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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.

  • Joe Underwood

    While true, this concern is, of course, mitigated somewhat by the fact that the party’s attorney is often the editor or even the author of most of the affidavits filed with the court by the non-party witnesses. That tends to have a harmonizing effect upon the narrative found in the affidavits, and tends to eliminate the truly crazy allegations that would invite impeachment. (Often the lawyer’s hand is so transparent in the non-party affidavits that the party could almost invoke attorney-client privilege if questioned about them!).

    The worst I ever saw was an affidavit that was written entirely in the 3rd person then signed by the non-party witness. You know, “Personally appeared before me _________ who states: He saw……” It was then signed by the person who had referred to himself in the 3rd person throughout the affidavit.

  • Great blog Greg! I agree with your comments, and I am often surprised that so many attorneys submit affidavits without insuring their client’s and witnesses’ statements are true by requiring verification. For example, I have not seen my children in 3 months and in the same affidavit alleging, I’m the “hands-on” parent who takes kids to almost every appointment. Attorney could easily obtain ALL the children’s doctor and dentist records and possibly, if young enough, daycare sign-in records. Funny how these documents that are accessible to both parents absolutely contradict certain clients’ exagerated, false allegations against spouse and untrue, inflated opinions of his/her parenting skills. Why wouldn’t an attorney help protect their own client from intentionally misleading a judge? The good news is that parties who lie and their attorneys who assist them ruin their own reputations without the other side having to spell it out for the court. The real facts speak for themselves. The problem, though, is that the attorney who is complicit in these tactics hurts their own client in addition to hurting the family, wasting everyone’s time, and ultimately harming the children because emotions and savings are spent.

  • I cannot understand why lawyers submit so many affidavits at temporary hearings. Erin K. Urquhart and I normally submit two affidavits at the temporary hearing, our client’s affidavit and our affidavit in support of attorney’s fees. We try to limit our client’s affidavit to three pages, no more than four. On the rare occasion that we get an affidavit from another person, it is directed at a particular fact and is usually only one paragraph.

    Preparation or our client’s thee page affidavit usually takes a couple of hours. We try to start our affidavits with the most important sentence. To reduce clutter, we omit the introductory sentence “Personally appeared before me….” because the affidavit states in the jurat “Sworn to and subscribed before me.”

    We see very few judges read multiple affidavits, but that may be limited to York County. Our experience is that when our adversary submits multiple affidavits, the only people who read those affidavits and take notes on those affidavits are those who work in our office.

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