any way for me to avoid being called to trial, or to get out of it if I am served with a subpoena?

    Any advice would be greatly appreciated!

  2. #2
    Join Date
    Feb 2011
    Location
    Arizona
    Posts
    387

    Default Re: Can I Get Out of This Civil Trial Subpoena

    The attorneys determine what questions need to be answered. If you are in fact subpoenaed, your company's attorney would need to file a motion to either have the subpoena quashed or modified to permit you to testify telephonically. Whether you are served directly or through your employer depends on the attorneys for the other party and the law in your state.

    A subpoena is a command to appear to give testimony or present evidence for examination. If you do not appear voluntarily, the court can compel you to appear by issuing a Bench Warrant for your arrest. In that situation, you will be handcuffed and taken either to court or to jail (depending on the circumstances) and held until the next hearing. Then you get to explain yourself to a very upset judge and deal with the consequences which could involve a fine or jail time.

    Your best bet is to consult your company's attorney.

  3. #3
    Join Date
    May 2013
    Posts
    125

    Default Re: Can I Get Out of This Civil Trial Subpoena

    The short answer is YES, there are ways to avoid having to show up in court

    If you are served, it will most likely be with an attorney issued subpoena.

    In Texas you have options to object which will require the Plaintiff to go through the trouble and expense of getting a court ordered subpoena.

    Texas Rules of Civil Procedure
    RULE 176.6(e) Response to Subpoena
    Protective orders. A person commanded to appear at a ... hearing, or trial, ... may move for a protective order under Rule 192.6(b)-before the time specified for compliance--either in the court in which the action is pending or in a district court in the county where the subpoena was served.

    The person must serve the motion on all parties in accordance with Rule 21a.
    A person need not comply with the part of a subpoena from which protection is sought under this paragraph unless ordered to do so by the court.

    The party requesting the subpoena may seek such an order at any time after the motion for protection is filed.
    When invoking the above rule, you should also make a claim under Rule 176.7 for Undue Burden and Expense, since you had already purchased airfare to go out of state to help a parent going through surgery. If they really want you enough to go through the trouble and expense of getting a court order, they should also be required to compensate you for your airfare. Your motion should include verified copies of your travel tickets and statements of the reasons for travel.

    RULE 176.7 Protection of Person from Undue Burden and Expense.
    A party causing a subpoena to issue must take reasonable steps to avoid imposing undue burden or expense on the person served. In ruling on objections or motions for protection, the court must provide a person served with a subpoena ... protection from undue burden or expense. The court may impose reasonable conditions on compliance with a subpoena, including compensating the witness for undue hardship.
    Attorneys occasionally get slap happy with subpoenas prior to a trial, and unless they really need your testimony, they may decide your testimony is not worth the trouble.

  4. #4
    Join Date
    Sep 2013
    Posts
    244

    Default Re: Can I Get Out of This Civil Trial Subpoena

    And no, your deposition would not be a substitute for your appearance ...

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