In the three years since my article Best Practices for Issuing Subpoenas: Depositions of Georgia Residents in Cases Pending Out of State was published, I’ve been helping out-of-state counsel issue, serve, and enforce out-of-state subpoenas. And almost every case teaches me something new. I began this series with Practice Pointer No. 1:  It is Georgia law that applies to service of subpoenas. And cost matters. The series continued with Practice Pointer No. 2: If personally serving the subpoena, use the best process server you can find, and tell them exactly what you need. The series continues below.

3. If the out-of-state counsel only wants documents, plan in advance for how those documents will be used in court.

As stated in the article, at the discovery stage, Georgia law, unlike federal law, only allows a subpoena to issue for a deposition—not for documents alone. O.C.G.A. § 9-11-45 (a)(1)(A). But that subpoena can also command the deponent to produce and permit inspection of “designated books, papers, documents, or tangible things.” O.C.G.A. § 9-11-45(a)(1)(C). So when out-of-state counsel only wants documents, the cover letter to the deponent can state that in lieu of appearing for the deposition, the deponent can produce documents before the deposition date.

But, before sending the cover letter, the out-of-state counsel needs to consider how the documents will be used in court. Do the documents need to be authenticated? Will the documents be admissible over any hearsay objections?

If the out-of-state counsel needs a certification or other form signed by the deponent to have the documents be admissible, that request needs to be a party of the negotiations to avoid appearing for the deposition. I would include the request for certification in the first cover letter, including a form that will satisfy any evidentiary requirements under the foreign state’s law. Georgia law does not require the deponent to certify the documents; therefore, that requirement cannot be sought in a petition to enforce a subpoena in the Georgia court.

But a court can compel a deponent to answer questions. So if the deponent produces the documents without the certification that the out-of-state counsel needs, the deponent should not be released from appearing for the deposition. The evidentiary questions can then be asked at the deposition. And the discovering party will be able to ask the court to compel the deponent to answer questions under O.C.G.A. § 9-11-37(a)(2).

So to avoid the additional expense of having to appear for a deposition, the out-of-state counsel should clarify any evidentiary requirements up front.

If I can help you issue, serve, or enforce an out-of-state subpoena in Georgia, contact me. I am also providing certain out-of-state subpoena services at a flat rate. Call me or you can click on the red Appointment tab to the right to set a time to talk with me.

Related: All posts on out-of-state subpoenas

With two librarians in my family, I think my mom would be proud that I am asking, “What would a librarian do?” in studying ways for cost-effective legal research. In Thinking Like a Librarian: Tips for Better Legal Research, Richard Buckingham, the Electronic Services and Legal Reference Librarian at Suffolk University Law School, offers practicing attorneys ways to improve their legal research.

The first tip—to understand the research assignment—echoes another tip in a Lawyerist post, Outsourcing Series, Part 3: How To Find and Hire A Contract Attorney to “be clear and precise” about the project. Buckingham encourages those who receive an assignment to ask questions, even if the questions seem basic. The researcher should also ask if the assigning attorney has any suggestions for cases or law review articles as a starting point. I have also found that my best results in working with hiring attorneys happen when the attorneys are open to my questions and we talk throughout the project to refine the issues.

I also found it interesting that librarians will start with secondary sources, including annotated statutes, as a starting point for their research. It justifies my fondness for my subscription to Westlaw’s Results Plus, which will pull up relevant secondary sources. Although the articles it pulls up are not always on point, it certainly saves time when I can read an article that summarizes the issues with cites to key cases.

There are other tips in the article—in fact, I am now more likely to call up my old law school library—but even just following these two tips should result in getting to the heart of the issue more efficiently.

If I can help you with legal research or with brief writing, contact me or click on the red Appointment tab at the right to set up a time to talk.

Thanks to Legal Writing Prof Blog for pointing out Buckingham’s article.

In the three years since my article Best Practices for Issuing Subpoenas: Depositions of Georgia Residents in Cases Pending Out of State was published, I’ve been helping out-of-state counsel issue, serve, and enforce out-of-state subpoenas. And almost every case teaches me something new. I began the series with Practice Pointer No. 1:  It is Georgia law that applies to service of subpoenas. And cost matters. The series continues below.

2.  If personally serving the subpoena, use the best process server you can find, and tell them exactly what you need.

Georgia law states that “[a] subpoena may be served by any sheriff, by his deputy, or by any other person not less than 18 years of age.” O.C.G.A. § 24-10-23. But that law sets the minimum requirement.

