DRAFTING AFFIDAVITS/STATEMENTS PRACTICAL STRATEGIES
Presenter: Christopher Whitelaw, Barrister
DRAFTING WORKSHOP AGENDA
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Introduction to Affidavits and Witness Statements The Formal Requirements What You Should Do Before you Commence Drafting the Document The Essentials of Skilful Drafting A List of the Big No Nos Some Real Examples to Analyse as a Group The Art of Objections – Making them and Responding to them
INTRODUCTION TO AFFIDAVITS
An affidavit is essentially a record of sworn evidence using a format specified by the Rules of Court or Tribunal to make it admissible in form. An affidavit must be “sworn” by the deponent in front of either a solicitor or a Justice of the Peace. A Witness Statement is simply a signed unsworn record of a witnesses’ proposed evidence. Whether you use an affidavit or a witness statement to record the evidence of a witness will be dictated by the applicable Court Rules or Standard Directions issued by the court or tribunal. In either case, once the witness formally, in the witness box, adopts the contents of the affidavit or witness statement as his or her evidence, and says on oath that it is true and correct, the witness can be charged with perjury if any part of that evidence is later shown to be a deliberate lie.
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The fact that an affidavit or statement is admissible in Form (ie. it complies the Rules as to the structure and arrangement of the information in it) whether or not it will be admitted into evidence by the judge or tribunal member will depend on whether the evidence contained in the document is ruled admissible or not. The Rules of Admissibility of Evidence will vary according to whether or not the strict rules of evidence apply or not. In some tribunals the strict rules of evidence do not apply and the approach taken regarding admissibility is more relaxed and flexible. It is usually a universal rule of admissibility that the evidence be RELEVANT to some aspect of the dispute (an “issue”) that is to be adjudicated by the court or tribunal. The “issues” are usually determined by reference to some formal pleading or application or some statement of issues prepared and filed by the parties to the dispute.
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No one should ever commence drafting an affidavit or statement without first clearly identifying and understanding the central issues of the case or an interlocutory application that is being supported by affidavit evidence. Some interlocutory applications, and even some final hearings are largely decided on the court or tribunal’s assessment of the written evidence. It is never inevitable these days that a deponent of an affidavit or witness statement will be required to attend at the court or tribunal to be cross examined. It is always good practice, when drafting any record of evidence to be tendered, to check the applicable procedural rules to see what it says about the right to cross-examine on that evidence and what pre-conditions, if any, apply. Always check to see if the rules impose any requirement that the deponent must be “available” for cross examination as a pre-condition of the admissibility of that written evidence.
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There is a methodology to follow to construct any affidavit or witness statement. If you follow the methodology the chances are that you will produce a good affidavit or statement that will encounter few problems in being admitted into evidence and which will make a positive impact on the mind of the court or tribunal. If you neglect to follow the methodology the chances are that your affidavit/statement will attract objections and challenges that might lead to its rejection in total or in part and an erosion of its evidentiary impact on the mind of the court or tribunal. The main aim of this workshop to is provide you with the methodology – the tools to draft good affidavits and statements that will achieve their intended purpose – to help persuade the tribunal of fact to view the case in the way you wish it to.
THE FORMAL REQUIREMENTS
The formal requirements for affidavits and their use in State Courts are spelt out in Part 35 of the Uniform Civil Procedure Rules 2005 (UCPR) –
35.1 – Irregularities per se in the document will not invalidate and the court has total discretion over its use; 35.2 – If you wish to cross examine the deponent of an affidavit served on your client you must serve written notice on the other party requiring the attendance of the deponent for cross-examination; 35.3 – Covers “persons who may make an affidavit”; 35.3A – Sets out the requirements for the heading of the affidavit; 35.4 – Set out the requirements for the formatting of the affidavit and requires that each matter covered in it must be in a separate paragraph so that issues are not intertwined and mixed up in one paragraph.
