Professional Documents
Culture Documents
The use of affidavits by counsel, ty of the justice system itself. whether they are in compliance
whether submitted by the defense to This article revisits and empha- with the applicable rules and case
substantiate its contention that sum- sizes the procedural and practical law as to form. Practitioners also
mary judgment is warranted or by requirements for the admissibility of should examine opposing counsels
the plaintiff in an effort to show the sworn statements. Supporting or submissions and move to strike any
existence of a material issue for trial, opposing affidavits must be made that do not meet the clear standards
often can be an effective method of on personal knowledge, set out facts set forth for admissible affidavits
presenting information critical to that would be admissible in evi- and sworn statements.
the courts evaluation of the merits dence, and show that the affiant is
of the case. However, in many competent to testify to the matters Technical requirements for a
respects, the formalities of affidavits stated. Fed. R. Civ. P. 56(e)(1). A sworn statement are critical
have fallen by the wayside. Over party who submits evidence in the but often not met
time, as courts have become less pro- form of affidavits must do so in the The mere signing of a statement
cedurally formal, there has been a proper, authenticated form. Even at in the presence of a notary, or a
corresponding erosion of the stan- a preliminary stage of trial, courts notarys placement of an acknowl-
dards governing testamentary evi- should not permit admission of doc- edgment on a statement, does not
dence submitted by practitioners uments that do not strictly comply constitute a sworn statement or affi-
and considered by courts. As stan- with procedural rules. It is impera- davit. In Orsi v. Kirkwood, 999 F.2d
dards for affiant-submitted evidence tive that a partys sworn submission 86, 91 (4th Cir. 1993), the plaintiff
have eroded and fallen by the way- be sufficient in execution and sub- argued that courts should be
side, so has the integrity of the fact- stance, as well as consistent with lenient in accepting documents at
finding process. The importance of prior assertions, to ensure the the summary judgment stage, as
maintaining and enforcing the stan- integrity of the process. Accordingly, long as they are probative, or at
dards established for sworn state- practitioners should reexamine their least evidence of evidence that
ments is as important as the integri- affidavit forms and consider could later be introduced at trial.
January 2010 41
that they can correct or contradict dicts the partys own prior sworn contradict prior sworn state-
prior testimony by way of affidavit statement. All federal circuits and ments; (2) the importance to the
and therein create an issue of fact. most state jurisdictions have adopt- litigation of the fact about
This practice often takes the role of ed the sham affidavit doctrine in which there is a contradiction;
advocate a step too far and can some form. Cain v. Green Tweed & (3) whether the nonmovant had
undermine the integrity of the Co., Inc., 832 A.2d 737, 740 (Del. access to this fact prior to the
process. Where a party submits an 2003) (citing Shelcusky v. Garjulio, previous sworn testimony; (4)
affidavit to the court that contains 172 N.J. 185, 797 A.2d 138 (N.J. the frequency and degree of
information inconsistent with the 2002) (collecting cases)). variation between statements in
partys prior deposition testimony Essentially, this doctrine pro- the previous sworn testimony
or other sworn submission, courts vides that a plaintiff cannot submit and statements made in the
hold that these contradictory affi- an affidavit in which he alleges new later affidavit concerning this
davits should be disregarded as or different facts from those previ- fact; (5) whether the previous
shams or competing affidavits. ously asserted in an attempt to cre- sworn testimony indicates the
See Margo v. Weiss, 213 F.3d 55, 63 ate a material issue for trial. In dis- witness was confused at the
(2nd Cir. 2000); Rohrbough v. Wyeth tinguishing between a sham affi- time; (6) when, in relation to
Labs. Inc., 916 F.2d 970, 976 (4th davit versus one that merely cor- summary judgment, the second
Cir. 1990); Martin v. Merrell Dow rects or clarifies an issue previously affidavit is submitted.
