Tuesday, January 20, 2015

Drafting Affidavits II

This is the second of a two-part post on drafting affidavits.

I previously offered some specific tips on drafting strong affidavits, Below are some general tips that you should also keep in mind. 

Stick to straightforward, specific language

Ideally, an affidavit should be self-encompassing. When using an affidavit, especially one in support of a dispositive motion, you want to draft the affidavit as tightly as possible to avoid ambiguity that could defeat your motion. Always keep the purpose of the affidavit in mind, and ensure you use easy-to-understand but specific language that can’t easily be disputed through a counter-affidavit or during live testimony. If you’re using the affidavit to prove or disprove certain elements of a claim, track the language of those elements. For example, if you’re using a doctor’s affidavit to support your contention that an accident caused your client’s injuries, know and track the language used in cases or statutes that address the degree of certainty required in expert opinions:

1. In my opinion, to a reasonable degree of medical probability, Plaintiff’s injuries were the direct result of the March 5, 2014 accident.    

Attach documents the affiant relies on or references in the affidavit
If the affiant relies on documents, photos, or other evidence in providing the affidavit, attach that evidence to the affidavit. This adds credibility and enables the court to easily find (and review for itself) the information the affiant relied on.

Make the language of the affidavit sound like something the drafter would say
Affidavits should be somewhat formal but, at the same time, the language should actually sound like something the affiant would actually say. Affidavits that are too formal give the impression that the writer (the lawyer) is putting words in the affiant’s mouth. Have you ever heard anyone say they were involved in a collision? No—people say “car accident” or “car crash” or something similar. If the affiant is a layman, draft the affidavit using language a layman would use—the affiant will appear more credible. The easiest way to do this is to speak with the affiant, write down some specific terms the affiant uses, then incorporate those into the affidavit.

Review your draft with the affiant
This isn’t strictly a writing recommendation and should go without saying. But I’ve been involved in too many cases where an affiant has been torn apart either in deposition or on the stand after backtracking on statements made in his affidavit. Affidavits—especially those relied on for dispositive motions—are strictly scrutinized by the opposing party and the court. Make sure the affiant is 100 percent comfortable with every word included in the affidavit. Remember—both you and the affiant will have to answer for any misinformation in the affidavit. If the affiant isn’t comfortable with the affidavit, change it.

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