Make Affidavits and Declarations More Persuasive

Lawyers can minimize the dangers of affidavits and declarations and make them more persuasive by taking the following steps:

• Review every affidavit and declaration with the witness sentence by sentence. Warn of the danger of impeachment.

• Use care with form affidavits. Form affidavits have stock phrases such as "petitioner is not presently involved in any other legal action or proceeding." This may not be true. The witness and the lawyer may miss such a phrase. Unfortunately, the judge and the opposing lawyer may not.

• Do not assume. A respectable doctor or accountant may have a criminal conviction, perhaps even a serious felony conviction. Such clients may be too embarrassed to correct a statement buried in the affidavit that client has never been convicted of a crime.

• Seek corroborating evidence. Although the lawyer must thoroughly interview the client and friendly witnesses, the interview is just a beginning. If a witness tells the lawyer, "I went to the store and bought a new suit," the lawyer should consider looking for receipts, credit cards statements, cancelled checks, and the suit. Not only will such items help persuade a judge, such items will often jar a witness's memory.

• Use affidavits and declarations sparingly. If possible, use other documents to establish facts. Use affidavits or declarations mainly to authenticate and flesh out these other documents. Consider only using an affidavit or declarationto present a material fact when the fact cannot be established any other way.

From Motion Practice and Persuasion
By L. Ronald Jorgensen
ABA Section of Litigation

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