By Daniel J. Schulte
MDA Legal Counsel
Published in the April 2006 issue of the Journal
Question: A patient of mine sustained injuries in a scuffle with a security guard following a concert. Her injuries included damage to her front teeth. I provided restorative treatment for these teeth. The patient has evidently filed a lawsuit against the local civic center hosting the concert and the security company hired by this venue for the event. I received a subpoena issued by the attorney representing the security company, who I have never met or spoken with.
This subpoena directs me to appear "for the purpose of providing testimony" in court next week. I had nothing to do with the incident that resulted in the patient’s injuries. I can only assume that I will be requested to give testimony regarding the extent of the injury to my patient’s front teeth. I do not want to shut down my office for a day so that I can go and testify. Do I have to do this? Will I be compensated for my time and/or my loss of revenue for the day?
Answer: Michigan law requires anyone served with a trial subpoena to appear as a witness and provide testimony. There are harsh penalties for not complying with a trial subpoena. Michigan Court Rule 2.506 states: "The court in which the matter is pending may by order or subpoena command a … witness to appear for the purpose of testifying in open court on a date and time certain and from time to time and day to day thereafter until excused by the court, and to produce notes, records, documents, photographs or other portable tangible things as specified."
This court rule also states that a subpoena signed by an attorney of record in a case or by the clerk of the court in which the matter is pending has the force and effect of an order signed by the judge of that court. In other words, an attorney does not have to seek or obtain court approval before signing and serving a subpoena for trial on a witness.
The court rule also requires that a trial subpoena be served on a witness sufficiently in advance of trial to give the witness reasonable notice of the date and time the witness is to appear. However, the court rule specifies "reasonable notice" means only that it must be served two days before the witness is to appear.
If complying with a trial subpoena is an undue hardship due to the constraints of running your practice, or for other reasons, the court rule requires you to appear in court before the judge explaining the reasons why you should not have to comply with the trial subpoena. For good cause shown, the court may excuse you from testifying.
Your failure to comply with a trial subpoena without having been excused by the court may result in the imposition of harsh penalties. The failure to comply with a trial subpoena will result in you being held in contempt of court. Being in contempt of court may result in you being the subject of a bench arrest warrant.
Unfortunately, Michigan law provides for only nominal fees being paid in consideration for your time in attending and testifying at trial and for mileage incurred traveling to attend the trial. The standard witness fee provided by Michigan law is only $6 per half day. If a witness is employed, the witness may be paid for loss of working time; however, this amount cannot exceed $15 per day. The statutorily prescribed mileage rate is equal to 44.5 cents per mile. There is no court rule or statute in Michigan that would allow you to charge a per-hour fee or that would require you to be reimbursed for lost revenue.