The perils of witness-drafted affidavits

Posted Friday, June 1st, 2012 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

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.

7 thoughts on The perils of witness-drafted affidavits

  1. ML Ramsdale says:

    Agreed. I NEVER let any affidavit go before the court that one of the attorneys in my office hasn’t edited. You forgot to mention the typos that are often in unediated affidavits too! If you hand up documents with typos, it reflects poorly on you.

  2. Van says:

    Affidavits with english improper grammar is also bad. It kinda makes the affiant look domb.

  3. MJ Goodwin says:

    I love it when the other side presents hand written affidavits. We try to never let that happen.

  4. I wish I could claim that the affidavits I shape never had grammatical or spelling errors….but I can’t.

  5. I do not understand why so many lawyers submit so many affidavits. At almost every temporary hearing I submit two affidavits, my client’s affidavit and my affidavit in support of attorney’s fees.

    Ben Franklin once wrote, I apologize for the length of this letter. I did not have time to write a short one.” We spent a lot of time with clients prepareing their affidavits. We can usually pare it down to three, sometimes four, pages. Judges seem to apprecite our brevity and seem to remember what our client wrote.

    I have heard many family court judges express contempt in court and privately for the bound volumes of affidavits and supporting documents submitted by otherwise competent lawyers. I do not understand why lawyers continue to do it. My ambition, when I have time for some recreational law at my expense rather than my client’s, is to take the deposition of every person who gave an affidavit at the temporary hearing in some case where there were twenty affidavits.

    While the jurat at the bottom is necessary, we no longer use the distracting language, “Mary J. Smith personally appeared before me and first being duly sworn stated under oath.” Why put the reader to sleep with such a dull and unncesssary statement. We like to start with something that will immediately get the judge’s attention such as “I seek custody of litte Johnny and Jane, child support, use of our home and its contents, alimony, and attorney’s fees.” We also try to minimize the adverse party’s fault while emphasizing our client’s basic goodness and decency.

    In the rare cases we use affidavits other than our client’s, we try to limit them to one paragraph and one fact that should be a case changer.

    1. Megan says:

      I’m happy to hear that there are other lawyers out there who try to minimize the amount of paper presented to the court. I can’t say that I’ve ever gotten a client’s affidavit down to 3 pages, but I have submitted a few that were 5 pages. And like you, I don’t provide witness affidavits unless they provide evidence of a specific fact that I expect to be in dispute.

      I also generally try to track the relevant law when writing my affidavits, rather than providing a litany of the other party’s sins.

  6. Jeff Schreiber says:

    Given the limited time with which the judges here have to read through the papers, it is crucial that the thoughts, arguments and perspective of even the most prepared and organized client be shaped and forms in an easily digestable, persuasive manner. While an affidavit should never lose the voice of the client/author–something that I struggle with at times–at the same time it should be organized impeccably.

    Unfortunately, these things take time. However, I find so far that clients are generally understanding when it is explained that taking the time to properly organize their thoughts will allow me to become intimately familiar with every aspect of their story, and it will serve them not just for one particular hearing, but for subsequent hearings down the road.

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