While you don’t need a “process server” to serve a subpoena, I prefer to use process servers with experience and ones that I can trust to deliver it correctly. I also look for process servers that are members of Georgia Association of Professional Process Servers or National Association of Professional Process Servers.  And I look for process servers that are recommended by colleagues.

If you decide to personally serve your subpoena, remember that, for Georgia state courts, substituted service is not good service of subpoenas. Be sure that the process server you are working with understands that you are serving a subpoena—not a complaint—which must be personally served.

Before you hire the process server, be sure that the process server will execute an affidavit of service for you so that you can enforce the subpoena if necessary. If the process server is helping you issue the subpoena, be sure that he provides you a copy of the issued subpoena with that affidavit of service.

I’ve had a case where I have been asked to enforce a subpoena that was not served properly, and the client incurred additional expense to correct the mistake. So look on GAPPS and NAPPS, ask colleagues for recommendations, and then talk with the process server to fully explain your project. Ensuring technically correct service will give you a subpoena that you can enforce—you may still discuss the scope of the subpoena, but you are better off talking about the substance of the subpoena than the validity.

If I can help you issue, serve, or enforce an out-of-state subpoena in Georgia, contact me. I am also providing certain out-of-state subpoena services at a flat rate. Call me or you can click on the red Appointment tab to the right to set a time to talk with me.

Related:

• Out-of-State Subpoenas: Practice Pointer No. 1
• Can an individual be served with a subpoena by substituted service in state court?
• All posts on out-of-state subpoenas

Now that you are a practicing lawyer and writing briefs for real, how do you improve your writing?

For me, it started with a Bryan Garner seminar. His seminar will give new life to your writing, and you’ll leave wondering how your partners will react when you write your first brief without the long “COMES NOW” paragraph and with the deep issue statement at the beginning.

So you could start with a seminar. And then continue to study his books, particularly The Winning Brief. I also have Garner’s Modern American Usage and A Dictionary of Modern Legal Usage within arm’s reach of my computer.

But there are several other sources where you can learn how to improve your writing:

Blogs

• Wayne Schiess’s legalwriting.net
• Raymond Ward’s the (new) legal writer

Articles

• The Legal Writing Institute’s Legal Writing eJournal
• LWI’s collection of Bar Journal Columns
• Gerald Lebovits’s columns
• Douglas E. Abram’s articles
• Join Scribes—The American Society of Legal Writers. I have dog-eared and highlighted the journals that you receive with membership.

Books

• The Lawyer’s Guide to Writing Well by Tom Goldstein & Jethro K. Lieberman
• Lifting the Fog of Legalese: Essays on Plain Language by Joseph Kimble
• Writing with Style: Conversations on the Art of Writing by John R. Trimble
• More recommendations are posted on the Legal Writing Prof Blog

You don’t have to do this all at once. Start by browsing through the blogs and articles, finding the information that is most relevant to your practice.

And if you are still wondering what your partners or boss will say, read Wayne Schiess’s articles: When Your Boss Wants It the Old Way and What to Do When a Student Says “My Boss Won’t Let Me Write Like That”? But I think that most of your colleagues will appreciate your improved clarity. Let that clarity speak for itself.

In the three years since my article Best Practices for Issuing Subpoenas: Depositions of Georgia Residents in Cases Pending Out of State was published, I’ve continued helping out-of-state counsel issue, serve, and enforce out-of-state subpoenas. And I learn something new and refine this area of my practice with almost every case. I’ll be sharing some of these pointers over the next few weeks.

1. Georgia law applies to service of out-of-state subpoenas in Georgia. And cost matters.

Since writing the article, I’ve become a small business owner. So I am a little more connected to clients who may not want to pay an additional amount of money to personally serve a deponent. I still recommend, as I did in the article, that if the foreign state’s law requires personal service of a subpoena, then the deponent should be personally served in Georgia. But that is a recommendation, not a requirement. Complying with the more restrictive service method prevents one argument—although a rather weak one—against the validity of the subpoena. The other, less costly, methods of service are equally enforceable in Georgia. (The other methods are found in O.C.G.A. § 24-10-23: “registered or certified mail or statutory overnight delivery.”) The Uniform Foreign Depositions Act calls for Georgia procedure to apply:

[W]itnesses may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in proceedings pending in this state.

