Subpoena Ad Testificandum or Subpoena Duces Tecum?

Horace Reed joined the 5:00 am club this morning.  He did his 100 pushups in fast sets of 25 each and then one more perfect one for good measure.

“I bet opposing counsel didn’t do that this morning!” he thought to himself as he drank his morning coffee.

Depositions were set for 10:00 and Horace was ready to give testimony. He met his client in the lobby of opposing counsel’s building. “Any tips for my deposition?’ the client asked.

Horace smiled and said, “No we weren’t served with a subpoena ad testificandum. It was a subpoena duces tecum.”

“Speak English, please.  I don’t understand lawyer talk.  What are those things?”

The Difference Between Subpoena Ad Testificandum and Subpoena Duces Tecum

As they entered the elevator and pushed the buttons, Horace said, “A subpoena ad testificandum is a paper that requires a person to appear and give testimony at a certain time and place, commanding him or her to put aside all pretense and excuses.”

“And the other one? ”

“A subpoena duces tecum is a paper that requires a person to give testimony and bring certain papers with him that matter to the case.  In fact, usually the purpose is just to get the documents and when they are produced the deposition is canceled.”

“Why wasn’t this deposition canceled then?”

“I guess they didn’t think they got all the papers they wanted from you,” Horace said as the elevator doors opened and they stepped into opposing counsel’s suite.

This excerpt from an article by Jane Eaton Hamilton struck me as a particularly poignant description of the losses felt by people going through divorce:

“We had lost our wives and husbands. We had lost our best friends. We had lost sex. We had lost our children. We had lost our animals. We had lost our homes. We had lost our furniture. We had lost our gardens. Our incomes had severely plummeted. There were new therapists to pay, and lawyers to pay, and moving costs to pay. Some of us had to replace even the spices in our cupboards and the toilet brushes behind the bowls. We moved without screwdrivers, without our art, without our shampoo.”

Today I received a subpoena by fax from opposing counsel.  A subpoena is a court document requiring a witness to appear and testify.  This one requires my client to appear at a Scheduling Hearing two days from now.

The problem is that my client had been excused from attending this hearing because he is out of town and no testimony is taken at Scheduling Hearings anyway.

So I checked MD Rule 2-510 which governs subpoenas.  I found two things wrong with this subpoena.  Firstly, it has to be served on me either by hand delivery or first class mail, not by fax.

Secondly, the rule states, “Unless impracticable, a party shall make a good faith effort to cause a trail or hearing subpoena to be served at least five days before the trial or hearing.”

Unless something changes, I’m planning on being at the hearing with a copy of Rule 2-510, but not my client.

“I want to ask my spouse to discuss a divorce settlement and put a stop to the litigation,” said Harry on the phone to his lawyer as he paced the floor of his office.

“I always think it’s better to settle than litigate if you can,” said Tom, pausing to take a puff on his pipe.  “Most cases settle.  There are not enough courthouses and judges to try all the cases that are filed.”

“When is the right time to ask?” Harry said as he fell into his office chair.

“Settlement negotiations and litigation proceed on parallel railroad tracks toward the trial date.”  Tom’s pipe went out and there was a moment’s silence as refilled it with tobacco.  “You can settle at any time before trial.  I’ve had trials settle on the  courthouse steps on the day of trial and one even settled at the noon recess after a half day of trial.  People settle for all kinds of different reasons, and you never know when they are ready to settle, so I keep asking every time I get a chance during the litigation process.”

“But do you think it will show weakness or desperation on my part that will cause me to lose bargaining power in the negotiations?”  asked Harry.

“I think it shows strength and confidence,” Tom replied, while relighting his pipe.  “You don’t have to settle on terms you think are unreasonable and you don’t have to bid against yourself.  But it never hurts to let the other side know that the door to good faith settlement discussions swings open on easy hinges.”

“Great.  I’m going to call her.  I can’t thank you enough for this advice.”

“Yes, you can.  When you get my bill.”

