SUBPOENAING A WITNESS TO SMALL CLAIMS COURT
If you are a party in a Small Claims case, you can have witnesses testify on your behalf at a trial. If you do not have a lawyer, it is strongly suggested that you find a lawyer if you hope to call important witnesses that are not one of the parties to the lawsuit. Call the Wisconsin State Bar’s Lawyer Referral and Information Service [(800) 362-9082 or (608) 257-4666 (in Dane County)] to find an area lawyer who handles cases like yours.
If you proceed without a lawyer, you can still subpoena witnesses to testify. Family might appear voluntarily for you, but businesspeople, police officers, and others who have no interest in your matter usually will not appear voluntarily. If you need their testimony to prove a key fact that the other party disputes, you can require them to come to court by subpoenaing them. Before subpoenaing people, you should talk to them to find out what they know and what they may say in court. Very often their recollections may be different than what you think they are, in which case their testimony might not assist you.
If it is properly served with the appropriate fees attached, a “subpoena” compels a witness to be present at trial. A subpoena form, which is titled “Subpoena and Certificate of Appearance” (form GF-126), can be obtained without charge from the Small Claims Clerk's office. You must fill out the form yourself. The Small Claims Clerk will usually answer any procedural questions you may have but is not allowed to give you any legal advice or help you complete the form.
On the form, you will need to insert the name and address of the person to be subpoenaed, the date and time of the trial, the name of the case, the case number, the name of the judge who will preside at trial, the courthouse address, and courtroom number. If you wish the person subpoenaed to bring documents, books, records, or other evidence in their possession, you can include that request on the form. Add a brief description in the space provided of the items you wish the witness to bring with him or her to trial.
Give the completed, original form to the Small Claims Clerk and keep a copy for yourself and for the witness. The subpoena must now be served on the witness, along with a one-day witness fee and a fee for travel from the witness' home to the courthouse and back. If these fees are not paid at the time the subpoena is served, the witness does not have to come to court. Check with the Small Claims Clerk as to the exact amount of these fees. Although a subpoena can be served at any time prior to the trial date, try to do it at least one week before the trial. You can serve the subpoena yourself or have the sheriff’s office do it.
To serve the subpoena yourself, it is best to personally hand the subpoena and witness fees to the witness. Try and bring someone with you who can later verify that you did serve the subpoena. Before giving the subpoena to the witness, fill out the “Service Information” box on your and the witness’ subpoena forms. File a copy of the filled in form with the court to prove its service.
If you prefer to have the sheriff’s office serve the subpoena, take a copy of the form to the sheriff's office. You must pay the sheriff a service fee. You must also give him or her the one-day witness fee and witness travel fee. The sheriff will deliver the travel and witness fee to the witness when the subpoena is served. If the sheriff is able to serve the subpoena, proof of that will be filed with the Clerk. If the sheriff is unable to serve it, he or she will return it to you. Sometimes you can find out whether your subpoena has been served by calling the sheriff's office. Keep the receipt you get when paying the sheriff's fee for serving the subpoena. It contains the transaction number, which you might need if the papers are misplaced.
If you have properly subpoenaed a witness and that witness fails to attend the trial without a reasonable excuse, he or she may be held in contempt of court. The court may order a bench warrant for the non-appearing witness and other sanctions as it sees fit. You may consider requesting that the trial be postponed, which the court may or may not allow. You may also be able to recover from that witness any damages you incurred as a result of his or her failure to attend.
The above is intended to provide general information only and is not a substitute for thorough and specific advice on an individual case. Depending on the complexity of your legal problem, you may need to consult an attorney for advice or representation.
This was prepared by the staff of Legal Action of Wisconsin, Inc. on behalf of low-income clients and was funded by the Legal Services Corporation, Washington, D.C., 20005. Any opinions contained herein are those of the authors and should not be construed as those of the Legal Services Corporation.
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©September 2006 Legal Action of Wisconsin, Inc.