18 Sep 23

What to Do if a Subpoena Was Not Served Correctly

| by

Last Updated on: 19th September 2023, 02:31 am

What to Do if a Subpoena Was Not Served Correctly

Getting slapped with a subpoena can really ruin your day. One minute you’re going about your business, the next you’re expected to drop everything for a court date. But don’t stress too much if you think the subpoena wasn’t delivered properly. You may be able to get out of it.

Subpoenas 101

First, let’s cover the basics. A subpoena is a legal document from a court demanding you show up and testify or hand over evidence. There are two kinds:

  • A subpoena ad testificandum – you have to appear in court as a witness
  • A subpoena duces tecum – you have to turn over physical evidence

These suckers are used in both civil and criminal cases. The court needs them to force people to cooperate with legal proceedings.

How Subpoenas Are Supposed to Be Served

For a subpoena to fly, it’s gotta be served properly. The rules depend on whether it’s for an individual or company.

Serving a Person

To serve an individual, the process server has to:

  • Hand it directly to the person named
  • Leave it with someone at their home who’s old enough to understand
  • Or give it to an authorized agent like a lawyer

Mailing or emailing a subpoena doesn’t cut it. The server has to hand it over in person.

Serving a Company

For companies, partnerships, etc. the subpoena has to be given to:

  • An officer or head honcho
  • A managing agent
  • Registered agent for service of process

Again, it can’t just be tossed in the mail. The rules vary a bit by state, but personal service is key.

When Should Service Happen?

In most states, you need to be served at least 10-15 days before the court date. That gives you time to clear your schedule and get your ducks in a row.

What If Service Was Screwed Up?

If something smells fishy about how you got the subpoena, you might be able to get it tossed out. Some common reasons include:

  • It was mailed instead of served in person
  • Left with someone at your home who shouldn’t have accepted it
  • You didn’t get it 10-15 days before the court date
  • Given to someone not authorized to take it

The rules vary by state, so look up the requirements where you live. Even small mistakes could make the subpoena invalid.

How to Fight a Bad Subpoena

If you want to challenge the subpoena, you’ll need to file a motion to quash with the court that issued it. Here are the basic steps:

  1. Draft the motion – follow your state’s format rules
  2. File the motion – submit it to the court clerk, pay any fees
  3. Serve the motion – send it to the lawyer or party who subpoenaed you
  4. Wait for a response – they might defend how it was served
  5. Request a hearing – ask the judge to hear arguments
  6. Attend the hearing – explain why the subpoena is no good
  7. Get the court’s order – judge decides whether to quash it

The process varies by court, so talk to the clerk to make sure you do it right.

What If You Ignore It?

It’s tempting to pretend you never got the subpoena, but that can seriously backfire. If you ditch a court date, the judge could hold you in contempt of court. That can mean fines or even jail time.

Take the legal route and file the motion to quash. That way if the subpoena gets tossed, you’re in the clear.

Should You Hire a Lawyer?

This stuff can get complicated, especially if you don’t have a law degree. Having a lawyer handle it for you is highly recommended. They can:

  • Review the subpoena and verify service was improper
  • File the right paperwork
  • Represent you at hearings
  • Advise you on the best move

Even if you think you can swing it solo, a lawyer can give you guidance and peace of mind.

What If You’re Crunched for Time?

If there’s no time to file the motion to quash before the court date, you can ask the judge for an extension. Explain in writing why you need more time.

If that fails, show up on the date listed and tell the judge you intend to challenge service. They may pause things to let you file the motion.

Can You Recover Costs?

If you get the subpoena quashed, ask the court to make the other party pay for expenses like:

  • Lawyer fees
  • Lost wages from dealing with it
  • Transportation and filing costs

Keep good records so you can prove the amounts.

Getting Legal Help

Fighting a subpoena takes knowledge of court procedures.