For my mentees–and everyone else I have ever completely frustrated while trying to edit their affidavit:
Almost any court hearing that does not allow testimony is going to require affidavits [a written statement signed by the witness and attesting to its accuracy before a notary public] so that the court can reach a decision on the motion before it. Drafting a proper affidavit is simply thinking about the best way to convince a judge that one’s position in a factual dispute is the correct one. I often let clients and their witnesses produce the first draft of affidavits. It saves the client money, often provides me knowledge or understanding that a rushed interview of a witness might not generate, and prevents a situation in which all the affidavits sound like the attorney (or paralegal) who drafted them but instead contain much of the witness’ own voice.
The court (correctly) perceives the client as vouching for the affidavits he or she provides the court on his or her behalf. Too often witness affidavits read like something written by someone OD’ing on the Jerry Springer show: vulgar, argumentative, opinionated and one-sided. Such affidavits are sometime less than worthless; they can actually harm a party’s position. In order for an affidavit to be useful it must be four things: 1) credible; 2) knowledgeable; 3) factual; and 4) relevant.
An affidavit must be credible because if the court cannot believe what the witness is saying, then the affidavit has no use. An affidavit must be knowledgeable because if the witness lacks knowledge on the subject upon which the witness is testifying (an affidavit is sworn testimony) then there is no basis to believe the witness’ statement. An affidavit needs to be factual because it is facts that the court needs to consider in reaching a decision (even when a witness is allowed to render an opinion, if the opinion is not based in fact it has very limited use). An affidavit needs to be relevant because if it does not address topics in dispute it cannot help the court resolve the dispute.
A good affidavit should start with a section explaining who the witness is and what about the witness’ background and experience makes that witness credible. The introduction can also explain the witness’ relationship to the parties or the dispute so that the court can understand how that witness was in a position to know what he or she is testifying to.
The next section of the affidavit should deal with the witness’ knowledge of the factual issues in dispute. It is not necessary for each witness’ affidavit to cover every area of factual dispute. If a witness only knows about a few issues in dispute better to have the witness focus on those few issues than have the witness opine on every issue: not only does a narrow affidavit help focus the court’s attention but it also makes the affidavit more credible.
It is important that this section of the affidavit remain focused on facts, not opinion. If the purpose of a witness affidavit is to establish that the mother is the more actively involved parent, it does little good to simply state “mom is the more actively involved parent” as it is likely that dad will present affidavits that state “dad is the more actively involved parent.” Rather, the affidavit should focus on what things mom does that makes her the more actively involved parent. A description of these activities, and a comparison of the activities that dad takes primary responsibility for, is much more powerful than a simple conclusory statement.
While in a custody case, the statement “mom is a wonderful parent” has limited value, it is much more powerful if it comes at the conclusion of a paragraph that describes the things or attributes that make mother so wonderful. Further when factual claims can be substantiated or corroborated by documentary evidence, such documents should be attached to the affidavit as an exhibit with the affidavit describing and explaining the exhibit. For example a statement that mother is the person taking the children to the pediatrician is much more credible if the affidavit contains the pediatric records showing this. If a client’s income is in dispute, attaching the pay record substantiating the income claim provides the court a reason to resolve this dispute in one’s favor.
Further in drafting this section, it is helpful for a witness to be balanced. An affidavit that simply extolls one party and slams the other party is generally less credible than an affidavit that acknowledges the strengths and weaknesses of each party. Further such one-sided affidavits provide cross-examination material for trial when the witness is asked to acknowledge good points about the other party and weak points in one’s own client. When one-sided affidavits are justified, it helps if editorial commentary is kept to a minimum and the affidavit substantiates its claims with documentary evidence.
An affidavit should be relevant by focusing on the issues in factual dispute. If custody is not in dispute, an affidavit focusing on custody issues wastes the court’s time and diverts the court’s attention from the disputed issues. Somewhat more subtle is the crafting of affidavits that focus on the factual disputes within the larger dispute. For example when custody is contested because one parent is allegedly abusive, affidavits should focus and read differently than when custody is contested because one parent is allegedly a substance abuser. In a custody case in which there are allegations that a parent is a substance abuser, affidavits that provide a factual basis to substantiate or dispute this allegation are vital. Affidavits that discuss custody but ignore this issue are suspect.
Finally affidavits that speak glowingly of a party but fail to address or acknowledge that party’s serious weaknesses are simply not credible. Take an example of a parent who lost custody of a child after succumbing to drug addiction and who is now trying to get custody of that child back. Affidavits describing that parent as “a wonderful parent” do not assist the fact finder unless there are also affidavits explaining how this parent has overcome the addiction. A witness who describes such a parent as “wonderful” without even acknowledging the past drug use appears too biased to be credible or too ignorant to be trustworthy.
Part of the craft of drafting a credible affidavit is minimizing typographical and grammatical errors, using appropriate language, and having the affidavit flow in an organized fashion. An affidavit rife with errors in language, spelling, punctuation or diction, or one that moves chaotically through topics or time reflects poorly on the person providing the affidavit and diminishes his or her credibility. After the introductory section explaining biography and the witness’ involvement with the parties or the dispute, an affidavit can be organized by topic or flow chronologically. When organizing an affidavit by topic, bold explanatory headers at the beginning of each topic are helpful.
The first and only task of every affidavit is to convince the judge that the witness has credible, knowledgeable, factual and relevant information. Reminding clients and witnesses of this necessity and providing them a list of relevant topics that their affidavits might cover is the first step in obtaining well crafted affidavits. In editing draft affidavits, counsel should be focused on confirming factual accuracy, insuring balance (when possible) in describing the facts, removing or corroborating incredible statements, limiting conclusory statements (or justifying conclusory statements by providing significant factual detail) and removing melodramatic or irrelevant language.