Affidavits - Proper Form
Posted: Tue Oct 11, 2016 3:34 pm
I think I've written on this topic before, but I've read something recently that makes me want to give some further help. This deals with the proper form and content of affidavits.
It's a maxim of law that a document is what it does, regardless of what the title of that document might be.
For example, there are two very popular types of the deed instrument used to convey land-- 1) Warranty Deed, and 2) Quit Claim Deed. In a warranty deed, the grantor (person conveying the land) promises that he owns the land, and that it is free from any liens or encumbrances which might prevent him from granting complete ownership to the grantee. His promise makes him liable to refund the grantee's money, if it turns out there is a problem with the conveyance. In a quit claim deed, the grantee makes no such promise. He merely says, "I'm not claiming any interest in this land, and I assume no liability, but if I do have any interest, then it's yours." Big difference, huh? It doesn't matter how much you pay someone-- if you accept a quit claim deed in exchange for your money, you can buy the Brooklyn Bridge for ten million dollars from someone who doesn't own it, but if you only get a quit claim deed, you cannot get your money back.
Deeds usually have a big bold-faced title up at the top which is supposed to tell you what kind of deed it is. It will either say, "Warranty Deed", or "Quit Claim Deed". The warranty deed usually contains a clause in the body of the deed which spells out the warranty, or at least says the grantor "conveys and warrants". The quit claim deed contains no such clause. Here's what I'm getting at: If the grantor uses a warranty deed form, and then in the body of the deed he scratches out the "and warrants" language, then it becomes a quit claim deed, even though it still says "Warranty Deed" in the title at the top.
Affidavits are intended to be transcriptions of first-hand testimony, with regard to facts, and only facts. An affidavit becomes evidence, if it is properly written, and filed according to the rules of evidence relevant to whatever forum in which it is being used.
The weight which is placed on that evidence varies, according to the skill with which it is written (includes form, content, thoroughness and coherency), and the veracity of the affiant (person whose testimony is given). For example, an affidavit made by a convicted drug dealer will be given less weight in most forums than one made by the pastor of a church. An affidavit which does not limit itself to facts, but also makes declarations and/or draws conclusions of law, will be given less weight than one which sticks to the facts.
It's also important to remember there are different kinds of facts. For example, if an affiant writes in his affidavit that on January 1st, 2016, he personally witnessed a man he knows personally to be "John Jones" plunge a knife into another man he knows personally to be "Robert Smith", then that is a proper statement for an affidavit. In contrast, if the affiant claims that John Jones committed a crime, that is not a proper statement, since it draws a conclusion of law, e.g. it's possible that Jones acted in self-defence, and it's up to a jury to decide if the law was violated.
It would also be improper to cite the law in an affidavit, since affidavits are reserved for first-hand knowledge of facts. Laws are properly cited in another type of document called "memorandum of law".
Opinions, allegations, and other claims should be made in other types of documents. Some examples are "declaration", "complaint", "notice". These types of documents can make use of affidavits, and memorandums of law, which can be attached to the former and used as supporting evidence.
If you make an affidavit, but you include declarations or conclusions of law within the body of the document, you have destroyed your affidavit, and it becomes what it is-- a declaration. If you cite laws within your affidavit, it is no longer an affidavit, but a memorandum of law. Documents are what they do. If you mislabel them you run the risk of being deemed incompetent, and your documents will not be given the weight you wish them to bear.
It's a maxim of law that a document is what it does, regardless of what the title of that document might be.
For example, there are two very popular types of the deed instrument used to convey land-- 1) Warranty Deed, and 2) Quit Claim Deed. In a warranty deed, the grantor (person conveying the land) promises that he owns the land, and that it is free from any liens or encumbrances which might prevent him from granting complete ownership to the grantee. His promise makes him liable to refund the grantee's money, if it turns out there is a problem with the conveyance. In a quit claim deed, the grantee makes no such promise. He merely says, "I'm not claiming any interest in this land, and I assume no liability, but if I do have any interest, then it's yours." Big difference, huh? It doesn't matter how much you pay someone-- if you accept a quit claim deed in exchange for your money, you can buy the Brooklyn Bridge for ten million dollars from someone who doesn't own it, but if you only get a quit claim deed, you cannot get your money back.
Deeds usually have a big bold-faced title up at the top which is supposed to tell you what kind of deed it is. It will either say, "Warranty Deed", or "Quit Claim Deed". The warranty deed usually contains a clause in the body of the deed which spells out the warranty, or at least says the grantor "conveys and warrants". The quit claim deed contains no such clause. Here's what I'm getting at: If the grantor uses a warranty deed form, and then in the body of the deed he scratches out the "and warrants" language, then it becomes a quit claim deed, even though it still says "Warranty Deed" in the title at the top.
Affidavits are intended to be transcriptions of first-hand testimony, with regard to facts, and only facts. An affidavit becomes evidence, if it is properly written, and filed according to the rules of evidence relevant to whatever forum in which it is being used.
The weight which is placed on that evidence varies, according to the skill with which it is written (includes form, content, thoroughness and coherency), and the veracity of the affiant (person whose testimony is given). For example, an affidavit made by a convicted drug dealer will be given less weight in most forums than one made by the pastor of a church. An affidavit which does not limit itself to facts, but also makes declarations and/or draws conclusions of law, will be given less weight than one which sticks to the facts.
It's also important to remember there are different kinds of facts. For example, if an affiant writes in his affidavit that on January 1st, 2016, he personally witnessed a man he knows personally to be "John Jones" plunge a knife into another man he knows personally to be "Robert Smith", then that is a proper statement for an affidavit. In contrast, if the affiant claims that John Jones committed a crime, that is not a proper statement, since it draws a conclusion of law, e.g. it's possible that Jones acted in self-defence, and it's up to a jury to decide if the law was violated.
It would also be improper to cite the law in an affidavit, since affidavits are reserved for first-hand knowledge of facts. Laws are properly cited in another type of document called "memorandum of law".
Opinions, allegations, and other claims should be made in other types of documents. Some examples are "declaration", "complaint", "notice". These types of documents can make use of affidavits, and memorandums of law, which can be attached to the former and used as supporting evidence.
If you make an affidavit, but you include declarations or conclusions of law within the body of the document, you have destroyed your affidavit, and it becomes what it is-- a declaration. If you cite laws within your affidavit, it is no longer an affidavit, but a memorandum of law. Documents are what they do. If you mislabel them you run the risk of being deemed incompetent, and your documents will not be given the weight you wish them to bear.