After accepting an appointment to defend a criminal case in federal court, Chad Dorsk, an attorney in Newport News, Virginia, discovered the trial date was one of the days of his planned honeymoon.

The Virginia Lawyer’s Weekly reports that Dorsk said in his Motion for Continuance, “In support of this motion, the Defendant’s counsel represents to the Court that the undersigned is getting married on May 28, 2011, and has planned a honeymoon thereafter.  In order to preserve and ensure a future of marital harmony and bliss Counsel respectfully requests that this continuance be granted.”

We won’t know whether the judge would have granted the motion or not because the defendant decided to plead guilty and the trial was canceled.

Michelle Pont and her husband started a truck hauling business in 1991 in California.  Over the years they accumulated millions in properties and investments.  But when Michelle decided to divorce, she discovered that her husband controlled all the family assets.  She maxed out all her credit cards on legal fees and expert witnesses in the first few months of the divorce.

She thought about taking a settlement for less than she thought was fair.  Then she discovered Balance Point Divorce Funding, a Beverly Hills company that lends money for divorce expenses in exchange for a percentage of the money obtained by the borrower in the divorce.  There are no interest charges and no payments are due until the recovery.

Attorney Stacey Napp, started Balance Point last year, after her own lengthy and expensive divorce.  She says she has loaned more than two million dollars to ten women for divorce expenses so far.

Read More:  Taking Sides in a Divorce, Chasing Profit by Binyamin Appelbaum

When Harry Truman got mad and fired off a letter, he would put it in a drawer in his desk and let it cool off for a day.  Most of those letters were never sent.  What would he have done with email?

Now there is a new product called ToneCheck, reports the ABA Journal, that will scan your outgoing email before you send it and point out phrases that have unintended emotional charge.  Tone Check then suggest alternative language.  For example, if you write something is “annoying or troubling” you will be prompted to substitute “It has been concerning me for some time”.

Of course if it completely edits tone, some of the emails I get from opposing counsel will be totally blank.

LeBron James said last night that he asked his mother, Gloria James, for advice while he was making up his mind to play basketball for the Miami Heat.

In the meantime, Leicester Bryce Stovell, 55, was filing suit in the U.S. District Court in D.C., claiming that he is LeBron’s father and asserting father’s rights.  Stovell is a lawyer in private practice, formerly with the Securities and Exchange Commission.

The 22 page, 95 paragraph complaint alleges Stovell met Gloria in a Washington bar in 1984 and goes through the history of their relationship.  Stovel is suing both LeBron and Gloria for $4 million for fraud, defamation, misrepresentation, breach of oral contract and tortious interference with contract.

A divorce settlement agreement is supposed to take care of everything related to the marriage and divorce, past, present and future.  So lawyers usually take great care in drafting them.  They have to peer into the future, predict everything that can go wrong, and select just the right words for clarity in case some judge is trying to figure out what they meant ten years from now.

Which is what the judge has to do in movie star Michael Douglas’s divorce, reports  His ex-wife, Diandra Douglas, has filed suit for 50% of his income from Wall Street 2.

Her $45 million dollar settlement in 2000 has a provision that states she is entitled to half his earnings from any residuals, merchandising or spinoffs of movies made during the marriage.  She claims that Wall Street 2 is a “spinoff”.  He claims that it is a “sequel”.  What a difference one word makes.  How would you rule if you were the judge?

I received an Amended Complaint for Divorce today, but no copy showing changes from the original Complaint.  The attorney who drafted it was probably in a hurry because trial is coming up.  Or maybe, like me, he has an old copy of the Maryland Court Rules on his desk.

In 1995, Section (e) was added to Rule 2-341, the rule that concerns amendment of pleadings.  Entitled “Highlighting of Amendments”, it requires a comparison copy be filed showing deleted text by lining through or enclosing it in brackets, and text that has been added by underlining or bolding it.

Lawyers sometimes call this redlining because the wordprocessor will do it for you in red, and before there were word processors, we probably used a red pen.

The lawyer’s punishment for failing to provide a redline?  I’m working on the Motion to Strike Amended Complaint right now.