FORMALITIES continued
35.5 – Spells out how any “alternations” to the jurat or in the body of the affidavit are to be dealt with; 35.6 – Explains how annexures and exhibits are to be dealt with in conjunction with an affidavit. THIS IS VERY IMPORTANT AND SHOULD BE CAREFULLY READ AND UNDERSTOOD BEFORE YOU FILE ANY AFFIDAVIT. MANY SOLICITORS BREACH THIS RULE; 35.7 – Deals with affidavits by persons who cannot read (eg. by a blind or illiterate person); 35.7A – Deals with how the legal practitioner who takes an affidavit concerning some matter must identify himself or herself. 35.7B – Each page of an affidavit must be signed; 35.8 – Sets out special requirements concerning affidavits of service; 35.9 – Covers the requirements for the filing of affidavits.
ANCILLARY RULES
Rule 2.1 –
time to time give such directions and make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings;
Directions and Orders – the Court may, at any time and from
Rule 2.3 –
its own case management guidelines, to extensively control a whole range of things involved in case preparation by the parties such as –
Case Management by the Court – This allows the Court, via
. When pleadings should be filed . The filing of statements of issues .The provision of essential particulars and much more.
NEVER COMMENCE PREPARATION OF A CASE UNTIL YOU FIRST FAMILIARISE YOURSELF WITH THE APPLICABLE CASE MANAGEMENT RULES AND DIRECTIONS. THAT IS JUST PLAIN COMMON SENSE.
CHECK LIST – PRE DRAFTING STEPS
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Take full and comprehensive RELEVANT instructions from the client (whether or not the client is the deponent of the affidavit to be drafted); To be able to take relevant instructions from the client you must of course be in a position to identify -\ The relevant parties; The relevant issues; The relevant law applying to those issues; The relevant witnesses; Relevant documents and who is in possesion of them; The relevant court practice and procedure; The relevant jurisdiction to deal with the dispute.
If you commence drafting the affidavit before you have met the above prerequisites then you are heading for trouble.
CHECK LIST PRE-DRAFTING CONTINUED
3. Once you have satisfied the pre-requisites I have mentioned you then take the next key steps –
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You prepare a full, comprehensive CHRONOLOGY of all the key relevant events and the dates of those events in chronological sequence; You then prepare an index of all the relevant documents you have managed to identify as a precursor to preparing a formal TENDER BUNDLE; You then make sure that you cross reference your Chronology and your Tender Bundle; You make sure that you have your client review all this and sign off that he or she is satisfied that the Chronology is correct and accurate and that you have in your possession all relevant documents in his or her possession.
NOW YOU ARE READY TO START DRAFTING THE AFFIDAVIT
THE ESSENTIALS OF SKILFUL DRAFTING
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Have full, comprehensive and accurate instructions before you commence drafting, preferably in a signed proof of evidence. Have a Chronology that has been verified and approved by the client before you start drafting to use as an aide to your drafting so that your affidavit flows in correct chronological order, all relevant events are covered and to ensure accuracy of the facts deposed to. Identify as many relevant documents as you can and make early assessments about the probative value of each document and any problems that might be associated with its admissibility as evidence. Identify relevant witnesses for both parties to the dispute and make some assessment about their probative value and availability to give evidence. Identify the relevant jurisdiction and the applicable court/tribunal practice and procedure and study it. Learn the rules and techniques of good drafting to ensure that each affidavit you draft will bullet proof against most objections to admissibility of the whole affidavit or parts of it. Organise it and present it in a way, format and style that makes it easily readable and understandable.
GOOD DRAFTING HINTS
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Map out a structure for your affidavit before you commence drafting – ie. a skeleton outline, extracted from your instructions and (if deponent is your client) from the chronology; Use your chronology or instructions from the deponent to assist a logical and chronological flow to the affidavit; Remember – whilst you cannot supply or influence the evidence going into the affidavit – you can influence and direct its style, organisation, flow and ITS ADMISSIBILITY. You can certainly ensure that the final effect is Rolls Royce and not a clapped out old Holden. Try to work towards sentence structures and paragraphs that are lean, lucid and as succinct and economical as possible. That makes for easier reading and comprehension by the court/tribunal and that can only assist your client’s case. Avoid overlapping ideas, themes, issues or topics. One paragraph per theme or issue.
