By Janet Ward Black and Rachel Scott Decker
Subpoenas and Witnesses I
Rule 45 of the North Carolina Rules of Civil Procedure governs the subpoena power. It provides as follows:
A subpoena for the purpose of obtaining the testimony of a witness in a pending cause shall, except as herein provided, be issued at the request of any party by the clerk of superior court for the county in which the hearing or trial is to be held. A subpoena shall be directed to the witness, shall state the name of the court and the title of the action, the name of the party at whose instance the witness is summoned, and shall command the person to whom it is directed to attend and give testimony at a time and place therein specified . . . A subpoena for a witness or witnesses need not be signed by the clerk, and is sufficient if signed by the party or his attorney.
N.C.R. Civ. P. 45.
The subpoena is often used to compel the production of documents at trial. Rule 45(c) of the North Carolina Rules of Civil Procedure governs the issuance of subpoenas for documents. The rule is similar to the regular issuance of subpoenas, however, the documents that should be produced must be designated on the subpoena. For these subpoenas, the witness should be requested to appear and testify and to produce the documents. The rule does permit hospital records custodians and custodians of public records to simply deliver the records to the court by certified mail, and accompanied by an appropriate affidavit, without the requirement that they testify. It should be noted though that the provision regarding hospital records applies only to hospital records as defined by N.C.G.S. § 8-44.1, and generally, medical records from a doctor’s office may not be submitted to the court in this manner, absent some stipulation from counsel.
Service of the subpoena may be made in a variety of ways. N.C.R. Civ. P. 45(e). The sheriff may personally serve the subpoena. Any person who is not less that 18 and who is not a party to the action may also personally serve the subpoena. Alternatively, the subpoena may be sent by certified mail, return receipt requested. Where the subpoena includes a request for the production of documents, the subpoena must be served personally or by certified mail, and the sheriff’s telephone service is insufficient.
Usually, when we serve a subpoena, we send the subpoena for service by the desired method, and we also send the subpoena by regular mail to the witness. Occasionally, especially if service is within a couple of weeks of trial, the witness receives the subpoena by regular mail and will come to court, even though he or she has not been personally served. Once the subpoena is served, it should be filed with the clerk’s office.
Contact with crucial witnesses should be ongoing. Hopefully, you will not run into instances where your witnesses’ schedule conflicts with the trial date because you would have considered the witnesses’ availability when the case was set for trial at the administrative session. However, sometimes these issues arise close to the trial date.
To combat these availability issues, subpoenas should be sent for service early, six to eight weeks ahead of the trial. If you are using the sheriff to serve the subpoena, six to eight weeks allows the sheriff ample time to serve the witness. Also, it permits vigilant follow up with the sheriff’s office to ensure that your subpoenas are indeed served. Early service of the subpoena also allows you to deal with availability issues, in the event that your witness has a conflict, whether that be crafting the case without the witness, deposing the witness, or moving for a continuance of the trial.
While we suggest that subpoenas go early to ensure that the witness is served, a thorough review of the file, and preferably, an interview with the witness should precede the issuance of the subpoena, although this is not always possible. The reason you should review the file is that you do not want to subpoena to trial a witness whose testimony is harmful to your case. Although you may elect not to call him or her, he or she may show up at the courthouse. If the defense attorney sees and speaks to that witness, that defense attorney may elect to call that witness, who may agree to stay and be called. It may be that the defense attorney never subpoenaed the witness and what brought the adverse witness to the courthouse was your ill thought subpoena.
In addition to merely issuing the subpoena, you should touch base with the witnesses you plan to call, within a few weeks of the trial. We touch base with the witnesses in person. In person contact allows us to view the witness’s demeanor and to determine whether the manner of the witness will detract from his or her testimony, making him or her a poor witness. It also allows the witness to become comfortable with us so that the witness will not be so rigid while testifying on direct. Lastly, if we decide definitely to call the witness, we have the witness accept service of the subpoena after our interview.
This later contact with the witness, be it in person or over the telephone, is important for several reasons. First, it allows you to re-interview the witness to refresh yourself and the witness about the testimony the witness will be giving. Second, it allows you to learn whether the witness’s story has changed since you last spoke to the witness. Third, and perhaps most importantly, it allows you to obtain all contact information from the witness for the week of trial. We obtain all phone numbers where a witness can be reached, including home, work, cell, and car phone numbers. Lastly, it provides an opportunity to explain to the witness how the trial calendar works and when we will call them to testify.
During the week of trial handling witnesses is important. Generally, we have our witnesses on standby, unless we know that we are first for trial, and we expect to call the witness the first day of trial. Otherwise, the paralegal telephones all witnesses the morning of trial and after calendar call to (1) let them know where we are on the trial calendar and (2) to stress to them they we need to contact them at all times. The paralegal asks the witness to check in with us when they are leaving a place for which we have a phone number, and let us know when they will be back or where else we can reach them. Once the case is actually called for trial, the paralegal calls all the witnesses and lets them know the case has been called and that their testimony will be necessary. Then, as witnesses are needed, the paralegal calls and directs the witness to appear at a certain time. We usually have all witnesses we intend to call in the morning to come first thing in the morning, and the witnesses who will testify in the afternoon to come first thing in the afternoon. This usually allows them to see another witness testify which can reduce the witness’s anxiety about testifying.
