How does a pro se litigant subpoena witnesses?

Full Question:

I'm representing myself in my divorce case. Can I get people I want to testify on my behalf subpoenaed & how do I go about it?
08/27/2009   |   Category: Courts ยป Pro Se   |   State: Texas   |   #18286

Answer:

A person who represents herself in litigation (in trial) is known as a pro se litigant. Pro se is a Latin phrase meaning "for oneself; on one's own behalf; without the assistance of a lawyer." A subpoena is a court document that directs a person to appear in a specific court in a named courthouse at the address stated in the subpoena at a specific time on a specific date. Subpoena is Latin for "under penalty." A subpoena duces tecum is a subpoena that requires a witness to appear and to bring specific documents, records, or things to court.

Under the rules of many courts, subpoenas may be issued either by the court or by a lawyer. A pro se litigant normally is not allowed to sign a subpoena, but instead must get the court clerk to sign any subpoenas.

In many states, the witness statutes require the person subpoenaing a witness to give the witness not only a subpoena, but also money calculated generally at a certain base amount plus mileage at the statutory rate from the person's residence or place of work to and from the courthouse. Also many states have rules about who can serve a subpoena, and many states do not allow parties to serve subpoenas. A pro se litigant is by definition a party to the litigation and so as a general rule may not serve subpoenas upon witnesses. A pro se litigant could and should talk with a professional process server in the local where the trial will occur about having the process server prepare any subpoenas, get the court clerk's signature upon all subpoenas, and then serving the subpoenas upon the witnesses. A witness must appear only if properly subpoenaed. If the witness is to be compelled both to appear and to bring documents to court, then the witness must be served with a subpoena duces tecum.

Witness Law & Legal Definition.
A witness is a person who testifies under oath in a trial or a deposition in the lawsuit. The plaintiff or defendant may be a witness. Witnesses have first-hand knowledge about matters relevant to the case and their testimony is subject to the applicable rules of evidence. A lay witness is an ordinary person who testifies based upon their personal knowledge and life experiences. An expert testimony testifies based upon their qualifications of expertise in their field.

Witness may also be used to refer to the act of observing the signing of a document like a will or a contract and signing as a witness on the document attesting that the document was signed in the presence of the witness. Should the document later be called into question, the witness may be called to testify to its making.

Witness Fees Law & Legal Definition
Witness fees are minimal monetary amounts paid to witnesses for their time in appearing in court and may also include an amount for travel expenses. Witness fees are governed by local court and state laws, which vary by jurisdiction.

The following is an example of a Texas statute governing witness fees:

WITNESS FEES
1. Except as provided by Section 22.002, a witness is entitled to 10 dollars for each day the witness attends court. This fee includes the entitlement for travel and the witness is not entitled to any reimbursement for mileage traveled.
2. The party who summons the witness shall pay that witness's fee for one day, as provided by this section, at the time the subpoena is served on the witness.
3. The witness fee must be taxed in the bill of costs as other costs.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1993, 73rd Leg., ch. 103, § 1, eff. Jan. 1, 1994; Acts 1993, 73rd Leg., ch. 449, § 16, eff. Sept. 1, 1993.

§ 22.002. DISTANCE FOR SUBPOENAS.
A witness who is represented to reside 150 miles or less from a county in which a suit is pending or who may be found within that distance at the time of trial on the suit may be subpoenaed in the suit.

Added by Acts 1993, 73rd Leg., ch. 103, § 1, eff. Jan. 1, 1994.

§ 22.003. FEES FOR WITNESSES SUMMONED BY A STATE AGENCY
(a) In this section:

1. 'Commercial lodging establishment' means a motel, hotel, inn, apartment, or similar entity that offers lodging to the public in exchange for compensation.
2. 'Commercial transportation company' means an entity that offers transportation of people or goods to the public in exchange for compensation.

(b) A witness summoned by a state agency is entitled to receive from the agency:

1. one dollar for each day the witness attends court;
2. mileage at the rate provided by law for state employees if the witness uses the witness's personally owned or leased motor vehicle to attend court;
3. reimbursement of the witness's transportation expenses if the witness does not use the witness's personally owned or leased motor vehicle to attend court; and
4. reimbursement of the witness's meal and lodging expenses while attending court if the court is at least 25 miles from the witness's place of residence.

