Attorney James M. Lynch reviews the Massachusetts laws which give teeth to subpoenas in civil cases, including the issuance of bench warrants.
Depositions are a fundamental part of civil and criminal law in Massachusetts. Attorneys serve deposition subpoena witnesses for many reasons, including a desire to obtain sworn testimony or documents held by the witness. Witnesses who ignore deposition subpoenas in civil cases do so at their own peril, where Massachusetts law provides substantial remedies – including arrest – for individuals who fail to comply with a lawfully issued subpoena.
Depositions are part of modern life. Some day you may come home and find inside your mail box or front door a subpoena commanding you to appear at a lawyer’s office and give testimony before a notary public. The subpoena will require you to show up on some date in the very near future, and it may even command you to bring certain documents with you.
The first thing you may notice on the subpoena is a caption identifying it as a civil case. Your first instinct might be to ignore the subpoena because, unlike criminal cases where everyone knows people get arrested, you believe that no one is arrested in civil matters. Right? You might ignore it because the person who issued the subpoena is also the lawyer conducting the deposition, so why should you obey a subpoena from a lawyer in private practice in a civil case. Right?
Wrong on both counts.
Ignoring a civil deposition subpoena can result in serious consequences, including the issuance of a bench warrant for the arrest of the non-attending witness. Witnesses ignore civil deposition subpoenas at their own peril.
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Depositions are a core tool for attorneys conducting discovery in a civil case. A deposition might be best described as a formal out-of-court hearing in which a witness offers testimony under oath by answering the questions of an attorney in front of a stenographer, who creates a transcript of the deposition. Most depositions take place in the office of the attorney asking the questions, although other locations are not unusual.
In Massachusetts, depositions are scheduled through the issuance of a subpoena, which is generally prepared by the same attorney who’s asking the questions at the deposition. The subpoena is typically is served on the witness by a constable or process server, whose only real responsibility is to leave a copy of the subpoena at the witness’s home. Issuing a deposition subpoena in a civil case does not require a court order. Lawyers who are public notaries are authorized by the Massachusetts General Laws and the Massachusetts Rules of Civil Procedure and Domestic Relations Procedure to issue subpoenas in civil cases. If a Massachusetts lawyer represents a party in an open civil case, that lawyer is likely to issue subpoenas to compel the deposition of witnesses in Massachusetts.
If a witness objects to participating in a deposition, he or she has a remedy: the witness may file a motion to quash in the court where the civil case is pending. If the witness is unable to attend the deposition on a particular day due to a scheduling conflict, most attorneys will work with the witness to schedule the deposition for a mutually convenient day.
Why can’t a witness simply ignore a deposition subpoena in a civil case? Maybe the best way to explain is this: under Massachusetts law, a subpoena signed by a notary public has the power of a court order, and a witness who fails to respond to a subpoena can be found in contempt in court for failing to obey the order embodied in the subpoena. This can result in serious repercussions.
Witnesses served with a deposition subpoena in a civil case sometimes believe they can ignore the subpoena. After all, they think, people go to jail in criminal cases, but not in civil cases. A witness who believes the civil subpoena doesn’t have the full weight of the law behind it, does so at his or her own peril. Subpoenas are serious documents and their integrity depends upon the Massachusetts legislature and the court system backing them up. G.L.c. 233, § 6 and Mass. R. Civ. P. 45(g) do exactly that by giving civil courts the authority to hold witnesses in contempt for failing to appear for a deposition after being served. Moreover, the Court has the authority to issue a bench warrant commanding the police or sheriff to go out and arrest such witnesses. These powers are not restricted to criminal cases, but apply to deposition subpoenas issues in civil cases too.
One online legal dictionary defines a bench warrant as follows:
A bench warrant is an arrest warrant issued by a judge or court, most commonly when a defendant fails to appear at a scheduled court hearing. This is also known as a “Failure to Appear,” or “FTA,” warrant. When a bench warrant is issued, it gives law enforcement agencies the authority to detain the defendant and bring him to court to address the issue. To explore this concept, consider the following bench warrant definition.
If a party fails to appear at a deposition without filing a motion to quash or rescheduling the deposition with the issuing attorney, then the attorney may appear in court and seek a bench warrant for the arrest of the non-attending witness. Typically, the police or sheriff’s department will arrest the witness and bring him or her to court, where the witness will appear before a judge. In many instances, a judge may release the witness the same day if the witness promises to attend the deposition at a future date. However, witnesses can end up spending more than one night in jail for a variety of reasons.
A similar tool that attorneys have at their disposal is called a capias. Blacks Law Dictionary defines a capias as follows:
[A] capias warrant is essentially an order to arrest and detain an individual for the purpose of guaranteeing a court appearance. The Latin term capias translates into English as “for the taking of,” but it is not commonly associated with the seizure of property or the search of premises. A capias warrant should be considered a writ of arrest.
In most instances, a capias warrant is issued in connection with failure to appear before court in a criminal case. A defendant who fails to appear at a criminal court proceeding, for example, could expect a capias warrant to be issued for his or her arrest.
Note that Black’s says that a capias warrant is issued for failure to appear before a court in a criminal case in most instances. A capias can also issue in a civil case. One common example is contempt proceedings for non payment of child support in the Probate and Family Court. Although child support cases are civil, Massachusetts judges will routinely issue a capias for a party who fails to attend a contempt hearing for failing to pay child support.
For the average witness in police custody, the distinctions between a bench warrant and a capias are largely irrelevant. It is enough to know that a capias is the more frequent remedy when a witness or party fails to attend a scheduled court hearing, while bench warrants are the more frequent solution for witnesses who fail to attend a deposition. What matters most is that both a capias and a bench warrant give the police the power to arrest a person, and deliver that person to a judge.
It is important to note that the issuance of a bench warrant for a witness’s failure to attend a deposition is not automatic. An attorney must take significant steps to obtain a bench warrant, resulting in legal fees and costs that the attorney’s client must be willing to bear. That said, witnesses should also be aware that a focused and motivated attorney in a civil case may have the tools to ensure that a bench warrant is executed with more speed and efficiency than an ordinary warrant. This is not a situation where the arrest will only occur when the witness gets his or her next traffic ticket. Rather, the arrest is likely to happen within days, not week, and is likely to take place at the witness’s home or work place.
Here are some potential outcomes to expect if a witness ignores a civil deposition subpoena:
- The witness may be arrested, perhaps even in his or her place of employment.
- Upon arrest, the witness will be taken directly to the court where the civil case is pending.
- Expect a hearing on whether the witness should be held or released from custody.
- The judge may order the witness to pay some or all of the attorney’s costs, sheriff’s – even those associated with his or her arrest – as a condition of of the witness’s release.
- And after all of the above, the witness must still comply with the subpoena and appear for a deposition.
In short, witnesses should not ignore deposition subpoenas.
Instead, the witness or his or her attorney should call the attorney who issued the subpoena and confirm the witness’s compliance. If a witness needs more time or has a scheduling conflict, the witness should let the attorney know, and the attorney is very likely to work with the witness.
About the Author: James M. Lynch is a Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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