Tuesday, December 11, 2012

What is an "Affidavit" and what is it not?

Motions to the court must be supported by a "relevant signed, sworn and notarized affidavit."  Minnesota Rule of Family Court Procedure 303.03 (a)(1)(ii)  An affidavit is a statement of facts.  It is not supposed to be an argument.  That is for a memorandum of law.  Yet most affidavits that I review in family cases include a lot of:

1.  Irrelevant statements of alleged facts, for example, "Her(his) brother is in prison."

2.  Opinion and argument about what the court should do, for example, "The Court should not give s(he) any ______________ because s(he) hasn't provided any supporting documentation."

3.  Blatant hearsay, such as un-sworn police reports (reporting what somebody told them happened, therefore double hearsay) , un-sworn and un-notarized letters from family and friends, and sometimes even the child of the parties, also full of opinion ("she is a wonderful parent") and argument ("he doesn't deserve to have custody")

4.  Legalese which was put in the "affidavit" by the lawyer even though the client has no idea (most likely) what the legal term or phrase means.  For example, "S(he) has failed to establish prima facie facts which warrant the setting of an evidentiary hearing pursuant to Nice-Peterson..."  Worse yet is where the affidavit says," I am informed by my attorney that the law in this area is as follows..."

5.  Inadmissible discussion about settlement negotiations, basically "I'm being reasonable but my opponent is not."  Sound like Congress? or "We went to mediation but his/her proposals were unreasonable."  Worse yet is where the lawyer attaches to an affidavit a letter with settlement proposals.

In summary, an affidavit is a statement of relevant facts germane to the motion being made to the court.
Fact: "I made the children dinner every day."
Opinion and argument:  "I have been the primary caretaker of the children."

I have seen many affidavits which:
1. State few facts
2.  State lots of argument
3.  Hammer the character of the opponent

These affidavits are very ineffective.  It's like saying "Brady is the best quarterback in the NFL"  without citing any facts or statistics.

See prior postings about a party venting their frustrations by affidavit and the ineffectiveness of such an approach.

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