Pharms., Inc., 851 F.2d 703, 705 (3rd addressed by the party, some courts
Cir. 1988). Courts will disregard a have developed the following con- Cothran v. Brown, 357 S.C. 210, 218,
subsequent affidavit as a sham siderations for guidance: 592 S.E.2d 629, 633 (S.C. 2004) (cit-
that is, as not creating an issue of ing Pittman v. Atl. Realty Co., 754
fact for purposes of summary judg- (1) whether an explanation is A.2d 1030, 1042 (Md. 2000)). Where
mentin the event that it contra- offered for the statements that a party submits a competing affi-
The Family Court Affidavit: Uses and Misuses certainly advisable, but one should
also look closely for things that might
By David C. Shea reveal intentional deceit. As notaries
abound in South Carolina, it is not
At the pendente lite stage of while at the same time incorporating unusual for clients to deliver affidavits
domestic proceedings, the affidavit can anything gleaned into any allowed from witnesses already notarized. And,
be a crucial instrument in the determi- oral argument. Therefore, it is possible with high stakes and emotion
nation of the outcome. If it is sufficient to miss defects, especially before involved, opposing parties and even
and properly prepared, the client courts that place no limit on the num- clients cant necessarily be trusted in
might spend the next year or two liv- ber or length of submissions, with this respect. Real-life examples of
ing with a good result in terms of visi- numerous affidavits to review. questionable jurats include affidavits
tation and support while working Practitioners should note that Rule purportedly signed by the same
toward a final hearing. If it is defective 6(d), SCRCP, still applies to other notary but with noticeably different
in substance or admissibility, the client types of motions in family court, and signatures; the back-dated affidavit in
might spend the same time complain- affidavits must be provided with the which a notary signed with a married
ing to your office and scrambling to motion. For those who practice exclu- name instead of the maiden name she
find a change in circumstance that sively domestic law, this rule is often had on the back-date of the affidavit;
might provide sufficient reason to seek overlooked by the movant as well as the notary who purportedly witnessed
a modification of a temporary order, or by the opposition, and a timely objec- multiple affidavits, but all of which
might seek new counsel altogether. tion to last-minute affidavits from the had varying commission expiration
Because Rule 21(c), SCRFC, specif- moving party can be a useful strategy dates; or simply the made-up notary.
ically makes Rule 6(d), SCRCP, inappli- under the right circumstances. Simply the proper selection of affi-
cable to temporary hearings in family Still, the affidavit is the workhorse davits can be an important strategy.
court, affidavits are not filed in of the temporary hearing. A practi- As family court judges often advise,
advance of the hearing, and often- tioners ability to adhere to the rules, affidavits from mothers and fathers of
times the lawyers receive the oppos- know what to present, and know litigants who declare their child is a
ing partys affidavits at the onset of when the opposing affidavits are good parent carry little weight, and it
the hearing and at the same time as defective can make the difference in is not necessary to include affidavits
the presiding judge. Thus, the practi- obtaining a favorable result or in that offer no substance. However,
tioner has little time to review the establishing a record for supersedeas. pointing out to the court that an in-
submissions and must try to quickly Reviewing the jurat (the certification law provided a supporting affidavit or
absorb the substance and provide the at the foot of the affidavit where the pointing out that a party who claims
client the chance to do the same, notary signs) for technical defects is to have tremendous family support
has only affidavits from distant, out- While some hearsay is unavoidable be made primarily from the contents
of-state relatives can be helpful in pre- in witness affidavits obtained by clients of the affidavits attached to the peti-
senting your clients case. and drafted without the assistance of tion. Rule 6(d), SCRCP.
counsel, it is still prudent for the practi- Rule 3.3(d) requires that in an ex
Hearsay can get you in trouble tioner to review all affidavits submitted parte proceeding, a lawyer shall inform
Hearsay in affidavits is an ongoing to the court not only to comply with the tribunal of all material facts known
problem in the family court. In an the advisory opinion, but to ensure to the lawyer that will enable the tri-
Ethics Advisory Opinion that went that the affidavits actually advance the bunal to make an informed decision,
largely unnoticed within the family clients position and to comply with whether or not the facts are adverse.
court bar, S.C. Bar Ethics Adv. Op. #08- the general directives of diligence. It Again, in practice this does not often
14, the question posed by a family can be quite embarrassing to a practi- happen. While volunteering adverse
court practitioner was: tioner when a clients own witness affi- facts may seem unnatural to an advo-
davits conflict with one another and cate, the rules exist for a reason.
