Subpoenas to give evidence

Report Writing

A subpoena is an order to attend court, produce documentsand give evidence as a witness.

 

Receipt of a subpoena should not be interpreted as a discourteous gesture or an affront. Lawyers understand that most health professionals would be happy to assist at court without the need for a court order. Courts however, have an expectation that a subpoena be issued and served. Lawyers are under an obligation to ensure witness availability, and maybe criticised by the court for failing to ensure that a witness is under subpoena. Courts have extensive powers regarding the failure to answer subpoenas, and a health professional’s cooperation is usually in the best interests of the health professional, the lawyer and the patient.

In some cases a health professional may be reluctant to attend court, believing that his or her evidence is not going to assist the patient’s case and may even hinder it. However, there is generally a good reason that you are being called; for example, to prove the chain of treatment received by the patient. It is for this reason that statements such as “Don’t call me to give evidence; I can’t support your client”, will not avoid you being called as a witness. The decision as to whose evidence will be required is one for the lawyer to make, however it is generally helpful to discuss your concerns with the lawyer first.

The subpoena should be “served” in accordance with the court rules. The usual practice is to serve the subpoena at the health professional’s practice, rather than serve it on the health professional personally. Process-servers retained by Slater & Gordon are required to act with courtesy and discretion at all times. If you experience a breach of this requirement we invite you to report it to us.

A subpoena will specify a date and time for attendance at court – almost invariably it is the likely date and time for the start of the trial. Life would be easier if a precise time could be allocated for giving evidence. Unfortunately, this is not possible as the time for giving evidence is usually dependenton a number of other factors; for example, whether the preceding case runs longer than anticipated.

Upon receipt of a subpoena it is well worth making contact with the lawyer to discuss the time you will be called upon. Often arrangements can be made to minimise lost time.

If evidence is given, the lawyer requesting the health professional to give evidence in court is required to pay the health professional a reasonable fee for the time spent in giving evidence.