Someone wants to serve you with a subpoena. So what do you do?

Point of order:  

More and more, it's becoming fashionable for snarky lawyers to wait until the last minute to serve a witness with a subpoena in a legal proceeding.  Some are just disorganized. Some think it's fun for a process server to arrive at a your doorstep at 7:45 PM, just after dinner, and hand you -- the poor erstwhile witness -- a thick sheaf of papers, a $2 witness fee, smile and be on their way.

It's also becoming fashionable for process servers to take a selfie of the whole thing, just in case the witness expresses, well, consternation.  Just so you know.

Here's what to do about it, but first, here's what to look out for.

Process servers can be very creative.  Several years ago I hired a frustrated actor as a part-time process server to find and serve people for me  -- these weren't witnesses, but rather, parties to a suit who were avoiding service.  One of these, a wealthy man who was leery of litigation and experienced at avoiding it, tried to become immune to service by moving into a fancy high-rise with a 24/7 security guard.  This man's lawyer ignored my requests that he accept service on behalf of his client.  It was a pure delay tactic and the clock was running, so I had to get creative. Thus entered Pete Puckett.

Pete loved the gig. He had stage presence and could look and sound imposing. He served the zillionaire target by applying greenish-white face paint and dressing up as Dracula -- it was close to Halloween -- and convincing the security guard on the ground floor of the high-rise that he had a "Drac-o-gram" to be delivered.  Some wouldn't fall for it, but this guy did.  "OK, buddy, that's pretty good, yeah, sure."  Up the elevator, knock on the door. Looking at Pete through the peep hole, the target says, "Whaddaya want?"  Pete, in his best Dracula voice, responds with, "I have a Drac-o-gram for you, sir!"  The guy looks him over, opens the door and -- bingo -- he's served. 

Pete served another mendicant by dressing as a runner in gym shorts and a t-shirt, looking empty-handed and walking up to the guy with the process papers stuck in the back of his shorts.  

The point is that whether you are somebody's CPA, lawyer, friend, business associate, bookkeeper, auto repairman or romantic interest, this could happen to you.  Clearly, there are times when you need to be cautious. If a creative, enterprising lawyer wants to make a point with you on the stand, he may decide that you are "fair game" and try to serve you.  

This sometimes happens the day before a hearing, and you can be told to bring some documents, occasionally a lot of documents -- like all records relating to the acquisition of XZY or all photos of your friend's pet gorilla.  You get the idea.  

Often, however, this tactic is not really as much for "go" as it is "show."  I had it happen recently to a CPA whom a lawyer tried to drag into one of the CPA's client's lawsuits.  The reason?  The lawyer probably thought he might evoke a quick settlement from an opponent who might not be in favor of having his financial secrets on display.  That's assuming that the judge would have let the lawyer get into those secrets, an issue which could have gone either way. The CPA didn't get served, so we'll never know.

So if you think you might get subpoenaed, what do you do?  

First, keep your ear to the ground.  Most of the time you'll know if friends or business associates are knee-deep in litigation.  You might be able to find out if you are thought an important witness, so keep your ear to the rail if you feel that it's possible. 

Second, think like the creative lawyer and the creative process server.  The papers could be delivered by anyone, anywhere, at any time, day or night.  Man or woman. Foe or friend.  So keep your eyes open.

Third, watch your regularly scheduled activities.  If he's got a well-heeled client, the lawyer will be looking for an opportunity in unsuspecting places.  Be careful at the front door, the garage, the parking lot, the lobby of your building.  Anywhere that your presence can be seen or routinely anticipated.

If you do get served, don't panic.  Sit down and read the papers right away (very important).  Get the gist.  The first couple of pages should be enough.  Find out as much what the case is, who the lawyer is, what court it is in, when it is, and as much as you can about why they want you.  Then contact the lawyer on your side (or your client's side) of the case.  If you aren't sure what to do or who to call, find an experienced lawyer to help you. It makes sense to have him or her go with you to the courthouse if it's a matter of importance.  Find a lawyer you can feel comfortable with in a situation like this. If you have an old friend from school or a lawyer you worked with in the past, start there.  They probably won't charge you to find out the basics and steer you in the right direction.

Getting served isn't the end of the thing.  Even after you are served there are a lot of things that a good lawyer can do that might spring you from the trap. These include defusing the situation entirely by calling the other side and asking for an explanation.  It may be that having you served was pure guesswork, i.e., you don't know what they think you know. That's a conversation a lawyer may be able to have with the other side.  Maybe you can set up a telephone interview instead. The other side might also accept an affidavit instead of live testimony.  If you have planned a vacation or an airline ticket, a lawyer may be able to get the subpoena quashed.  Sometimes all that needs to be said is, "Judge, this is a fishing expedition. This man doesn't know anything."

If you do wind up on the witness stand, tell the truth, and let the chips fall where they may.  But that's a whole other enchilada.