Before any attorney worth her salt puts a witness on the stand in a trial or arbitration or even a meditation, they absolutely must know what the witness will say. Now, if the witness is friendly, it’s no problem: you just ask, write down the answers and have it written up as an affidavit. But if the witness is independent or unfriendly, the attorney must get the statements under oath the hard way–that’s when the witness is deposed.

If the independent witness is in your state, you subpoena them to come and testify. Using a subpoena is a must to protect your client. After all, what if something happens and the witness doesn’t show up? So prepare and have served on the witness a Subpoena. Each jurisdiction will have its own form. Use that. Have the subpoena served professionally by a process server. You need to be sure the subpoena is served properly because if it is not served properly you can invalidate the subpoena. If you want to be considerate, you call them, tell them what you are doing and try to coordinate schedules and find a convenient location. In many states there are geographic limits to how far you can compel a witness to travel. You may also, depending on your state’s rules, have to pay the witness a witness fee. Above all, try to be considerate. After all, treating an independent witness inconsiderately will not help your client. Then take the deposition.

But if the independent witness is in another state, the process is much more complicated. If you want to take the deposition of an out-of-state witness, you need permission. Why? Because the courts of your state do not have jurisdiction (power) over the people in another state. So you have to find a “work-around.” Although simple in concept, the solution can be procedurally complicated. First, does your state have some agreement with the state where the witness is located? Virginia, Maryland and D.C. have such an agreement, incorporated into their laws. Check for these. Usually what must happen is that you must obtain a “letter rogatory” from your court asking the other jurisdiction’s court to open a new case and to permit you to issue a subpoena for taking witness depositions. Usually it is not problem but you will have to go through the procedure. Each state has its own procedure so ask someone at the courthouse.