Subpoena - F.A.Q.s (Forms)

It is a document that compels a person to attend court and/or produce documents.

There are two types of Subpoenas.

1. A Subpoena requiring a witness to attend court is called a Witness Subpoena. You may use a Witness Subpoena to also list documents that you want that witness to bring to court when they testify. See generally O.C.G.A. 24-13-21. Georgia General Assembly Website.

2. A Subpoena requiring someone to bring documents only to Court (no testimony from that person is needed, only the documents are needed) is called a Subpoena for the Production of Documents. Historically, this type of subpoena used to be called a Subpoena Duces Tecum. See generally O.C.G.A. 24-13-23. Georgia General Assembly Website.

The Clerk of the Court for the court handling your case issues Subpoenas. See generally O.C.G.A. 24-13-21 Georgia General Assembly Website. and O.C.G.A. 24-13-23. Georgia General Assembly Website. The office of the Clerk of Court is located within the courthouse. In our county, the Clerk of Court is located at the Gwinnett Justice & Administration Center, 75 Langley Drive, Lawrenceville, GA 30046-6900. 770-822-8100.

That is a personal issue, which only you can decide. There is no right or wrong answer. Your witness may be offended if you subpoena him or her. Alternatively, the witness may not show up when you need them in court.

You should think of a subpoena as an insurance policy in case the witness does not come to court on the day of trial. If you have "subpoenaed" the witness and witness does not appear, the case can be continued. If you failed to "subpoena" the witness and the witness does not attend the judge is likely to deny your request for a continuance because you did not subpoena the witness to appear in the first place.

The Court often observes countless instances where persons promise to appear in court, and then never show up, or have an unexpected "emergency" come up which prevents their appearance at court.

While acquiring and serving subpoenas can be very time consuming, it is usually the safest route.

There are four common ways.

1. Any person over the age of 18 years old may personally "hand" deliver (or "serve") a Subpoena to a witness or party to the lawsuit. After a witness, or party, is served, the person serving the Subpoena should complete our court form, Affidavit of Service of Subpoena to be filed with Clerk. See below: MAG 11-19. See generally O.C.G.A. 24-13-24. Georgia General Assembly Website.
2. The party can deliver the completed subpoena plus a Sheriff's Entry of Service form, MAG 10-10, to the Sheriff's Department to have a deputy sheriff serve the subpoena. See below: MAG 11-10. The cost of this service is $10.00. This payment should be in cash, cashier's check or money order and delivered to the civil division of the sheriff's department. Their office is located within our courthouse, first floor, Gwinnett Justice & Administration Center, 75 Langley Drive, Lawrenceville, GA 30046-6900. (770-822-8200) If you choose this option, please deliver the subpoena, sheriff's entry of service form, and payment to the sheriff's department well in advance of the appearance date of the witness. It may take substantial time to locate and serve the witness.
3. Subpoenas may also be served by registered or certified mail or statutory overnight delivery, and the return receipt shall constitute prima-facie proof of service. Please bear in mind that this type of service requires the party being served with the subpoena to be served a minimum of twenty four hours prior to the court date, sign for the document, the return of the receipt, the filing of the receipt in court at least six hours prior to the hearing. The court recommends that you do not use this type of service unless you are reasonably assured that the subpoena will be "signed for" by the party being served and that you will have the return documents received by you in ample time to file with the court.
4. If you are attempting to serve a party to your lawsuit with a subpoena, and the party is represented by an attorney, then in that circumstance you may serve the subpoena upon the party's counsel of record by any of the ways set forth above.

This is defined by Georgia law, O.C.G.A. 9-10-12 Georgia General Assembly Website.

(b). Whenever any law, statute, Code section, ordinance, rule, or regulation of this state or any officer, department, agency, municipality, or governmental subdivision thereof provides that a notice may be given by "statutory overnight delivery," it shall be sufficient compliance if:

1. Such notice is delivered through the United States Postal Service or through a commercial firm which is regularly engaged in the business of document delivery or document and package delivery;
2. The terms of the sender's engagement of the services of the United States Postal Service or commercial firm call for the document to be delivered not later than the next business day following the day on which it is received for delivery by the United States Postal Service or the commercial firm; and
3. The sender receives from the United States Postal Service or the commercial firm a receipt acknowledging receipt of the document which receipt is signed by the addressee or an agent of the addressee.

The Court cannot enforce a Subpoena, and compel the person to attend court UNLESS the subpoena is properly served AND either the party files a return of service, such as MAG 11-19, Affidavit of Service of Subpoena OR the deputy sheriff files their Sheriff's Entry of Service, MAG 10-10 AT LEAST six hours prior to the court date and time and notice has been given to the opposing party. See O.C.G.A. 24-13-26. Georgia General Assembly Website. See MAG 11-19 and MAG 10-10.

