Should I subpoena witnesses in my small claims case against my contractor?

You can force someone to come to court and provide oral evidence concerning your dispute with your contractor -- but do you really want to?

Question

A few months ago, I hired a general contractor to renovate the porch on my suburban home. He did a lousy job. Not only did he use the wrong type of wood, but he installed the staircase incorrectly. He was also a terrible communicator; he was running way behind schedule on the project, but failed to answer my emails or calls.

Now I’m suing him in small claims court for his breach of our agreement. I’m considering sending a subpoena to the wood supplier, who worked with him on the project and provided all of the materials. Should I do this?

Answer

In general terms, a subpoena is a legal document that forces someone to come to court and testify. In many small claims courts, you can issue a subpoena to a non-party (with court approval and usually with an additional small fee). This would force the non-party to come to court and answer questions on the trial date.

When a plaintiff like yourself is considering whether to subpoena a witness, you need to remember that the witness may or may not actually be favorable to your position. First, receiving a subpoena is annoying. It forces the person to miss other work and family obligations, in the middle of the day, and schlep to court.

Second, the witness might not actually see the situation as you do. Third, the witness will not just respond to your questions, but also to questions from the defendant contractor and, possibly, the judge.

In this situation, you would be sending a subpoena to a wood supplier who has worked with the defendant general contractor. It is possible that the supplier has a regular business relationship with the contractor, especially if you live in a small community with relatively few contractors and suppliers. If that were true, the wood contractor would not want to impair his business relationship with the contractor by essentially saying bad things about his performance in court. While he would be under oath and technically should not lie, this does not mean that he will give a totally accurate account of the narrative. He may take the witness stand and agree with your contractor in whole or in part. This would surely damage your own credibility in front of the judge or jury.

Lawyers often say that there’s nothing worse than being surprised at trial. This is especially true with a witness whose loyalties or opinions are uncertain.

Before sending a blind subpoena in the mail, consider meeting with potential witnesses – whether that witness is your next door neighbor who saw your contractor perform, or a subcontractor or supplier who worked with your contractor. In a short meeting, you would likely be able to gauge whether or not the person will support your case.

Finally, remember that you don't necessarily need to subpoena every witness you call. For example, if you know that your neighbor observed your contractor do something to damage your property, and you are close friends, it is not necessary to formally subpoena her attendance if you are confident that she will appear. This will also save you the small cost of the subpoena fee.

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