May a lawyer representing a client the lawyer did not review them ahead Disclosure of adverse facts means,
in a divorce action file affidavits in of time and realize the problem. for instance, that if your own client
support of ex parte requests or has told you that he or she has the
temporary hearings that include Ex parte means full disclosure same drug problem as the spouse, it is
hearsay or information that is not The advisory opinion also reminds a material fact and should be disclosed
based on the witnesss personal the practitioner of the duties of if that is the basis for the emergency.
knowledge? SCRPC 3.3(d). While it is well settled Or, if there is a police report (which is
that ex parte orders are condemned hearsay in itself) that relates that the
The opinion states that a lawyer by our courts, the exception is when movant was the instigator in a dispute,
may file affidavits that include hearsay they are justified by exigent circum- it should be disclosed. However, a
or information not based on a witnesss stances. Dunnavant v. Dunnavant, 278 skilled attorney can include adverse
personal knowledge in support of ex S. C. 445, 298 S. E. (2d) 442 (1982); facts and still provide support for the
parte requests or temporary hearings, McSwain v. Holmes, 269 S. C. 293, ex parte request by focusing on the
but only so long as it is clearly identi- 237 S. E. (2d) 363 (1977). In the threat, and then providing a supple-
fied as such. Further, the opinion family court, exigent circumstances mental affidavit at the hearing itself
states that if the lawyer knows an affi- most often arise when the physical that might better express points of
davit to contain hearsay that is not safety of a child or spouse is threat- advocacy within the facts.
identified as such, the lawyer has a ened. In ex parte applications for
duty to advise the court of the hearsay. emergency or expedited relief, the David C. Shea is a sole practitioner
In practice, this does not often happen. courts decision must, by necessity, in Columbia.
January 2010 43
Bar News
(continued from page 7)
Jr. to the practice of law subject to
conditions. Classifieds
Court imposed a six-month suspen- Resignations
sion on Michael E. Atwater for By order of October 9 the Court Office Space Available
failing to respond to the Office of accepted the resignation from the OFFICE SHARING ARRANGEMENT: Across
Disciplinary Counsel in the investi- Bar of Susan Barnes. n the street from Richland County Courthouse.
gation of five matters. Conference room, extensive library, Westlaw
available, two furnished offices, breakroom, sec-
By order of October 26 the Attacking Affidavits retary/paralegal. Free parking. Send inquiries to
Court imposed a definite suspension (continued from page 47) sgwin@complexlaw.net.
of nine months on William H.
Jordan of Charleston for miscon- accordance with case law, it is A BIG BEAUTIFUL, FURNISHED LAW
OFFICE IN COLUMBIA; available now. Ideal
duct involving a criminal act. imperative that practitioners take for one or two new attorneys, with room to
By order of November 4 the an aggressive approach in consid- expand. Reception, conference, attorney offices,
Court imposed a 90-day suspension ering the admissibility of oppo- computers, Internet, copier, phone. Even some
supplies. Phone answering available. Four park-
on George A. Harper, retroactive nents submissions and that they ing spaces.1.5 blocks from Richland County
to March 31, based upon his guilty raise their objections while the Courthouse. Flexible leasethree months to one
yearyour choice. Great price. Please call Adele
plea to willful failure to file a state motion is pending. Otherwise, Pope at (803) 779-1870.
income tax return and failure to such right may be forfeited.
pay taxes.