Parties subpoenaing witnesses have a duty to send a copy of the return of service of subpoena to the opposing party. (See MAG 10-04)

You can serve any witness or party anywhere inside the state of Georgia.

If your witness lives in Gwinnett County, you can pay the Gwinnett County Sheriff's Department a fee ($10.00) for service, or delivery, and the Sheriff's Department can deliver ("serve") the Subpoena for you. See Generally O.C.G.A. 24-13-25.

This payment should be in cash, cashier's check or money order and delivered to the civil division of the sheriff's department. Their office is located within our courthouse, first floor,

Gwinnett Justice & Administration Center
75 Langley Drive
Lawrenceville, GA 30046-6900
(770-822-8200)

If you choose this option, please deliver these three items to the sheriff's department well in advance of the appearance date of the witness:

1. The subpoena
2. Sheriff's entry of service form, MAG 10-10
3. Payment.

Please remember that it may take substantial time to locate and serve the witness. You need to start the process of serving subpoenas well before the hearing date and time.

Subpoenas, in order to be enforced by the Court, have these "minimum" requirements. A subpoena must strictly meet 3 tests in order to be valid:

1. It must be properly served;
2. It must be served no less than 24 hours prior to the time that the appearance is required;
3. You must file proof of service that you have properly served the subpoena no less than 6 hours prior to the time that the appearance is required.

We always recommend that you begin to subpoena witnesses immediately after you are given notice of the court date. Locating and serving witnesses with a subpoena and filing the proper return with the court and giving notice to the other side can be very time consuming. Please don't wait until the last minute.

When a witness resides outside the county where the testimony is to be given, service of the subpoena, to be valid, must be accompanied by tender of the witness fee for one day's attendance $25.00 per day plus mileage of 45 cents per mile for traveling expenses for going from and returning to his or her place of residence by the nearest practical route. Tender of fees and mileage may be made by United States currency, postal money order, cashier's check, certified check, or the check of an attorney or law firm. See generally O.C.G.A. 24-13-25. Georgia General Assembly Website.

No, there is no cost to get a "blank" subpoena in the Magistrate Court.

However, witnesses are entitled to a fee of $25.00 per day. And, if the witness resides outside the county where the testimony is to be given, or the documents produced, then prior to appearance the witness is entitled to be paid the statutory appearance fee of $25.00 plus mileage of 45 cents per mile for traveling expenses for going from and returning to his or her place of residence by the nearest practical route.

Paying the $25.00 + the mileage costs prior to witness appearance is only applicable for those witnesses residing outside the county where the testimony is to be given.

The per day fee is applicable to witnesses inside and outside the county where the testimony is to be given. The payment of fees cannot be demanded as a condition precedent to attendance for an in-county witness.

Tender of fees and mileage may be made by United States currency, postal money order, cashier's check, certified check, or the check of an attorney or law firm.

See generally O.C.G.A. 24-13-25. Georgia General Assembly Website.

A subpoena for the production of evidence commands the person to whom it is directed to produce the books, papers, documents, or tangible things listed therein. See generally O.C.G.A. 24-13-23. Georgia General Assembly Website.

This is an excellent example of why continuances should be avoided, if reasonably possible, when witnesses have been subpoenaed. It is also an example of why judges are resistant to continuing a case for one party when the other party has already subpoenaed witnesses.

If the witness appeared for trial and your case was continued thereafter, you must serve the witness again with a subpoena that reflects the new trial date and pay fees.

If the case was continued before trial and you notified the witness not to appear, then you only have to re-serve the witness again with a new subpoena that reflects the new court date. You do not need to pay again since the witness never attended the trial the first time.

The party who subpoenaed you to attend court is required to pay you. Georgia General Assembly Website.

If you live outside of the county in which you are to give testimony, or produce documents, then the party subpoenaing you is required to pay you BEFORE you appear. As a subpoenaed witness you are entitled to a fee of $25.00 per day, plus mileage of 45 cents per mile for traveling expenses for going from and returning to his or her place of residence by the nearest practical route. Mileage is only applicable for those witnesses residing outside the county where the testimony is to be given. The per day fee is applicable to witnesses inside and outside the county where the testimony is to be given. If you live outside of the county where the testimony is to be given, the tender of fees and mileage may be made by United States currency, postal money order, cashier's check, certified check, or the check of an attorney or law firm prior to attendance.

If you live inside the county where the testimony is to be given, the payment of fees cannot be demanded as a condition precedent to (prior to) attendance for an in-county witness. However, it is prudent to work out that issue with the party who subpoenaed you. When the party subpoenaing you pays you is discretionary, whether the party subpoenaing you pays you is not. Payment of the statutory witness fee is required by state law. We encourage parties subpoenaing a witness to make the statutory payment to an "in-county" witness at the time the subpoena is served.