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Make sure that the language used SOUNDS LIKE the deponent and not like you. Use his or her words and language but mould it into good sequencing, correct grammar and good flow. Make sure what you include IS RELEVANT EVIDENCE. Don’t allow the witness to take control of this aspect. You are in control of this aspect. Be firm and provide guidelines to the witness as to what are the areas of relevance and if the witness wants to rabbit on down some by way – resist that and bring the witness back on track. Remember that evidence that emanates from any CONVERSTATION (face to face, over phone etc) must be given in the first person as direct speech– ie. He said “…………….” and I replied “……………….” and you cannot insert evidence that is some form of summary of such conversations recalled by the witness or based on his or her personal interpretation of what was said. It is not essential that the witness be asked to recall precisely or exactly word for word what was said and especially if the conversation took place a long time ago. It is quite permissible to say something like “To the best of my recollection Mr. Brown said words to this effect “……………….”.
DRAFTING HINTS continued
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Use Italics for the actual bits of first person (direct speech) conversation to make it stand out in the affidavit. Use indenting to help highlight this part of the evidence and avoid condensing it too much. Use plenty of space in the body of the affidavit so it is easy for the trier of fact to read it and so that it stands out more in his or her mind because you have organised it in a way that helps draw attention to it. Keep a close eye on inserting relevant dates as the evidence unfolds. This is where the chronology or prior instructions comes in handy. Do not leave this open to be cross examined on by your opponent. You want your own evidence to supply the dates whenever and wherever possible. If the witness cannot recall the precise date – then you ask the witness if he or she can recall the month and whether it was early in that month, in the middle or close to the end. So it is quite okay for a witness to say, if he cannot do better, “I remember that my first meeting with Mr. Brown took place in early March 2006 and I met him at his office in the CBD.” Make sure that you always ask your witness to say who else was present at any relevant place or time and get that into the affidavit.
HINTS continued
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Make sure that any relevant documents that you will need to adduce into evidence at a hearing are appropriately covered in the affidavit – either by way of annexure or by exhibit. You need to consider carefully the pre-requites of proof to get the document into evidence and then ensure that whatever evidence is needed from the deponent of the affidavit or statement is included in the affidavit/statement. If you overlook this you may run into problems at the hearing as your opponent is likely to take objections regarding the admissibility of a document until you adduce the required evidence to make it admissible. If you do not have the relevant witness at court to overcome the objection then you will be in difficulty. Remember – what you are trying to adduce via an affidavit or a statement is the foundational evidence to support the cause of action or case or application you bring before the court for your client. Strongly resist the temptation to add in material that on proper analysis is NOT EVIDENCE but rather interpretation, opinion, belief or extraneous stuff that will very likely be objected to as inadmissible on grounds of relevance or form (ie. the form it is in renders it inadmissible because it offends against one or other rule of evidence). No affidavit should be considered finalised and ready to be sworn, filed and served until you have reviewed it with a sharp eye several times with a view to culling out inadmissible material and/or correcting inadmissible material to make it admissible.
THE BIG NO Nos
Do NOT allow the deponent to say whatever he or she wants to say. It is your job to be discriminating and ensure that what goes in is both relevant and admissible in its form. Do NOT allow the deponent to provide COMMENT or INTERPRETATION of the foundational evidence. Do NOT allow the deponent to include expressions of personal BELIEF or personal FEELINGS about something of relevance. Just restrict him or her to THE EVIDENCE (i.e what he/she saw, observed, heard etc) upon which a court or tribunal will eventually determine what it believes or feels about the evidence as a whole. Any evidence that is SPECULATIVE in form will be ruled inadmissible when the strict rules of evidence apply. AVOID and exclude HEARSAY EVIDENCE. Explain the hearsay rule to each witness and be diligent to keep it out. Only exception is if the strict rules of evidence do not apply in the jurisdiction you are operating in – but even there you must keep hearsay to a minimum to avoid the tribunal downgrading the weight it will give to that evidence.