O.C.G.A. § 24-10-111. I have not found a Georgia case that holds otherwise. I can’t imagine a Georgia judge applying another state’s law in determining whether the subpoena was validly served on the Georgia witness. In fact, an Alabama case has recognized that out-of-state subpoenas are to be served in accordance with the law of the deponent’s home state. In re Nat’l Contract Poultry Growers’ Assoc., 771 So. 2d 466, 469 (Ala. 2000) (also citing other cases).

Of course, there are other reasons to personally serve a subpoena: it imparts the seriousness of the proceeding to the deponent, it will be hard for a deponent to deny service, and it can usually be done quickly. But personal service is not a requirement for the out-of-state subpoena to be enforceable in Georgia.

In working with out-of-state counsel, my goal is to have a subpoena that the deponent will comply with and one that I feel confident about enforcing in a Georgia court. But I recognize that cost can be a factor. So know that I’m flexible. Yes, I will likely recommend personal service of the subpoena, but there are other factors to take into account, and cost is one of them.

If I can help you issue, serve, or enforce an out-of-state subpoena in Georgia, contact me. I am also providing certain out-of-state subpoena services at a flat rate. Let’s talk about it and I can give you a quote.

Related:

• Can an individual be served with a subpoena by substituted service in state court?
• All posts on out-of-state subpoenas

Update:

• Practice Pointer No. 2: If personally serving the subpoena, use the best process server you can find, and tell them exactly what you need.
• Practice Pointer No. 3:  If the out-of-state counsel only wants documents, plan in advance for how those documents will be used in court.

Unlike the patchwork of state rules governing out-of-state discovery, federal rules make it much easier to get documents and testimony outside state lines. When you, as the attorney, need testimony or documents from a witness in a federal judicial district in which you are not admitted, you may need local counsel—an attorney admitted to practice in the district of the “issuing court.” But this local counsel is generally not needed until compliance with the subpoena is in jeopardy.

No local counsel is required to issue or serve federal subpoena, but you need to lay the groundwork for an enforcement action.

As an attorney authorized to practice in the court where the action is pending, you can issue the subpoena. Fed. R. Civ. Proc. 45(a)(3)(B). So, first, caption the form with the correct “issuing court.” (The Administrative Office of the U.S. Courts posts the fillable forms online—see forms AO 088A and AO 088B—to make this step easy.) Rule 45 governs which court can issue the subpoena: for a deposition, it is where the deposition is to be taken; for production of documents or an inspection, it is where the production or inspection is to be made. Pay special attention to where the subpoena can be served under Rule 45(b)(2) and how a subpoena can be quashed under Rule 45(c)(3) to identify the correct “issuing court.”

Next, hire a reputable process server so that you can get a good Proof of Service if needed. Be sure to include any witness and mileage fees required under Rule 45(b)(1).

Finally, as the issuing attorney, don’t forget to serve a notice of the deposition as required by Rule 30(b)(1) or notice of the production of documents as required by Rule 30(b)(2) and Rule 45(b)(1).

All of this will lay the proper groundwork for local counsel to enforce the subpoena.

Local counsel is needed for a contempt action, a motion to compel, or to respond to a motion to quash or modify the subpoena.

When the person is served with the subpoena, there will be different responses, some of which will require the assistance of local counsel to enforce the subpoena.

1. If the person served does nothing, including failing to appear for a deposition, then local counsel could bring a contempt action in the issuing court under Rule 45(e).

2. If the person served provides written objection to producing documents or inspecting a premises under Rule 45(c)(2)(B), then local counsel for the serving party could move the issuing court for an order compelling production or inspection under Rule 45(c)(2)(B)(i).

3. If the person served moves to quash or modify the subpoena under Rule 45(c)(3), then the serving party will need local counsel to respond to that motion.

While not necessary, it may be helpful to contact potential local counsel before the subpoena is served so that you can move quickly should you meet resistance on the subpoena.

If you need assistance in the Northern District of Georgia, which includes the Atlanta area, contact me.

Resources for federal subpoenas:

• Federal subpoena forms
• USPS Zip Code Lookup to identify the correct county
• 28 U.S.C. § 90 to identify the federal district court for the Georgia county
• 28 U.S.C. § 1821 for federal witness and mileage fees
• Georgia Secretary of State’s office to find information on Georgia corporations

Related:

• Subpoena service in federal court: Courts are split, but personal is best
• Not an attorney, but you were served with a Northern District of Georgia subpoena? See my services for Nonparty Subpoenas.

