There’s a misconception that only witnesses who are reluctant to testify for one’s client should be subpoenaed to trial. Actually, I’m surprised attorneys issue trial subpoenas to hostile witnesses. The belief that one can break a hostile witnesses into telling the truth through a pressing and brilliant cross-examination is largely fiction. I tend to discourage my clients from having me subpoena hostile witnesses.
In contrast, I want to subpoena friendly witnesses to trial as soon as I have trial dates. There are a few reasons for this. Firstly, I may learn the witness is unavailable during those trial dates and my options are then to either depose that witness to preserve testimony or use a different witness to establish the same facts.
Moreover, having a witness under subpoena makes accommodation more likely if that witness becomes unavailable during trial. This sometimes happens when a witness becomes seriously ill or indisposed when trial arrives. The family court has a few options when a witness is unavailable for trial. The judge can postpone trial, which is unlikely unless the witness’ testimony is the bulk of the case. The judge can keep the trial record open and have that witness testify at a later date. The judge can, in theory, have law enforcement detain the witness and have the witness brought to court–unlikely if the witness isn’t appearing due to an emergency or serious medical situation. A judge can simply conclude the trial without that witness being heard from. It is reducing the potential of this last possibility that makes subpoenaing friendly witnesses worthwhile.
There is case law reversing a circuit judge for denying a continuance when a material witness was unavailable to testify. See e.g. Logan v. Gatti, 289 S.C. 546, 548-549, 347 S.E.2d 506, 507-508 (Ct. App. 1986) (denial of two and one-half month continuance was abuse of discretion in medical malpractice action where motion for continuance was based upon the unexpected development of plaintiff’s expert medical witness, a naval officer, being ordered to sea, the expert’s deposition was one for discovery and was not admissible as opinion testimony and expert testimony was crucial on issue as to standards of medical care).
Rule 40(i)(2), SCRCP addresses continuance requests for an unavailable witness. Part of the inquiry the court is to make is whether “there has been due diligence to procure the testimony of the witness.” Proof that the witness was under subpoena establishes due diligence.
While family court judges are unlikely to simply continue trial when a witness is unavailable, in my experience they will always keep the record upon to allow a material witness to testify later if that witness was under subpoena. It typically takes a few minutes to draft a trial subpoena. Often I draft one go-by and have my client draft the remainder based on that go-by, simply changing the witness name and address. Further one can email friendly witnesses a filled-out trial subpoena, ask them to sign for it on page three, and have them email back the signature page. That way one avoids service fees. There is no good reason not to subpoena friendly witnesses.
Rule 40(i)(2): (2) For Absence of Witness. No motion for continuance of trial shall be granted on account of the absence of a witness without the oath of the party, his counsel or agent, to the following effect, to wit: That the testimony of the witness is material to the support of the action or defense of the party moving; that the motion is not intended for delay; but is made solely because the party cannot go safely to trial without such testimony; that there has been due diligence to procure the testimony of the witness or of such other circumstances as will satisfy the court that the motion is not intended for delay. In all such cases where a subpoena has been issued, the original shall be produced, with proof of service, or the reason why not served, endorsed thereon, or attached thereto; or, if lost, the same proof shall be offered with additional proof of the loss of the original subpoena. A party applying for such postponement on account of the absence of a witness shall set forth under oath in addition to the foregoing matters what fact or facts he believes the witness if present would testify to, and the grounds for such belief.
SCRCP 40