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Definitely DO NOT create the affidavit in your own words and speech style. Overly stilted or legalistic language is very often a dead give away that you have put words in the mouth of the deponent. Be diligent in picking up on this when reviewing the affidavits of the opposing party. Overcome the temptation to try and explain or interpret or quote EVIDENCE that is contained in relevant DOCUMENTS that are annexed to or exhibited with the affidavit or statement. THE DOCUMENT SPEAKS FOR ITSELF and if you quote it in the body of the affidavit is becomes HEARSAY. If you want to annex a document you use this form of words – Annexed
hereto and marked “A” (and then in sequence, “B”, “C” etc) is a true copy of [describe the document] dated [insert date] and then affix the usual annexure note to the annexed document.
If you decide to exhibit a document, rather than annex it, you say “Exhibited hereto and marked CB-1 is [describe the doc] dated [insert date]. You then will need to affix an exhibit front sheet to that document.
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Do NOT fall into the trap of allowing the witness to give his or her evidence as a SUMMARY rather that the actual evidence of what was said, observed, heard etc. That will make it inadmissible in Form. Do NOT include in the affidavit or statement or annex to it or exhibit with it any document or evidence that you know to be PRIVILEGED or CONFIDENTIAL unless or until you have the consent of the other party or a ruling from a court or tribunal that permits you to adduce that evidence. Do NOT overlook court practice rules relating to the filing of affidavits. In some jurisdictions there are restrictions on filing affidavits that have more than a specified number of pages or annexures. If such a restriction applies, or if there are many relevant documents to adduce – it is better to make them EXHIBITS rather than Annexures. You DO NOT file Exhibits in the Court Registry. You serve them on the opposing party and then TENDER them at the right time during the final hearing. DO NOT neglect to SERVE any affidavit or statement that your client wishes to rely on and ensure you service it correctly in accordance with the applicable court or tribunal rules. Otherwise the evidence will not be admissible at the hearing unless you can persuade the court that no prejudice will be caused to the other party.
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Do NOT present the evidence in long winded and disjointed paragraphs. Be concise, precise and to the point. Do NOT allow the witness to specify a precise date or location as part of his or her evidence unless you are satisfied that it is entirely safe to do so. If the witness has some doubt or is a bit vague it is always better to cover that by such words as “To the best of my recollection ………”; “I recall that I met him in the morning but I cannot be sure of the exact time” and so on. Otherwise your witness will unwittingly find himself or herself boxed in during cross examination. In some cases you can rely on evidence USUAL PRACTICE if the witness is someone who has in place certain business practices or protocols for doing certain things – like a doctor giving a set spiel to a patient about a certain type of operation procedure or an accountant who has a set practice about giving certain tax advice to clients. Provided that you are able to PROVE the existence of such a practice then evidence can be given in this form to make it admissible. It is then a question of what weight the court ultimately will give to it. Do NOT leave big evidentiary gaps in your affidavit evidence as the whole purpose of most court practice rules covering the use of affidavits is that evidence by affidavit is supposed to comprehensively adduce the relevant evidence of that witness. Therefore your affidavits must be carefully checked before the hearing to ensure that they cover all that must be proved to win the case. If you discover that there is a gap at the hearing you can apply to the court for leave to adduce further evidence vive voce but this is totally within the discretion of the presiding judge or tribunal member and will only be granted if it is satisfied that it will not cause any prejudice to the other party.
ANALYSING SOME REAL EXAMPLES AND LEARNING THE ART OF OBJECTIONS – TAKING THEM AND RESPONDING TO THEM
This will be done during the workshop and you will be supplied with some supplementary slides covering the key points arising out of each sample affidavit or statement after the workshop. You will be supplied with samples during the workshop but these are not to keep and must be returned as they are taken from real cases and whilst the presenter has tried to ensure that all confidential parts are deleted he has decided that it would be best that all sample documents be returned to him at the end of the workshop.