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Can’t Ignore a Subpoena

Q: I completed an appraisal and report for a refinance loan 2 years ago. I was not contacted about it by any party after I uploaded it to the client. But now I have received a subpoena to testify at an upcoming divorce trial, seemingly from the attorney of the husband. My engagement letter with the client (and all my clients) contains this language:

"Client agrees that Appraiser’s assignment shall not include Appraiser’s participation in or preparation for, whether voluntary or pursuant to subpoena, any oral or written discovery or sworn testimony at a judicial proceeding, any arbitration or any administrative proceeding, nor shall Appraiser be required to attend any judicial proceeding, any arbitration or any administrative proceeding relating to this assignment."

What is my best course of action so that I won’t be roped in by all this?

A: Unfortunately, you must comply with this subpoena. A subpoena is an order from the court, and you can’t simply ignore it. The language you quoted is from an agreement with your client. Your client is not the party that served you with the subpoena. An agreement you made with the client cannot be expected to extend to third parties.

You should promptly notify your client about this subpoena. They might want to take some action to bar your testimony, but that seems unlikely. Contacting the attorney that served the subpoena can make this process less difficult for you by giving you some background and discussing expectations. The attorney can probably put you “on call” ...meaning that someone from his office will give you a few hours’ notice before you have to appear in court so you are not waiting for hours. You should also discuss what fees or compensation you might be entitled to receive. Typically, witness fees are low. Many jurisdictions only pay for parking. You should also make sure you call the attorney’s office the day before you are supposed to show up in court just to make sure the case did not settle.

I know this is an inconvenience, but hopefully it won’t take up too much of your time.


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