(c) A state agency may directly pay a commercial ransportation company for the transportation expenses and a commercial lodging establishment for the lodging expenses of a witness if this section otherwise requires the agency to reimburse the witness for those expenses.

(d) A state agency may not pay a commercial transportation company or a commercial lodging establishment or reimburse a witness for transportation, meal, or lodging expenses under this section at a rate that exceeds the maximum rates provided by law for state employees.

(e) After receiving the witness's affidavit, the court clerk shall issue a certificate showing the fees incurred under this section.

(f) The witness[0] fees[0] must be taxed in the bill of costs as other costs.

Added by Acts 1993, 73rd Leg., ch. 449, § 17, eff. Sept. 1, 1993. Renumbered from V.T.C.A., Civil Practice & Remedies Code § 22.002 by Acts 1995, 74th Leg., ch. 76, § 17.01(2), eff. Sept. 1, 1995.

§ 22.004. FEE FOR PRODUCTION OR CERTIFICATION OF DOCUMENTS.

(a) A custodian of a record who receives a request for production or certification of a record under a subpoena, a request for production, or other instrument issued under the authority of a tribunal that compels production or certification of a record is entitled to $1 for production or certification of the record.

If more than one record is produced or certified, the custodian of the records is entitled to only one fee under this section.

(b) A custodian of a record who produces or certifies a record under Subsection (a), but who is not required to appear in court, is not entitled to a witness[0] fee[0] under Section 22.001.

(c) The party who requests production or certification of a record shall pay the fee required for the record, as provided by this section, at the time the subpoena, request, or other instrument is served.

(d) The fee required by this section must be taxed in the bill of costs as other costs.

(e) The fee required by this section is in addition to any other fee imposed by law for the production or certification of a record.

Witness Lists Law & Legal Definition
At the beginning of a jury trial, both parties to the case may be required to submit a list of prospective witnesses. In a criminal case, it may be used to inform prospective jurors of who will likely testify, thus allowing prospective jurors to state if they know any of the witnesses and would therefore possibly be partial. However, disclosure of witness names can be subject to a protective order.

If either party desires the testimony of a given witness, that party must take the appropriate steps to obtain the witness’s presence at an appropriate time and in an appropriate fashion, and no party should assume a given witness will be produced by the other side simply because that witness’s name appears on the witness list, or has previously been identified as a potential or likely witness. Failure to include a witness on the required witness lists may result in that witness' testimony being prohibited at trial, or other sanctions. Court rules vary, so requirements in your jurisdiction should be consulted.

The following is an example of a federal law governing witness lists:

"§ 13.22 Exchange of witness lists, statements, and exhibits.

1. At least 15 days before the hearing or at such other times as may be ordered by the ALJ, the parties shall exchange witness lists, copies of prior statements of proposed witnesses, and copies of proposed hearing exhibits, including copies of any written statements that the party intends to offer in lieu of live testimony in accordance with § 13.33(b). At the time the above documents are exchanged, any party that intends to rely on the transcript of deposition testimony in lieu of live testimony at the hearing, if permitted by the ALJ, shall provide each party with a copy of the specific pages of the transcript it intends to introduce into evidence.

2. If a party objects, the ALJ shall not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to the opposing party as provided above unless the ALJ finds good cause for the failure or that there in no prejudice to the objecting party.

3. Unless another party objects within the time set by the ALJ, documents exchanged in accordance with paragraph (a) of this section shall be deemed to be authentic for the purpose of admissibility at the hearing."

Fact Witness Law & Legal Definition
A fact witness is a person with knowledge about what happened in a particular case, who testifies in the case about what happened or what the facts are. Fact witness testimony consists of the recitation of facts and/or events as opposed to an expert witness, whose testimony consists of the presentation of an opinion, a diagnosis, etc.

Hostile Witness Law & Legal Definition
A hostile witness is witness a who is called by and who testifies for the opposing party or, be termed a "hostile" witness by the judge, which means that the witness is then subject to leading questions and cross-examination. It is an adverse witness who is known to offer prejudicial evidence as a result of adverse interest or bias.

A hostile witness is also called an adverse witness.