A summons and a subpoena are both tools lawyers use in civil litigation. The key difference between the two is that a summons is directed to someone who has been sued, and a subpoena is directed to someone who has possession of records or information related to a lawsuit.
Summons
A summons is a document that, literally, summons a defendant to appear in court. Along with the complaint, it is the opener in a civil lawsuit, the document that starts the ball rolling toward trial.
The summons reads something like this: “You have been sued. You have 30 days to appear in court to defend yourself” and so on. The 30 days mentioned in the summons begins to run once the defendant is “served,” or given a copy of the summons.
Defendants can be served in different ways. The traditional method is for a law enforcement officer or process server to deliver a copy of the summons to the defendant. Other permissible methods, depending on the circumstances, may include leaving a copy of the summons at the defendant’s home and mailing a supplementary copy; or delivering a copy of the summons to an office if the defendant is a corporation; or publishing a copy of the summons in a newspaper if the defendant’s location is unknown.
Every summons is accompanied by a document called a “complaint.” The complaint is a summary of the plaintiff’s case against the defendant. It explains what the plaintiff thinks the defendant did wrong, and what relief the plaintiff is asking the court to impose.
Subpoena
A subpoena is a legal document that requires an individual to appear as a witness in a legal proceeding, even though that person is not himself or herself a party to the lawsuit. A subpoena is served in much the same way as a summons. When a subpoena is served, it must include a daily witness fee and an amount to cover the witness’s mileage expenses to drive to the place where the testimony will be given.
A witness must appear if subpoenaed. He may file a motion to quash the subpoena to try to get out of it, and he may attempt to negotiate the scope of his testimony, but he cannot simply ignore the subpoena and not show up in court. If a subpoenaed witness fails to appear in court as required, a judge may issue a bench warrant for the witness’s arrest.
Subpoena duces tecum
A subpoena duces tecum, or a records subpoena, is a subpoena that requires an individual or organization to provide documents or records in a legal dispute, even though the recipient of the subpoena is not itself a party in the lawsuit. The recipient of a subpoena must make a reasonable, good faith effort to locate and produce the records requested.
If the documents requested are confidential, or if responding to the subpoena would burden the recipient in some other way, the recipient can file a motion to quash the subpoena. A motion to quash means a judge will review the subpoena and decide what records must be produced.
Subpoenas are commonly issued in personal injury litigation, where a plaintiff sues a defendant for medical expenses and lost wages. The defendant serves document subpoenas on the plaintiff’s doctor’s office and employer, and both recipients provide the requested records. Most document subpoenas follow this routine scenario.
A summons means a party has to defend herself in court; a subpoena means she merely has to testify in court or send records to the court. Readers who have received either and need legal advice about their responsibilities should contact a local attorney for more information.