Tuesday, January 13, 2015

Drafting Affidavits

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

Affidavits are useful to lawyers for a number of reasons, but they can be difficult to draft. In this first part of a two-part post on drafting affidavits, I’ll give you some specific tips to draft strong affidavits.

Start with required information
Generally, the first paragraph of an affidavit should include the affiant’s name and a statement that the affiant is over the age of 18 and competent to provide the affidavit.  

1. My name is James Brooks. I am over the age of 18 and competent to give this affidavit.

I also like to include a separate statement that the affiant understands the purpose of the affidavit:

2. I understand that I’m giving this affidavit in support of Bank of America’s motion for summary judgment in the case of Wood v. Bank of America, N.A., No. 13CV8998, pending in the Fulton County Superior Court.

Hopefully this will help you avoid a situation where the affiant (particularly an affiant who isn’t your client) claims he didn’t understand what his affidavit would be used for. This may also help prevent the opposing party (or a third-party) from using the affidavit in a separate proceeding or for a purpose for which the affiant didn’t intend it to be used. 

Add background information
The next paragraph (or paragraphs) should include background information that shows the affiant is qualified to give the affidavit, usually either as a result of having personal knowledge of the information contained in the affidavit or as a result of the affiant’s job duties and responsibilities.  

1. I witnessed the March 27, 2013 automobile accident that forms the basis of this litigation.

1. I have been employed as a commercial underwriter with Bank of America, N.A. since 2008. On behalf of Bank of America, N.A., I reviewed loan application 12-1405987-D and authorized Bank of America. N.A. to issue commercial loan number 12056894, the loan that forms the basis of this litigation, to Mark Wood.  

You may need several paragraphs to provide all necessary background information on the affiant, especially if the affiant is an expert witness. Ideally, the affidavit should be all-inclusive and convince the reader that the affiant is qualified to offer the information contained in the affidavit. For an expert, the necessary background information might include a brief explanation of the expert’s educational background and relevant experience. You could also attach as copy of the expert’s CV and reference it. (I’ll talk more about attaching documents next week).

1. In 1979 I received a PhD in economics from the London School of Economics. Since 1980, I have taught economics courses to undergraduate and graduate students at the University of Chicago. 

2. I am the author of two economics textbooks: The Principles of Economics (Pearson Publishing Co. 2000) and Valuing Lives Through Economics (Prentice Hall 2005).

3. Since 1980, I have served as an economics expert witness in more than 1,000 lawsuits.

Identify documents relied on by the affiant
If the affiant reviewed and relied on any documents in giving the affidavit, identify those documents. You may also consider attaching them. 

1. In preparing this affidavit, I reviewed and relied on the contents of Bank of America N.A.’s underwriting file for commercial loan number 12056894, attached as Exhibit A.

1. To assist me in preparing this affidavit, I reviewed Plaintiff Kyle Tyler’s medical records from Plano Medical Center for the period from January 1, 2014 through January 11, 2014. These records include x-rays and CT scans, nurses’ notes, radiological reports, post-operative reports, and discharge instructions.    

Define terms used in the affidavit, especially terms of art
Include definitions if the affidavit contains industry-specific language or terms the reader might not be familiar with or understand. These shouldn’t necessarily be dictionary definitions but should be written to encompass the affiant’s understanding of the meaning.

1. As a commercial underwriter, one of my responsibilities is entering loan application information into BOA’s Loan Management System, known as LMS. The loan is then run through LMS, which generates a list of “hits” based on the loan information. A “hit” occurs when any information contained in the loan application matches information contained in a prior loan or loan application made with BOA.

2. For example, LMS would generate a “hit” if the applicant had previously applied for a loan with BOA or if BOA had previously issued a loan secured by the same piece of property, because the property.

1. In street parlance, a “snitch” is a police informant or a person who provides information to police in exchange for either avoiding prosecution or receiving a reduced sentence.

Give straightforward, specific statements of the affiant’s knowledge
Like the “short and plain” statements required in complaints, statements made in affidavits should be short and as straightforward as possible. Affidavit statements should also be as specific as necessary to achieve the desired goals of the affiant (or the lawyer). 

1. Just prior to the March 27, 2013 automobile accident, I was standing of the corner of Second and Main Streets.

2. I heard a loud noise to my left, and I turned, I saw a newer-model black Ford Mustang driving southbound on Main Street toward Second Street.

3. When I first saw the Mustang, it was driving at a speed of approximately 60 miles per hour.

4. When the Mustang was approximately 100 feet from the intersection of Main and Second Streets, the driver of the Mustang appeared to lose control of the vehicle, and the vehicle jumped the curb and ran into a large mailbox on the sidewalk.

5. Approximately two or three seconds passed, then I witnessed the driver of the Mustang put the vehicle in reverse, back off the sidewalk and onto Main Street, and continue driving toward Second Street.

These statements are straightforward and easy to read and understand. The reader can visualize exactly what the affiant saw. You should also draft statements of opinion in the same straightforward manner.

1. Based on the mortality tables I used, Debra Jettie would have been expected to live to the age of 78.

1. In my opinion, the accident would not have occurred but for a manufacturing defect in the right, rear wheel of the vehicle.

1. I believe Karen Wheeler is a fit mother capable of caring for her children.

Include the date, signature, and space for notary attestation
Have the affiant sign and date the affidavit in the presence of a notary, if required. Many notaries are uncomfortable notarizing documents not signed in their presence.

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