Insights

Affidavit problems are big news. However, the focus has been more on verification issues than substance.  With increased attention, other aspects of affidavits will also be subjected to enhanced scrutiny.  Now is therefore a good time to revisit some of the more basic issues associated with preparing an affidavit from the perspective of the lawyer drafting the affidavit as well as considering the affiant’s role in executing an affidavit.

An affidavit is defined by Ohio law as “a written declaration under oath, made without notice to the adverse party.”  RC § 2319.02.  From a lay perspective, it is defined as “a written statement confirmed by oath or affirmation, for use as evidence in court.”  (Italics mine) New Oxford American Dictionary, Second Edition.  In other words, an affidavit needs to be thought of as evidence in a legal proceeding and not as mere procedural formality.  To this end, the affidavit should be prepared and executed with great care both substantively and stylistically.  Simple, declarative sentences that are numbered by paragraph are best and the affidavit should be worded in the “first person.”

In preparing an affidavit, the drafter should assume that the affiant will be deposed regarding the entire contents of the affidavit.  If the affiant is not comfortable testifying in person to every paragraph, that paragraph needs to be re-worded or eliminated.  From the affiant’s perspective, he or she should not execute an affidavit unless he or she clearly understands, and would be comfortable testifying to, every fact.  When providing the proposed affidavit to the prospective affiant, it is useful to specifically remind the affiant, in writing, of these considerations.

Where possible, the affidavit should be organized logically to minimize any basis for dispute.  The following points should be considered:

• There should be a preliminary statement that the Affiant (full name) has been properly sworn under penalty of law.  This reaffirms that the affiant is aware of the seriousness of executing an affidavit and supports the certification language used prior to the notary signature line (known as the “jurat”) that affirms that the affiant was administered the oath prior to executing the affidavit.
   
• A proper foundation must be provided: the affiant’s capacity, qualifications, objective ability, corporate authority (as appropriate) to provide testimony, and first hand “personal” knowledge of the matter. 
   
• The testimony itself should consist of facts, not simply evidence of facts, opinions or unsupported conclusions.
   
• The affiant should avoid making any legal conclusions.
   
• The affidavit must be internally consistent.  This includes accurate dates, times and numerical data.  Exhibits must also be accurate and consistent with the affidavit.
   
• The proper “solemnities” must be observed in executing and notarizing the affidavit.

In today’s legal environment it is extremely important that both the attorney and the client work together to minimize peripheral issues.  Affidavits are especially fertile ground for potential problems and therefore justify an extra effort to “get it right” in order to avoid unnecessary and expensive legal complications.