Position Available
By order of November 9 the Conclusion
Court disbarred Oliver W. Given the frequency of parties VETERANS AFFAIRS, COLUMBIA REGION-
Johnson III for misconduct which submissions of affidavits and the AL OFFICE, WILL RECEIVE APPLICATIONS
for the full-time position Rating Veterans Service
involved a pattern of financial mis- seemly increasing informality in Representative (RVSR). As a RVSR, you will serve
conduct, neglect, guilty pleas to tax many courts, it is perhaps not sur- as a specialist and decision maker for disability
claims, evaluate medical evidence to determine
evasion and assault and battery, and prising that practitioners adher- level of disability, and establish entitlement to ben-
failing to pay a court reporter and ence to procedural requirements in efits. J.D. degree. Start salary $46K. E-mail resume
expert witness. the crafting and submission of affi- to resume.vbacms@va.gov.
By order of November 9 the davits has waned. Certain affi-
Court indefinitely suspended davits and sworn statements, Practice for Sale
Kenneth L. Mitchum for miscon- which lack procedural formalities
SOLO LAW PRACTICE FOR SALE IN SPAR-
duct which included failure to keep a or assurances that the affiant TANBURG COUNTY, SOUTH CAROLINA,
client reasonably informed, failure to understood the significance of his serving clients with real estate, probate, personal
diligently pursue a case and attempt- submission or the penalties for injury and business needs. The firm has a large,
well-established client base which is increasing at
ing to provide financial assistance to perjury, should be attacked by the rate of more than 150 new clients per year.
a client in connection with pending opposing counsel in their role as Substantial equipment, furnishings and supplies
to be sold with the practice. Please direct inquiries
or contemplated litigation. client advocates and as officers of to P.O. Box 578, Landrum, SC 29356.
By order of November 9 the the court. Insufficient statements
Court imposed a public reprimand should be excluded by courts. In
on former Probate Court Judge addition, even if technically
Property for Sale or Rent
Rebecca A. Allen (not a Bar mem- sound, there always should be an SALUDA, N.C.: (1) LAKE HOSEALake front
ber) for misconduct involving evaluation of the admissibility of home. Four bedrooms, three baths, big deck, two
fireplaces, many recent upgrades. A-frame
embezzlement of public funds. the affidavit. Finally, an analysis of design. Spectacular view of the lake. $297,000.
whether its contents contradict the (2) LAKE SHEILAThree bedroom, two bath
log home. Stone fireplace, large covered porch,
Reinstatements partys prior statements or submis- open deck, sunroom, private setting. $265,000.
By order of October 6 the Court sions is necessary and any such (3) 1800s FARM HOUSE with four acres of
reinstated Eric P. Kelley of statements should be disregarded. land. Pastures/fields. Private. $68,000. Contact
Arrington Properties at (800) 749-3114 or
Hermitage, TN, to Active status. Practitioners should refine their www.arringtonproperties.com
By order of October 8 the Court affidavit forms and practices to
reinstated Samantha D. Farlow ensure compliance with procedural Services Available
to practice. requirements and should be will-
By order of October 8 the Court ing to take an aggressive approach HOMEOWNERS ASSOCIATION EXPERT
WITNESS: 30+ years experience in community
reinstated Patrick in assessing and attacking oppos- association governance, accounting, budgeting,
Hollingsworth Moore of ing affidavits to ensure the contin- complex amenity structures and property opera-
Columbia to Active status. ued integrity of the court. tions. Contact IPM Corp., AAMC at (866) 978-
3839, ext. 6873 or sdavis@ipm-corp.com or visit
By order of October 20 the Court www.ipmhoa.com.
has reinstated Pete A. Lang of Fort Christopher M. Kelly is a share-
Mill to Inactive member status. holder and Laura G. Simons is an
The advertising deadline for
By order of November 4 the associate with Gallivan, White &
the March issue is January 29.
Court reinstated Vannie Williams Boyd, PA in Greenville.