Divorce Attorney Christopher Pearsall on Family Court Subpoenas
Monday, April 14, 2008
Presumably a subpoena holds just as much power in the Rhode Island Family Court as it does in the Rhode Island Superior Court. However after eight (8) years in practice I have learned that there are differences in the power of a subpoena in the Family Court system.
First, however, let me be clear that the difference in the amount of power a subpoena has or may appear to have in any given legal proceeding has nothing to do with the Rhode Island General Laws or the Rhode Island Procedural rules for Superior Court or Domestic Relations matters.
That being said, the power of the subpoena is diminished because of the weight it is given in each of these forums.
In the Rhode Island Superior Court the superior court judges appear to give more weight and seriousness to subpoenas than those judges in the Rhode Island Family Court System. By and large the vast majority of subpoenas that I have seen issued in the Rhode Island Superior Court were taken seriously and enforced by the judge presiding over the case.
In Rhode Island Family Court cases, however, subpoenas and subpoenas duces tecum are treated lightly and have readily become the targets of Motions to Quash, despite the fact that the information requested is reasonable, relevant and even necessary to the case of the issuer.
What litigants should perhaps be most aware of is that the Family Court Justice may take little or no action against a party who has been subpoenaed to court to bring documents, particularly banks, financial establishments, and professionals who may be considered experts.
The moral of this article is that the subpoena is often seen by clients as a "sure thing" to get the information they need to prove their case. In Family Court it most certainly is NOT a sure thing. Keep this in mind if your own attorney is stonewalled either by the court or the opposing counsel. Even though there are procedural and statutory provisions governing subpoenas and their consequences, your attorney is limited to being your advocate. Once your attorney advocates for your position regarding the subpoena issued on your behalf, he or she thereafter may remain powerless.
In the end, a subpoena's enforcement falls upon the justice who sits upon the bench. If the Justice fails or refuses to enforce the subpoena, your attorney is powerless to do anything further other than to protect your interests for appeal.
Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI 02910
Phone: (401) 354-2369
Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.
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