Trial preparation – propose stipulation that attorneys can issue deposition subpoenas

My law practice is focused on personal injury, wrongful death and commercial trucking law practice. As president of the State Bar of Georgia, I have many occasions to speak to groups, both in and out of my practice area. The following is excerpted from my presentation — “Trial Preparation: 30 tips in 30 Minutes” – at the Georgia Law of Torts seminar at Mercer University Law School in Macon on September 23, 2011.

11. Propose a stipulation that attorneys issue deposition subpoenas.

While federal law authorizes attorneys as officers of the court to issue subpoenas on standard forms, current Georgia law only allows deposition subpoenas issued and signed by counsel if there has been a stipulation of counsel pursuant to OCGA 9-11-45. Otherwise, subpoenas must be obtained from the Clerk. Propose such a stipulation early in the case in order to avoid a mad scramble to get subpoenas from the clerk for depositions or for trial.

Note that the need for such a stipulation will be eliminated on January 1, 2013, the effective date of the new Evidence Code. The new OCGA 24-13-21(d) will provide that “An attorney who is counsel of record in a proceeding may issue and sign a subpoena obtained by electronic or other means from the clerk of court as an officer of a court for any deposition, hearing, or trial held in conjunction with such proceeding.”

  • DEFINITELY great advice for us trial attorneys, and I’m pleased to hear consent will no longer be necessary as of the new year. But I’m concerned about the ambiguity in the language you quoted re: “obtained…from the clerk of court..” Not only is that vague and ambiguous – e.g., is it okay for one to create and use a form that is identical to one obtained from the clerk’s website two years ago, or must the style of the case already be incorporated into the form obtained from the clerk (if so, that would effectively negate the purpose/advantage of the new rule, and if not, then one is really not using a subpoena “obtained…from the clerk”). The new rule should provide that an attorney can utilize and sign/issue a subpoena that is otherwise in compliance with GA law and or that is substantially similar to [and then provide a form example].

    In addition, I likewise recommend that counsel get consent early on to serve all pleadings electronically/via email pursuant to O.G.C.A. 9-11-5(f), which makes life MUCH easier and less expensive for attorneys and their clients – esp. for small firms and solo practitioners like myself, who find copying and mailing tasks unduly burdensome.