You know the feeling: you’re reading case after case and you find it! The perfect quotation for your brief. You make sure it’s not in the dissent—and then you copy and paste. But to get the best use of that quotation, don’t stop with pasting it in your brief and adding a colon after The court held.

Instead, advocate and put your slant on it—before you present it to your reader. Others have written about the mistake of using a quotation without a proper introduction, calling such an introduction “noncommittal” and “ultramechanical.” If you use a noncommittal and ultramechanical introduction, you risk the reader not reading the quotation or, worse, interpreting it the wrong way.

So take control: offer a preview of the quotation with a substantative introduction. Let the reader know how this quote helps your case. Not only will your reader benefit, but the exercise will require you to better understand the quotation, ensuring that it really is as perfect as you thought.

If you want to study this technique, the books and articles below all discuss the importance of proper introductions for quotations.

• Bryan R. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts 353-56 (2d ed., Oxford U. Press 2003).
  
• Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well 99 (2d ed., U. Cal. Press 2002).
• Gerald Lebovits, You Can Quote Me: Quoting in Legal Writing – Part I, 76 N.Y. St. B.J. 64 (May 2004).
  
• Kenneth R. Oettle, Give a Quotation a Good Introduction, 11 Scribes J. Leg. Writing 137 (2007) (addressing the “noncommittal” introduction).
  
• John R. Trimble, Writing with Style: Conversations on the Art of Writing 138-39 (2d ed., Prentice-Hall, Inc. 2000) (discussing the mistake of the “ultramechanical” lead-in).
  

And if you need a brief writer or editor for your legal writing, contact me.

For Georgia state courts, subpoenas cannot be served using substituted service. But not all federal district courts in Georgia have addressed whether substituted service is valid service under Rule 45. Courts have detailed the split among courts and there are valid arguments for both sides. But, without getting into the debate of whether personal service is an antiquated rule, personally serving subpoenas will result in fewer objections to the technicalities of service. This should result in lower costs and quicker resolution of any dispute over the information sought in a subpoena.

N.D. Ga: personal service required. For subpoenas in the Atlanta area, the district court in the Northern District of Georgia has held that personal service of a subpoena is required under Rule 45. In Klockner Namasco Holdings Corp v. Daily Access.com, Inc., 211 F.R.D. 685 (N.D. Ga. 2002), the district court refused to grant sanctions against a nonparty for failing to appear at deposition when the subpoena was not personally served. The court recognized there is a split in authority, but found that the Eleventh Circuit authority suggests that personal service on the witness is required.

Split within the Eleventh Circuit. On the other hand, another district court in the Eleventh Circuit rejected Klockner Namasco Holdings Corp., finding that substituted service of a subpoena is permitted under Rule 45. In In re Falcon Air Express, Inc., No. 06-11877-BKC-AJC, 2008 WL 2038799 (S.D. Fla. May 8, 2008), the bankruptcy court denied the motion to quash the subpoena, finding that the substituted service of a subpoena can be effective under Rule 45. The district court addressed the split in authority among courts, but rejected “as antiquated the so-called majority position interpreting Rule 45 as requiring personal service, and instead [chose] to adopt the better-reasoned, modern, emerging minority position, which holds that substitute service of a subpoena is effective on a nonparty witness under Rule 45.” And, yet, another Southern District of Florida district court found that it was powerless to enforce nonparty subpoenas that were served by mail because personal service is required. MAC Funding Corp. v. ASAP Graphics, Inc., No. 08-61785-MC, 2009 WL 1564236 (S.D. Fla. June 3, 2009) (quoting 9A Wright & Miller, Federal Practice and Procedure: Civil 3d § 2454 (2008)).

Personal service should decrease costs, but weigh the risks. Given the conflicting authority, know the service rules of the federal district court that you will ask to enforce any subpoena. But if that district court hasn’t addressed the issue or rulings conflict, personally serving the subpoena under Rule 45 will give the nonparty witness you are subpoenaing one less objection–if the witness is inclined to object to this technicality. So weigh the risks and likelihood of any objection against the costs of personal service. But, generally, personally serving the subpoena on the witness will allow you to focus on the merits of the subpoena quicker.

If you have been served with a subpoena, you can hire an attorney to represent you in responding to the subpoena and raise any appropriate objections, including invalid service.

Related: When to hire local counsel for discovery in federal courts outside state lines?