|May 21, 2012|
Previously published by American Bar Association
Several years ago as a new lawyer I found myself surprised by how often affidavits were used in the "real world" practice of law. Coming out of law school, I was under the impression that evidence used in motion practice came from three sources: the parties' written discovery responses; the parties' document production (or documents obtained via third-party subpoena, and the like); or deposition testimony. Not the case, as I soon learned.
In addition to how frequently they were used, I also was surprised at the content of affidavits I encountered. It literally seemed like just about anything was fair game. But thankfully there are limits, such as Ohio's prohibition against sham affidavits that are merely intended to contradict prior sworn deposition testimony and avoid summary judgment. See, e.g., Byrd v. Smith, 110 Ohio St.3d 24, 850 N.E.2d 47, 2006-Ohio-3455.
Then, as my federal practice expanded, I also discovered "declarations." I had some of the same feelings I did when I first encountered affidavits -- surprised at both frequency and content. And the declarations did not even have to be notarized! With my law license in Ohio came a very official-looking notary stamp; that stamp apparently became an official-looking paperweight for purposes of federal court practice! Even so, I have come to greatly appreciate the efficiency of declarations, especially when dealing with clients and witnesses that are out of town, out of state, or even out of the country.
Declarations typically are not an option for most types of motions in civil litigation in Ohio, although they can be used in one form or another by a records custodian to certify the authenticity of documents produced pursuant to subpoena or other formal request. Under Ohio Civil Rule 56(C), declarations clearly are not within the categories of evidence that can be used at the summary judgment phase. See, Ohio Civil Rule 56(C) (limiting such evidence to "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact"). The same is the case for other States, such as Georgia (O.C.G.A. 9-11-56), Nevada (NRCP 56), and Arizona (16 A.R.S. Rules of Civil Procedure, Rules 56 (a)-(e)). Therefore, affidavits may be the only option in your state-court practice, and, of course, affidavits must be notarized.
In litigation, even in the electronic age, the extra hours or even days it can take to have an affidavit notarized and returned can mean a world of difference. In federal court, the availability of declarations under 28 U.S.C. § 1746 alleviates the logistical problems associated with affidavits, because declarations need not be notarized. 28 U.S.C. § 1746 ("Unsworn Declarations Under Penalty of Perjury") provides as follows:
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)".
(2) If executed within the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)".
Thus an unsworn declaration (which also can be referred to as a certificate, verification or statement) is of the same force and effect as a sworn affidavit in federal court. And for purposes of summary judgment motions in federal court, Fed. R. Civ. P. 56 specifically includes declarations as competent evidence to support and oppose such motions. See, Fed. R. Civ. P. 56(c)(4). While the prerequisites for affidavits and declarations under Federal Rule 56(c)(4) are otherwise the same, the efficiencies associated with declarations cannot be understated.
The ultimate answer to the question of "when to sear and when to declare" will depend on your jurisdiction. You may have the benefit of practicing in a state that permits declarations, just as federal courts do. But in Ohio and other states that do not permit unsworn declarations, the answer in clear: your witness should swear in state court, but your witness is free to declare in
federal court (and avoid scouring the office and/or local bank branches for a notary public).