Court & Hearings

The following question was originally submitted to John Roska, a lawyer Someone who represents clients in courts or who gives legal advice and writer for the weekly column "The Law Q&A" in the Champaign News Gazette. The article has been updated to include changes in the law and additional information.

Question

I want someone to testify To answer questions under oath in my divorce case, but they say they won’t come unless they have to.  How do I summon them into court, so they have to testify?

Answer

You need a subpoena A court order requiring someone to show up in court, usually to give information —not a summons A notice to a defendant that a lawsuit against them was filed in a court and that the defendant has to show up in court . Both get served on people. But a summons starts a court case and gets served on the party A person or business involved in a court case in a role like plaintiff, petitioner, defendant, respondent, or intervenor. being sued. The subpoena gets served on witnesses, to make them testify at a court hearing When the parties in a case present their sides of a case to a judge or other officer or a deposition An oral statement made under oath .

A summons starts a civil court A court where people or businesses bring problems in front of a judge. Civil courts are different from criminal courts, where a defendant is accused of a crime by the state. case. It officially notifies the other party that they’re being sued.

Personally tagging someone with a summons provides what’s often called the fundamentals of due process of law: notice, and an opportunity to be heard. It guarantees that the other side can have their day in court.

A subpoena requires someone to testify in court. Where a summons gets served on the opposing party in the court case, a subpoena can be served on anyone with useful evidence Anything used to show that something is true . They’re not being sued; they’re just testifying as a witness A person who answers questions in court under oath .

A summons is just an invitation to come to court.  It’s not a court order. If the party who gets served with a summons declines the invitation to come to court and contest the case against them, they lose by default. The party who sued gets whatever they sued for.  

A subpoena is a court order to appear. Anyone served with a subpoena must show up in court. Disobeying the order to appear in court can result in contempt of court When someone violates a court order or disrespects the court . Judges can impose a variety of sanctions on recalcitrant witnesses, to make them testify.

That’s where the name comes from. In Latin, “sub poena” means “under penalty.” In olden times, those were the first words on the writs served on witnesses. It sent the message that there was a price to pay for ignoring the writ—just as there is today for ignoring a subpoena.

To get a subpoena, go to the Circuit Clerk The office that takes care of files and documents for circuit court cases ’s office. Fill in:

• The case name and number; 
• The name and address of the person being subpoenaed. This is the person you want to come to court; and
• The date, time, and location of the court hearing where they’re supposed to testify.

Unlike a summons, which must be served by a Sheriff A county officer who can serve people with summons. They can evict someone with a court order. , or an authorized process server Someone other than a sheriff who serves a summons , a subpoena can be served by almost anyone. It can also be served by certified mail A document delivery service such as the US Postal Service that sends a party a receipt as proof that the documents were mailed and delivered , as long as there’s a signed receipt proving the witness actually got it.

A subpoena must be served at least 7 days before the court date. Along with the subpoena, you must also serve Giving court documents to someone the witness fee. That’s still just $20, and 20 cents a mile, round trip. Without the fee, the witness does not have to show up.

You can also use a subpoena to obtain documents from someone. It just needs to say that the person being served can comply by providing the specified documents.  

Most public employees (e.g., law enforcement, building inspectors) require a subpoena before they can testify in court. Hostile witnesses whose testimony Evidence given orally by witnesses or evidence you need should be subpoenaed. “Friendly” witnesses who won’t testify unless subpoenaed may not be as friendly as you think.