The perils of witness-drafted affidavits

Having witnesses draft their own affidavits is a time and money saving method of preparing for family court hearings.  Further having witnesses rather than the attorney draft such affidavits prevents the affidavits from all having the same voice–the attorney’s–which often makes for more engaging reading.

However there are a few potential pitfalls in having witnesses draft their own affidavits without having them thoroughly reviewed by the attorney who will be submitting them before the witness executes them.  Recently I was able to get the opposing party’s witness affidavits excluded for their deficiencies.

The most common deficiency in such witness-drafted affidavits is the failure to have them properly notarized.  The notary requirement for affidavits is not just to ensure that a notary has witnessed the signature; it also ensures that the witness is aware that he or she is providing sworn testimony.  Thus as part of the notary signature area there needs to appear the language, “Sworn and Subscribed before me.”  Absent this language, one does not have a true affidavit.  Some judges will exclude a notary-witnessed statement that fails to include this language.

Another typical deficiency regarding witness-drafted affidavits is that they tend to be vague on journalistic details–when, what, where, how, why–but rife with opinion.  Often the statements fail to explain how the witness has the knowledge to state what he or she is alleging.  An affidavit needs to be based on personal knowledge but untutored witnesses often state things they have heard from other folks as “facts” without explaining the basis of their knowledge. While statements of an opposing party are admissible as an exception to the hearsay rule, an affidavit that does not explain this is the basis for the witness’ knowledge may get excluded.  Affidavits expressing opinions without providing significant factual basis for that opinion, or those that contain much inadmissible hearsay, may also get excluded.

Finally vague affidavits are subject to exclusion for multiple reasons.  Affidavits used for modification cases need to describe facts that post-date the previous final order.  Affidavits that fail to note when various facts occurred may be excluded if the court cannot determine which facts are relevant to the modification and which facts describe matters that pre-date the final order.  Affidavits that fail to explain the basis of the witness’ knowledge are subject to exclusion for lacking personal knowledge.  See SCRE 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”

The best method I have found for preparing witness affidavits is to have the witnesses email me their statements (in my recent experience, almost every witness capable of writing a coherent statement has email access) along with their contact information.  I can then review the statement, make sure it complies with the rules of evidence and the requirement of personal knowledge, and remove what is irrelevant.  I can phone the witness to seek information for adding necessary details or obtaining clarification.  I can then take that revised statement and easily turn it into an affidavit, including a case caption at the top and a formal notary signature section at the bottom.  Every commercial word processing system I know of allows one to print to PDF.  The draft affidavit can then be emailed to the witness for execution (any witness who lacks adobe reader can download it for free at and be mailed or delivered back to me.

In order to ensure I get the information I desire from the witnesses in their affidavits, I typically provide my client a memo which describes what information I am seeking from witnesses in that particular case–tailoring that memo to each case’s unique issues–and tell my client to provide that memo to potential witnesses.  I further direct witnesses to this link on my web site for further information on the affidavit drafting process: How Does One Draft an Affidavit?

By employing these practices, I have remained able to have witnesses put in the significant work of drafting their affidavits while avoiding having my affidavits excluded due to the above concerns.  Further, following these procedures enables me to produce stronger witness affidavits with little investment of time.

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