What is the Difference Between a Summons and a Subpoena?

Summonses and subpoenas are both legal documents that call a person or business into a United States court, but the difference has to do with why. A summons is generally used to inform someone that they are actually a party to a lawsuit, usually as a defendant. In most cases this means that the person is being sued, and the document will both inform them of the action and put them on notice that they need to prepare a defense. A subpoena, on the other hand, is typically used to call witnesses to court. Lawyers for each side of a legal dispute are permitted to choose witnesses who will offer testimony in support of their version of events, and witnesses are usually required to attend. Subpoenas inform prospective witnesses that they have been called, and also usually set out details of when the trial is and what the penalties are for failing to appear. Both types of documents usually compel mandatory appearance, and ignoring them can have serious consequences.

When someone is being sued in the U.S., the law says that he or she needs to receive notice both of who has brought the action and where. This information is generally conveyed in a summons, which is an official order to appear in court. The exact information contained can very somewhat by jurisdiction and type of case, but most of the time it identifies who filed the action, names the lawyer representing that party, and states when the trial will be happening if a date has been set.

Sending summonses is one of the first things that people do when they start a legal action. Almost anyone can sue anyone else for basically any reason, but a summons is a way to make sure that both parties have the same advantage when it comes to information about the legal proceeding and time to prepare, at least formally. These sorts of documents are used in both civil and criminal matters.

People can also be called to court to act as witnesses in a trial, often to offer a personal accounting of certain events, to offer expert knowledge, or to testify about someone else’s character or general nature. These people are not themselves parties to the case, but they nonetheless play an important role in the proceedings. Both the plaintiff and the defendant are usually allowed to call a certain number of witnesses in order to build their cases. The specific number varies based on the type of trial and the discretion of the presiding judge.

This type of document is similar to a summons in that it informs a person that he or she is required to appear in court. The document basically acts as a source of information, and provides the person with the details they need to appear. Contact information for the lawyers involved as well as the court is usually attached, and people can call with questions — but the notice is not optional. People who receive orders to appear as witnesses are required by law to comply, though in most cases the courts do authorize a “witness fee” that will cover any travel and lodging expenses a person incurs while complying.

There are typically two types of documents used to call witnesses, depending on the sort of testimony that’s required. A subpoena ad testificandum typically requires a person to prepare oral testimony about a certain event, person, or happening, while a subpoena duces tecum is focused more on documents and paperwork. A person who receives the first type is usually called based on their observations or first-hand knowledge of something or someone. The second, by contrast, is more focused on records and written documents. Someone who gets this sort of order usually still has to appear, but his or her main function is to bring records and talk about their legitimacy, how they were prepared, or anything else the parties’ lawyers ask.

Both party-related and witness-related documents have to be delivered to their intended recipients though what is known as “due process of service.” Different courts and jurisdictions sometimes have slightly different rules when it comes to what counts as “good” service, but in most cases the rules are designed to make sure that the recipient receives the appropriate papers with enough time to respond.

Service for a summons is often the most intensive. People often have to be physically handed these papers in order for them to be effective. Sometimes they can be mailed, but usually only through registered mail that requires a signature to more or less prove delivery. Orders calling witnesses are usually mailed, but always with a return receipt or other proof of delivery. Failing to answer either document is usually very serious, and as a result the courts typically want proof that a person actually received the notice in the first place.

The primary consequence of ignoring a summons is a default loss of the case, which is generally unfavorable. Judges don’t often look well on parties who fail to appear, and default judgments tend to be decided overwhelmingly in favor of the person or business who filed the case. People sometimes think that simply not appearing can make the case “go away,” but this isn’t how it usually ends up. Default judgments tend to be monetary, and the courts typically have the power to seize the losing party’s assets or garnish his or her wages to settle the debt. People who don’t appear in criminal actions often risk receiving heightened penalties and maximum sentences.

Failing to answer a witness request, on the other hand, can land a person in jail. Witnesses are considered essential to the proper functioning of most trials, as they allow each side to build the best case possible. When someone who has been called fails to appear or ignores the order, he or she is generally considered “in contempt of court,” which is serious. People can sometimes get out of witness service if they have a hardship or other problem, but this usually has to be with the permission of the judge or lawyers involved. Simply ignoring the request is not usually an acceptable way forward.