The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," ran in the Champaign News Gazette.
I want someone to testify 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?
You need a subpoena—not a summons. Both get served on people. But one starts a court case, and gets served on the party being sued. The other gets served on witnesses, to make them testify.
A summons starts a civil court 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 gets 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. They’re not being sued; they’re just testifying as a witness.
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. 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’s office. Fill in: the case name and number; the name and address of the person being subpoenaed; 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, or an authorized process server, a subpoena can be served by almost anyone. It can also be served by certified mail, 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 the witness fee. That’s still just $20, and 20 cents a mile, round trip. Without the fee, the witness doesn’t 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 or evidence you need should be subpoenaed. “Friendly” witnesses who won’t testify unless subpoenaed may not be as friendly as you think.