Getting a Summons in the mail is hardly the most pleasant event. But it’s also no reason to panic, you just have to know what to do. Much the same is true of receiving a Subpoena, although the follow-on steps are a bit different.
The two most important things you must know are:
- Do not ignore the Summons or Subpoena; and
- Get some legal advice. A little good advice can greatly reduce the inconvenience and aggravation that legal action can cause.
What is a Summons?
A Summons is court order requiring someone to appear in court on a given date. In a civil lawsuit, a Summons is served on the defendant and requires his or her presence to defend a case. A Summons, served with a Statement of Claim, means that you are being sued.
When you get a Summons, you or your legal representative must:
- File an appearance before you can take any further step in the proceedings, including appearing in court; and
- Go to court on the day of hearing.
If either you or your lawyer fail to attend the hearing, the court may make orders against you in your absence, including awarding costs to the plaintiff of bringing these proceedings. Failing to appear may result in a default judgment.
A Summons may also require a person to give oral or documentary evidence at a hearing. The term once used to describe such a document was ‘Subpoena’. For the sake of clarity, these two terms will be dealt with separately in this post. There are also serious penalties for failing to respond to a Subpoena
Limiting the damage of a civil lawsuit
Even as a defendant, there may be ways that you and your attorney can manage the disruption in your life that a lawsuit can mean. A Summons must, first of all, be properly served. An improperly served Summons has no effect at all. Be sure to discuss with your attorney the details of when and how you received the Summons.
Even with a properly served Summons, you and your attorney may want to discuss a range of possible responses. Before you get into the details of a vigorous legal defence, it may be wise to explore alternative dispute resolution mechanisms or settlement options.
What is a Subpoena?
In classic terminology, a Subpoena is an official document issued by a court that requires someone, not necessarily a party to the lawsuit, to give evidence that is relevant to a legal dispute.
In many cases oral evidence will be given at a deposition, which is sworn testimony given in response to questions asked by the attorney for one of the parties. A deposition often takes place in an attorney’s office, outside the official courtroom setting. A Subpoena may also require the production of written documents.
If you fail to respond to a Subpoena, you may be cited for contempt of court. The penalties for contempt of court may be quite serious.
Are there ways to limit the scope of a Subpoena?
First of all, a Subpoena, like a Summons, must be properly served. Secondly, the party requiring the testimony or production of documents must pay the reasonable costs of travel, copying, and so on.
More importantly, however, someone required to produce documentary evidence may seek to have the Subpoena set aside or limited for a variety of reasons. For example, these may include:
- Vague or non-specific description of the documents required;
- Evidence that the request is a “fishing expedition,” designed to determine whether there is a potential case instead of being factually relevant to an actual one:
- The documents being subpoenaed are irrelevant, especially if there is an indication that the request is meant to harass the witness or party to the lawsuit; and
- The documents have confidentiality restriction that would be breached by providing them to the court.
If you have received a Summons or a Subpoena, you must respond. But you should respond carefully. The attorneys at Owen Hodge Lawyers would like to help you deal appropriately with the these forms of legal process. Please call us as soon as possible to schedule a consultation at 1800 770 780.