Handling documents in trial in an effective manner is important. To be prepared in trial, a number of items should be considered ahead of time. Generally, when you want to introduce a document into evidence, you need to think about how you plan on getting it into evidence. Is the document hearsay, and if so, does it meet one or several of the exceptions to the hearsay rule? Do you need a witness to authenticate the document?
Once you have determined that your document is admissible and that you will use it, you need to organize your file such that introduction of the evidence goes as smoothly as possible. Generally, we put our documentary evidence with the authenticating witness’s information so that we have everything together when we call the witness. We also have collected with the document any relevant case law to hand to opposing counsel or the judge in the event an objection is lodged to the introduction of our evidence.
To further ensure that we take as little time as possible in introducing a document, we generally do a few things ahead of time. Usually, we premark our exhibits so the jury does not have to wait for us to affix stickers to documents in the middle of trial. We also make sure to make extra copies for opposing counsel and the judge so that we do not waste time showing the judge or opposing counsel the document during trial. If we intend to publish the document to the jury, we make an individual copy for each juror, so that the individual jurors do not have to sit there and wait on all 12 jurors to view the same thing. This can be extremely time consuming.
Organization is key with documentary evidence. Attorneys tend to look and feel like bumbling idiots when they cannot quickly locate the documents needed in trial. It is essential that the file is properly organized so that the lawyer can find what he or she is looking for in a virtually effortless manner. You should discuss with your attorney the best way for him or her to find necessary documents in trial.
III. Motions in Limine
Making motions in limine is an excellent way to put evidence disputes before the judge before the other party has a chance to introduce or attempt to introduce the evidence in front of the jury. However, if a judge rules on a motion in limine, the party desiring to introduce the evidence must still attempt the introduction or the matter is not reviewable on appeal. The motion in limine simply provides that before the evidence is offered, the party must bring his or her intention to offer the evidence to the court’s attention and out of the presence of the jury, and the court must rule on the issue.
Generally, we move in limine to keep out any evidence that we do not want to come in and to introduce evidence that we do want in. You can prepare a motion in limine on just about any topic. We have moved in limine to keep out evidence that plaintiff’s medical bills were paid by health insurance, to keep out evidence that the defendant did not receive a moving violation in a motor vehicle accident, and to keep out evidence related to many other issues. Attached to this paper are various motions in limine that we have filed. Additionally, the Auto Torts Section of the North Carolina Academy of Trial Lawyers has an online trial notebook that can be accessed through the Academy’s web page at www.ncatl.org. The online trial notebook has a section containing various motions in limine that have been filed by other members of the Auto Torts Section. The court generally hears motions in limine soon after the case is called for trial. They are generally heard in a hurried fashion. To be prepared for a motion in limine, especially if several have been made, it is essential to have an organized file. Generally, in trial preparation, we make a large folder of our motions in limine. Within the large folder, we have separate folders containing the case law that supports each motion in limine. Where we believe the judge will take time to consider our motion or the motion is particularly important or unusual, we brief the issue. We have prepared issue briefs that we have handed to the court as each motion is argued. We have also made these arguments within our trial briefs to the court regarding the entire case. Even where we do not prepare a brief regarding a motion in limine, we generally prepare an outline of points to raise in the argument. While some of these motions are rather routine, the court hears the motions in rapid succession, and an outline can be particularly helpful in focusing the litigant’s attention to the issue quickly.
IV. Pre-trial Conference
The pre-trial conference is an opportunity to educate the presiding judge about your case. As the plaintiff, usually we are afforded the opportunity of speaking first. We generally come armed to court with a pretrial order and a trial brief. Rule 6 of the North Carolina Rules of General Practice governs pretrial conferences. It provides that attorneys should arrange within 21 days of the trial date to have a pretrial conference, and that a pretrial order be prepared within 7 days of the trial date. Realistically, the practices regarding pretrial conferences vary from county to
county, and the practitioner should be familiar with how close to the Rules of General Practice the practitioners of that county stick. Some counties comply with the rules, some prepare the pretrial order at the last minute, and others do not even prepare a pretrial order. Even if your county does not stick to the rigors of the rules, it is a good idea to have a pretrial order ready on the morning of trial. First, the order gives you ammunition if you run into an out of county judge that wants an order. Second, and more importantly, it forces you to organize your thoughts regarding the case and the evidence that you intend to present. Generally, the orders include stipulations of counsel, the witnesses and evidence to be presented, the issues to be submitted to the jury, and remaining motions or other issues that the court must address. The rule book contains a sample pretrial order and it is attached to this paper. Also attached are two orders that we have used in our office.
In addition to having a pretrial order prepared, we like to submit a trial brief, especially in cases with unusual twists. In our trial brief, we cover a variety of issues. We address the facts of our case, the legal issues that come up in most cases or that we know have come up in our case, the damages we intend to request that the jury consider, as well as the motions in limine that we have filed or are filing in the case. A trial brief gives the court a road map of the case. It also puts all the legal issues in one place for easy reference. The plan is that the court will go to our trial brief when objections or other sticky issues arise which have not been resolved at the motion in limine stage. Examples of trial briefs we have drafted are attached to this paper.