Be careful what your client vouches for

Most attorneys know that their clients’ own affidavit(s) can be used against them at trial as an admission of a party opponent.  SCRE 801(d)(2)(A).  However, how many attorneys realize that any affidavit submitted on their clients’ behalf to support a motion can also be used against them at trial?

That is because SCRE 801(d)(2)(B) makes part of that same evidentiary rule a hearsay exception for “a statement of which the party has manifested an adoption or belief in its truth.”  It would be hard to argue that any affidavit offered by a party in support of that party’s position on a motion was not a statement in which that party “manifested an adoption or belief in its truth.”  Not only is the whole purpose of offering supporting affidavits to adopt those statements as part of one’s argument but one implicitly vouches for the truth of supporting affidavits when one provides them to the court.

Thus, it is not only the opposing party’s affidavit which can be used against that party as an admission, it is any affidavit that party provided the court at any previous hearing.  There are some attorneys who will allow their clients and witnesses to allege anything in family court temporary hearing affidavits, with the expectation that few cases proceed to trial and that a victory at the temporary hearing almost insures ultimate victory.  However, providing the court myriad inaccurate or incredible affidavits at such hearings can backfire.   A client’s credibility is not only implicated by his or her own affidavit; it is implicated by any affidavit that client provides the court.

When cross examining an opposing party it is fair game to challenge the credibility of the affidavits that party provided the court.  It is also appropriate to have one’s own client testify regarding the factual inaccuracies in the other party’s supporting affidavits as a method of highlighting that opposing party’s lack of credibility.

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