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27/11/2018 12:13 PM | Deleted user

by Frank Maconi on 27 Nov 2018

There is a lot of literature on drafting affidavits, but I think it’s worth reflecting on some of the most fundamental points.

Affidavits are very, very important.

Good affidavits can make your case. Bad ones can cause your case to end in disaster.

These days most evidence in chief is given by affidavit – the glaring exception being the criminal jurisdiction, where direct oral (or viva voce) evidence is preferred and still the norm.

Drafting good affidavits is an essential part of all litigation. It is a skill that can be learnt to a certain point.

I don't profess to be an expert on drafting affidavits. I do like to keep in mind a few pointers that I want to share with you.

1. Ask ‘why’. Even before putting pen to paper, you should ask yourself the ‘why’ (in other words what is the purpose) of the affidavit. You might think this is obvious. It’s not. I always ask myself questions along the lines of ‘why do I need this affidavit?’, ‘what am I seeking to prove?’, ‘is there another way to prove the same thing?’ and ‘how will it advance my client’s case?’ Remember, affidavits (even the ones already filed in court) are not evidence, until they are read or until you tender the affidavit through a witness. So always ask ‘why’.

2. Put yourself in the witness’s shoes. If you decide you need an affidavit from a witness, put yourself in their shoes. Use their language and expressions. Don’t be technical or use legalese – no one is impressed, and it may detract from the persuasiveness of what a witness is trying to say. Don’t present arguments – save that for submissions. Do show their account of what happened, how it happened and where it happened. Perhaps, you are better to start with a witness statement before drafting an affidavit. Witness statements have the advantage that you can record everything the witness wants to say and you can use the important points later on for the affidavit.

3. Consider the contents. Generally, a witness is entitled to swear to what they saw, felt, touched or tasted and, in some cases, to what they heard (remember the rule against hearsay and exceptions to the rule). That doesn’t mean a witness should swear to everything under the sun. The contents of an affidavit will vary. Try to draft the affidavit so the words given by your witness support your client’s version of a fact in issue.

4. Remember the rules of evidence. As with all evidence, the rules of evidence apply to affidavits. Remember the three pillars of (1) relevance; (2) admissibility; and (3) weight. Think of each of these when drafting your affidavit i.e. (1) ‘is the statement relevant to a fact in issue?’ (2) ‘is the statement properly admissible or does it breach a rule of evidence?’; (3) ‘how much weight is a court likely to put on the statement?’. 

5. Who is the deponent? It’s important to correctly identify the deponent of an affidavit. This includes drafting their full name, address and occupation. If the witness doesn’t want to disclose their address, it can be care of your office. The first thing the courts will notice is who the person swearing the affidavit is. This anchors the court to the paragraphs that follow and to the general narrative of the hearing. 

6. What about authority? Your first paragraphs should identify the authority of the person swearing the affidavit. Be careful the person swearing actually has authority to do so. Does Joe Blogs, solicitor have authority to swear the affidavit on behalf of client x? Does Ms Smith, Director of company Y, have authority to swear the affidavit on the company’s behalf? You would be surprised how often this issue is overlooked.

7. Be persuasive. Being persuasive means that your client’s case is more convincing than the opponent’s case. Persuasiveness comes from contents, but also from form. Try to be clear, simple and logical when drafting your affidavit. Structure it so one paragraph is used for one fact at a time.

8. Always be truthful. Being persuasive is only half of the story. The reason I have underlined the word truthful, is that you and your witness must always be candid and truthful with the court. Must. Remember your professional duties. But also remember that witnesses who swear affidavits are liable to be cross-examined by the other side. If they are found to have exaggerated (or lied) the result could be disastrous for your case.

9. No opinions, please. Unless the person swearing the affidavit is an expert, or you provide lay opinion evidence, avoid opinions in affidavits. Don’t even use the expression ‘I opine’. Opinions are largely irrelevant and inadmissible.

10. Things to avoid. You should also avoid the following:  

  • Long paragraphs – use short sentences instead.
  • Complicated language – use simple language if you can, unless an expert needs to express something in technical terms.

  • Spelling mistakes, punctuation and grammar – that goes without saying.

  • Submissions – don’t argue, state facts.

  • Conclusions – don’t make conclusions or swear to the ‘ultimate issue’. Courts decide the ultimate issue, not your witness.

  • Self-serving statements (or prior consistent statements) – no one believes them anyway and they are inadmissible.

  • Irrelevant facts.

  • Facts your client can’t 100% swear to.

11. Think of your audience. The consumer of your affidavit is a judge. Make the affidavit easy to read, logical and concise. Be chronological and use subheadings.

12. Complying with directions and timeframes. I think it's important to comply with directions in terms of filing and serving affidavits. It shows you are on top of your case. It also gives the other side a fair opportunity to prepare their own material. If you are short of time, ask for an extension. You may need to have the matter listed for further directions.

A final word.

Remember that both you and the other side can object to an affidavit. This needs to happen before the affidavit is read or tendered through a witness.

When I want to object to affidavits, I ask my solicitor to write to the opposing solicitor and foreshadow that objections will be taken. I also like to prepare a table of objections that I use from the bar table.

When you object to contents in affidavits, effectively you are applying to strike out parts of the affidavit in question. Take the judge through your objections slowly. Don’t rush. It will take time, but it may tip the scales in your client’s favour.

Drafting good affidavits can be a complex task. You can always ask your counsel to settle affidavits before they are sworn.

I hope you find my pointers useful the next time you are drafting an affidavit.

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