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Witness Fees and Subpoenas

Published on October 30, 2026

Do you have to pay witness fees when serving a subpoena?

The short answer is yes, witness fees are generally required when serving a subpoena. Failing to handle this correctly can invalidate your service of process, potentially trigger a motion to quash, and delay the timeline of your case.

This article covers civil subpoenas issued by private parties to non-party witnesses. Criminal and government-issued subpoenas follow different rules.

Let’s break down everything paralegals need to know about witness fees and subpoena compliance.

What are witness fees?

Witness fees are statutory allowances that the subpoenaing party must pay individual witnesses who are commanded to appear at a deposition, hearing, or trial. The allowances are meant to compensate individuals for their time, inconvenience, and travel expenses associated with appearing.

They typically consist of a flat fee for daily attendance combined with a mileage allowance that’s calculated based on the distance traveled from the witness's residence or workplace to the designated venue.

Note that witness fees are not the same as an expert’s hourly rate or a records custodian’s copying charges.

How much are witness fees for a subpoena?

(Last updated: October 30, 2026.)

The exact amount that a witness is paid for subpoena depends on whether you’re proceeding in a state or federal court:

State courts: Rules vary widely for different states. While some mirror the federal $40 per day rate, others mandate higher daily amounts, expert witness retainers, or specific hourly rates for custodians of professional records. Always consult local rules before issuing witness payment.
Federal court: Under 28 U.S.C. § 1821, “Per diem and mileage generally; subsistence,” the statutory subpoena witness fee is currently $40 per day, plus mileage reimbursement at the standard General Services Administration mileage rate for privately-owned vehicles.

Note: the per diem and mileage reimbursements are subject to change.

Who pays witness fees and when are they tendered?

The issuing party is responsible for paying the witness fees. In practice, the law firm usually advances them as a case cost that is billed back to the client. (With Proof as your process server, we can advance these fees and bill you; no need to coordinate issuing your own check and shipping it to the server.)

Timing is critical. In many jurisdictions, tendering witness fees needs to happen at the same time the subpoena is served. If your process server hands over the subpoena without the statutory fee for attendance and travel in a jurisdiction where it is required, the service can be considered defective.

Are witness fees required for a subpoena duces tecum?

Whether or not a witness fee must be tendered depends on whether the subpoena commands attendance. Under FRCP 45(b)(1), if a subpoena duces tecum requires the recipient to appear at a deposition or trial, the fee for one day’s attendance and mileage must be tendered at service, unless it’s issued on behalf of the United States. State rules may differ.

State vs. federal witness fee and mileage fees

Understanding the jurisdiction of your case is critical for your process server instructions:

State cases: Each state maintains its own requirements for fees. For instance, California and New York have distinct witness fee schedules and mileage calculations that differ significantly from federal guidelines. Miss the local minimum by even a dollar, and opposing counsel can move to quash. If you're domesticating an out-of-state subpoena, confirm which state's fee schedule applies.
Federal cases: Governed strictly by federal statute, offering uniformity across districts regarding the $40 per diem and mileage formula. Some districts add requirements in their local rules, so check those too.

What happens if witness fees aren't tendered with the subpoena?

If you fail to include the required witness fees, the consequences can disrupt your litigation schedule:

Invalid service: The witness is under no legal obligation to comply. They may decline to appear, and courts generally won't hold them in contempt.
Motions to quash: The witness can file a motion to quash, wasting billable hours and court resources.
Delayed discovery: You will have to re-issue, re-serve, and re-tender correct funds, pushing back depositions and expert timelines.

Streamline your subpoena service and witness fees with Proof

For head paralegals and legal support teams managing high-volume personal injury, plaintiff employment, mass tort, or commercial collections practices, procedural missteps can grind litigation to a halt.

When your firm issues a subpoena commanding an appearance or document production, getting the service right is only half the battle. You also have to meet the statutory requirements regarding financial compensation for the appearance or production.

Managing compliance across multi-state dockets requires precision. At Proof, we help legal professionals ensure every subpoena is served accurately.