The word “subpoena” is Latin for “under penalty” which is an apt description of its purpose. A subpoena is used to require a person to be at a specified place at a specified time for a specified purpose. Failure to comply with the commands contained in the subpoena may subject the person being subpoenaed to a criminal charge of contempt of court. The penalty involved with such a finding may well involve arrest, jail, and a monetary penalty.
RCW 5.56.060 Result of failure to attend.
If any person duly served with a subpoena and obliged to attend as a witness, shall fail to do so, without any reasonable excuse, he shall be liable to the aggrieved party for all damages occasioned by such failure, to be recovered in a civil action.
RCW 5.56.061 Failure to attend considered contempt of court.
A failure to attend as required by the subpoena, shall also be considered a contempt of court as provided in chapter 7.21 RCW.
RCW 5.56.070 Attachment of witness.
The court, judge, or other officer, in such case, may issue an attachment to bring such witness before them to answer for contempt, and also testify as witness in the cause in which he or she was subpoenaed.
Service is primarily controlled by:
CR-45(c)
Service. A subpoena may be served by any suitable person over 18 years of age, by exhibiting and reading it to the witness, or by giving him a copy thereof, or by leaving such copy at the place of his abode. When service is made by any other person than an officer authorized to serve process, proof of service shall be made by affidavit.
The phrase “A subpoena may be served by any suitable person over 18 years of age” is interesting in that no definition of “suitable person” is provided. That said, you should review the lesson entitled Who May Serve Legal Process in the State of Washington found elsewhere in this course. Briefly the basic requirements can be outlined as follows:
- The server must be over the age of 18 years and;
- The server must be competent to be a witness in the action and;
- The server shall not be a party to the action.
If the process server fits the above description then he or she is most likely a “suitable person” for the purpose of serving a subpoena.
The next phrase, “by exhibiting and reading it to the witness,” is interesting because of the potential interaction it may require between the server and the witness if the subpoena is read to the witness. Generally it is good practice, primarily for safety reasons, to keep a service as short as possible. Yet this method of service is available should the need arise. Although it is only speculation, the rule may have been written in this manner to assist an illiterate person or a blind person to understand what is required of him or her.
The third phrase, “or by giving him a copy thereof,” is the preferred method by which subpoenas are served. In effect, it means a personal presentation of the subpoena to the person for whom it is intended. This is the preferred method of service.
The fourth phrase, “or by leaving such copy at the place of his abode,” is also a typical method of service. However, it is curious in that it does not state the subpoena must be left with anyone! Taking the words at their face value it is conceivable the service of a subpoena could be upheld if it is simply tacked to the front door of the target’s residence, “place of his abode.” Doing so however, is not considered good practice and should only be done with the direct and specific instruction of your client as it is highly unlikely a court will hold a person in contempt if the subpoena is served in this fashion.
It is best to look elsewhere for guidance. A reasonable place to look is the set of rules specifying those circumstances under which a summons may be served. Generally it is safe to say that serving a subpoena “in the manner of a summons” will result in proper service. See the lesson on serving summonses and, in particular, RCW 4.28.080(15) for additional information.
The last part of the rule, “When service is made by any other person than an officer authorized to serve process, proof of service shall be made by affidavit,” relates to the proof of service the process server must use. Although it specifies an affidavit must be used by any person who is not “an officer authorized to serve process,” a declaration will suffice thanks to court rule GR-13, the full text of which is available in the appendix materials of this course.
Service Instructions Summary
Present documents to:
| Who | When & Where | |
| 1. | The person named therein | Anytime Anywhere |
| 2. | A co-resident of the person named therein | Anytime at the usual place of abode of the person named therein* |
*Follow rules for service of a summons on a person.
NOTE: If target is an entity (not a person) then present to a managing agent of that entity.
NOTE: If target is a position (such as a records custodian) then present to a person who holds that position or an equivalent.
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This is a rough diagram of a typical courtroom in the state of Washington. Courtrooms vary a great deal from city to city and county to county but they all have the same basic structure.
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