Litigators use declarations and affidavits to present facts to the judge from various types of witnesses. Their use can become routine and sometimes even sloppy. But beware: Declarations are subject to the same objections and scrutiny as testimony at trial. Here’s a checklist to help you carefully draft every declaration and avoid common omissions.
First off, you may be wondering what’s the difference between declarations and affidavits. Declarations are made and signed under penalty of perjury (CCP §2015.5), whereas affidavits are written declarations made under oath and attested to, ordinarily by a notary public (CCP §2003). Because they need not be notarized, litigants almost always use declarations rather than affidavits.
All declarations (or affidavits) used to authenticate evidence should contain the following:
__ 1. A caption that includes (Cal Rules of Ct 3.1110(b), 3.1115)
__ a. The name of the declarant or affiant;
__ b. The title of the motion that it supports, e.g., Declaration of Sam Jones in Support of Plaintiff John Smith’s Motion for Summary Judgment or Summary Adjudication;
__ c. The hearing date, time, and location, and the name of the hearing judge, if ascertainable;
__ d. The nature or title of any attached document other than an exhibit;
__ e. The date the action was filed; and
__ f. The trial date (if set).
__ 2. Facts showing the declarant’s personal knowledge of the evidence (see CCP §437c(d); Evid C §702), e.g., by
__ a. Observation of an event (e.g., “I saw the car run the red light”);
__ b. Presence during a conversation (e.g., “I was present and heard Sue say …”); or
__ c. Receipt of a document (e.g., “I received the letter from defendant on February 2”).
__ 3. Facts showing that declarant is competent to testify to the matters stated in the declaration. See CCP §437c(d); Evid C §§700–701.
__ 4. Facts supporting the motion:
__ a. Admissible evidence, not, e.g., hearsay or opinions; and
__ b. Evidentiary facts, not legal conclusions or ultimate facts.
__ 5. Declarant’s signature under penalty of perjury. CCP §2015.5.
Declarations can be very important in a case. Indeed, a summary judgment motion can be lost based on defects in the affidavits and declarations. By checking off each of these requirements for every declaration you prepare, you won’t be the one who submitted the defective declaration.
For guidance on preparing declarations for a noticed motion, turn to CEB’s California Civil Procedure Before Trial §§12.59-12.81. Also check out CEB’s California Summary Judgment §§5.8-5.31 on preparing declarations in support of or opposition to a summary judgment motion.
Other CEBblog™ posts you may find useful:
- Checklist for Responding to a Noticed Motion
- 7 Tips for Making Supporting Memos More Persuasive
- Take 5 (Steps) Before Moving for Summary Judgment
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