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Federal (28 U.S.C. § 1821) and state witness fees for subpoenas — tender timing, calculation, documentation, and state-by-state rates.
When a subpoena compels a witness to appear in court, at a deposition, or to produce records, most U.S. jurisdictions require the serving party to tender a statutory witness fee at the time of service. Fee tender is not just a courtesy — in most states it is a prerequisite for valid service on an appearance subpoena, and failure to tender produces a defective service that a witness can challenge on motion to quash. This guide covers how federal and state witness fees work, what amounts are typically required, and the practical workflow for tendering fees at service.
Witnesses are compelled, not volunteers. The statutory witness fee compensates the witness for:
The concept dates back to common-law practice and was codified in the federal system by the Judiciary Act of 1789. Every state has a parallel witness-fee statute. Amounts are modest — witness fees are not designed to compensate for the actual economic cost of missing a day of work — but the tender requirement is a real procedural hurdle.
In federal court, witness fees are set by 28 U.S.C. § 1821:
Federal witness fees are tendered at service for appearance subpoenas. For document-only subpoenas, the federal rules do not require fee tender at service, though reasonable reproduction costs may be charged by the producing party.
State witness fees vary significantly. Some states track the federal rate; others set lower per-diems with separate mileage components. A representative sample of state attendance-fee statutes as of early 2026:
These amounts are illustrative and subject to periodic legislative adjustment. Always confirm the current rate with the applicable court clerk before tendering, especially for states that tie their rates to periodic GSA or administrative updates.
The timing of tender is governed by the applicable court's rules:
A correct fee tender at service requires three elements:
1. The attendance fee — typically one day's attendance for a typical appearance. If the appearance is likely to last more than one day, some practitioners tender for the anticipated duration; others tender one day and supplement if the appearance runs long.
2. Mileage — calculated at the state's statutory rate based on the round-trip distance between the witness's address and the appearance location. Practitioners typically use Google Maps or a similar service to document the round-trip mileage. Some states require one-way calculation, others round-trip — confirm with the clerk before tendering.
3. Common-carrier fare or subsistence (if applicable) — rare in state practice but relevant where the witness must fly or stay overnight.
The tender is typically made in cash or a check payable to the witness. Some process servers carry cash or money orders for routine tenders.
The return of service (or affidavit of service) should record:
If the witness refuses the tender, service is still valid — the server offered the fee and the witness declined. If the server failed to tender, the witness has a clean motion to quash, and the court will typically require re-service.
For subpoenas seeking only document production (and no personal appearance), most jurisdictions do NOT require a witness-fee tender at service. The producing party may charge reasonable costs of reproduction — photocopying, electronic-production fees, certified-copy fees — but these are billed after production, not tendered at service. Large document productions at institutions (hospitals, banks, government agencies) often have published fee schedules.
Tendering the wrong state's rate. An attorney litigating in California who domesticates a subpoena in Ohio must tender the Ohio witness fee, not the California rate. The fee follows the discovery state, not the forum state.
Underestimating mileage. Use the witness's actual residence, not just the subpoena address, and calculate round-trip where the statute calls for round-trip.
Skipping tender on "informal" service. Even where the witness is represented by counsel who has agreed to accept service, most jurisdictions still require the statutory fee tender.
Tendering too late. Offering the fee at the appearance — rather than at service — is grounds to quash in most jurisdictions.
Failing to document tender on the return. If the return doesn't say the fee was tendered, the witness can argue service was defective.
Stale statutory rates. Many state witness-fee statutes have not been updated in decades; others track GSA or administrative rates that update annually. Confirm the current rate before tendering large-volume services.
Hostile witnesses. A witness who refuses to accept the tender may be served without accepting the fee, but the server must clearly offer the fee on the record. Some servers mail the fee by certified mail immediately after refused in-person tender.
Corporate custodian of records. Large institutions often have a records-response fee schedule that is separate from the individual witness-fee tender. For hospitals, the HIPAA fee limits on records reproduction apply.
Expert witnesses. Experts are typically retained rather than subpoenaed, and their fees are governed by separate retention agreements. Where an expert is subpoenaed from outside the litigation, statutory witness fees still apply but are usually supplemented by a separate expert-witness fee arrangement.
Out-of-state attorney witnesses. Where another attorney is subpoenaed to testify about non-privileged matters, attorney-specific privileges (work-product, attorney-client) may apply, but the statutory fee is tendered the same way.
Served 123 LLC handles subpoena service nationwide, including witness-fee calculation, tender at service, and return documentation. When you send us an appearance or deposition subpoena:
For subpoena domestication matters, we coordinate witness-fee tender with filing and service so the entire UIDDA workflow is handled in one engagement. See our Subpoena Domestication service page for details.
For a witness-fee tender or subpoena-service quote, call (800) 321-2377 or email info@served123.com.
For appearance subpoenas (deposition or trial testimony), yes in nearly every jurisdiction. Document-only subpoenas served on non-party business witnesses often do not require tender, but the rule varies by court. When in doubt, tender.
Under 28 U.S.C. § 1821, the federal witness fee is $40 per day of attendance, plus mileage at the current GSA rate (recalculated annually), plus reasonable subsistence for overnight travel.
Yes, most jurisdictions accept a check for the witness fee tendered at service. Cash is also accepted. Credit card and electronic payment are generally not accepted.
The witness fee must cover round-trip mileage or reasonable airfare. A witness living far from the deposition location may be entitled to substantial travel and subsistence costs, which must be tendered upfront.
The witness can move to quash the subpoena for defective service. Most courts will grant the motion unless the fee is tendered promptly after the objection.
Served 123 LLC handles subpoena service nationwide with correct witness-fee tender for federal and every state court. Fees tendered at service, properly documented, and part of the affidavit of service.
