What Is the Difference Between a Summons and a Subpoena?

What Is the Difference Between a Summons and a Subpoena?
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Last updated: December 2011

A subpoena and a summons are similar because they both give notice to someone about a court proceeding. Some differences between a subpoena and a summons include:

  • who they are given to
  • when they are given
  • what they are used for

What is a summons?

A summons is an official notice of a lawsuit. It is given to the person getting being sued, the defendant. If you sue someone, they need to be told about it so they can come to court and prepare to defend themselves. When you serve the defendant with a summons, you officially tell that you are suing them. You must follow the rules for giving the summons to the defendants to properly file your case. For helpful videos on filing court papers, see the Law Basics Video Series.

What is a subpoena?

A subpoena is a court order. It requires someone to come to court, go to a deposition, or give documents or evidence to you. In a deposition, someone answers questions about a legal case, under oath. If you need a witness to come to court or give a deposition, you can serve them with a subpoena. You can also use a subpoena to get evidence from a person not involved in the lawsuit. You can also use a subpoena to get documents from a company.

How do I send a summons?

If you sue someone, you must serve them with a summons. This gives them notice of the lawsuit. “Service of process” is the formal name for giving a defendant a summons to come to court. Each defendant must get individual service. You cannot serve the defendant yourself. You must serve a summons in one of three ways:

  • Service by the Sheriff 
  • Service by a Private Process Server
  • Service by Certified Mail (only available in certain cases)
Service by the Sheriff

Service by the Sheriff is the easiest way to serve your summons. You will have to pay the Sheriff a fee unless you have a court order that says you do not have to. To see if you qualify, read Filing Court Papers for Free or watch our video Filing Court Papers for Free.

If you want the Sheriff to serve your summons, take the summons  to the Sheriff. You will need one original and two copies, with the complaint attached to each one. The Sheriff will give the summons to the defendant by hand. They can also give it to someone who lives with the defendant who is at least 13 years old. Next, the Sheriff fills out a sworn statement on the back of the copy of the summons. Then, they file it with the Clerk of the Court. The Court must have a record that the Sheriff served the summons.

Service by a Private Process Server

If the Sheriff cannot serve the defendant, you may want to try a private process server. The Sheriff only needs to try service once, and the defendant might not be home at the time. A private process server will try to serve your summons more than once.

You need to ask the court to let you use a private process server. To do this, you must file an “Ex-Parte Motion for Appointment of Special Process Server.” A private process server must be at least 18 years old and cannot be involved in the lawsuit. The private process server can serve the defendant only after the judge approves them. After they serve the summons, the private process server fills out an affidavit. They should sign it, notarize it, and attach it to the original summons. The Court must have a record server give the summons to the defendant.

Corporations and partnerships get service in a different way. Usually an agent accepts service for the corporation. Sometimes an officer of the corporation will accept service.

Service by Certified Mail

Some cases allow service by certified mail, such as a small claims case. You do not need to have someone else serve the defendants. You may deliver the summons and a copy of the complaint by certified mail. It should be restricted delivery, return receipt requested. Restricted delivery means that only the person you addressed the summons to can sign for it. A Return receipt is a green postcard that shows that the post office delivered the letter. Make sure you keep a record of when you sent the letter and to whom. Also, keep the green return receipt when you get it in the mail. It will prove to the court that you served the defendant.

How do I send out a subpoena?

Sometimes, a witness will not testify in court willingly. You can subpoena the witness, which requires them to come to court. You can also use a subpoena during discovery. Discovery happens before trial. It lets both sides find information and evidence to prepare for their case. During discovery, you can subpoena a person to come to a deposition and answer questions. You can also get evidence from a person or company who is not a party in the lawsuit.

To subpoena a witness, you can get the form in the clerk’s office. Fill in the name of the case, the name and address of the witness, and the courtroom for the case. When you subpoena a witness, you must pay them a witness fee and travel costs. The clerk can help you figure out the amount. Fill out the subpoena and make out a check or money order to the witness. Then, you or any other adult may give the subpoena and payment to the witness. You can give the subpoena in person or by certified mail. Mail should be restricted delivery, return receipt requested. Make sure you keep a record of the delivery. You must be able to show that you gave the witness the subpoena. You may also ask the sheriff's office to deliver the subpoena and check to your witness.

During discovery, you can also get the subpoena form in the clerk’s office in your courtroom. For a deposition, fill in the name of the case and the name and address of the witness. Also, fill in the place, time and date of the deposition. If you want documents, you must list what kind of documents you want in the subpoena. Once you fill out the form, you or any other adult may give the subpoena to the witness. You can give the subpoena in person or by certified mail. Mail should be restricted delivery, return receipt requested. Make sure you keep a record of the delivery. You must be able to show that you gave the witness the subpoena. You may also ask the Sheriff’s Office to deliver the subpoena.

Can I ignore the subpoena or summons?

You should not ignore either a subpoena or a summons. You should talk to a lawyer if you get either one.

A summons is an invitation to come to court. It is not an order so you do not have to do what it says. But, if you ignore a summons, you will likely lose the case against you. The court will usually decide the lawsuit in favor of the person suing you. The court could decide that you have to pay money or that you must stop doing something. You will have to obey the court’s final decision even though you did not take part in the lawsuit.

There is one kind of summons that you cannot ignore. You cannot ignore a Citation to Discover Assets. If you lose a case and owe someone money, but do not pay it, you could get a Citation to Discover Assets. If you get a Citation to Discover Assets, you should talk to a lawyer right away. You should not ignore the Citation or fail to appear on the court date. If you do, you could face penalties.

You cannot ignore a subpoena. A subpoena is a court order to come to court. If you ignore the order, the court will hold you in contempt. You could go to jail or face a large fine for ignoring the subpoena. Subpoenas are used in both criminal and civil cases. They can be given to anyone that might have helpful information about the case. This can be testimony or documents and evidence. If you get a subpoena and do not want to testify or turn over documents, do not just ignore it. Ask a lawyer to help you figure out what to do.

What if the summons was not properly served?

If the other party serves you improperly, go to court on the date stated in the summons and tell the judge. The judge should not let the case against you go on if service was improper. The judge will probably not throw out the case against you. Instead, they will probably let the plaintiff try to serve you again. If the plaintiff properly serves you on the second try, the lawsuit may not be over.

If someone serves you a subpoena, do not ignore it. It does not matter if service was proper or not. If you know about the subpoena then you should follow the orders in it. If you think service was incorrect, you should talk to a lawyer right away about your options and rights.

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