drafting effective and admissible declarations

Drafting Effective and Admissible Declarations

September 5, 2012

Impact Fund

Program Overview

Different Types of Declarations and their

Purposes

Technical Requirements for Declarations

Content and Voice

Admissibility of Statements and Documents

Attorney-Client and Work Product Concerns

Re-Drafting Exercise

Types of Declarations

Witness

Attorney

Expert

Offer Facts

Authenticate Documents

Authenticate Documents

Meet and Confer Efforts

Offer Opinions

Affidavit v. Declaration The Mystery Solved

Affidavit Signed before Notary Public

Declaration Signed under Penalty of Perjury

Declaration under Penalty of Perjury the same as Affidavit

– 28 U.S.C. § 1746

– C.C.P. § 2015.5

Writing for Your Audience What Do Judges Want

Truthful Testimony

Facts in Declaration and Brief Match

Statements Admissible

Organized and Easy to Read

Properly Captioned with Numbered Paragraphs

Documents Attached and Authenticated Correctly

Technical Requirements

Name and Status

Personal Knowledge and

Competence

Penalty of Perjury Under

State Law

Signature, Date and

Location

The Beginning: Name, Status, Personal Knowledge, Competence

I, Jocelyn Larkin, declare:

1. I am the instructor in this class. I have

personal knowledge of the facts contained in

this declaration. If called as a witness, I am

competent to testify to these facts.

The End: Penalty of Perjury, Signature, Location and Date

I declare under penalty of perjury, under

the laws of the State of California, that the

foregoing is true and correct.

Executed September 5, 2012 in Berkeley,

California.

Jocelyn D. Larkin

Voice and Content

Write as the witness

speaks

Correct grammar if

needed

Avoid conclusion,

speculation, opinion

Tell a story with factual

details

Example No. 1 – The Right Voice

I fully complied with the lease requirements

by providing timely written notification of the

deficiencies in the building.

During the following week, I left three notes

for the landlord, which each said that the

elevator was not working.

Example No. 2 – The Right Voice

The landlord materially breached the lease

when he failed to address my concerns

When the landlord didn’t fix the elevator, I felt

that he wasn’t holding up his end of the

bargain.

Example No. 3 – The Right Voice

He weren’t interested in my problems. He

give me no respectfulness.

When we talked that day, I observed that he

showed no interest in my problems and kept

checking his phone. His attitude was not

respectful.

Example No. 4 – Avoid Risks or Absolutes

I said to the landlord: “You have to fix the

elevator immediately or I’m not paying rent

this Friday.”

I talked to the landlord and told him that I

wouldn’t pay the rent unless the elevator was

fixed.

Example No. 5 – Other Concerns

Everyone knows this is the worst building on

the East Side. The landlord never does

anything and couldn’t care less. I’m sure he

thinks that since some of the tenants are

undocumented, no one will complain.

Example No. 6 - Using Detail

I really deserve to be promoted. I always get good reviews.

Since becoming a manager, I’ve been reviewed each year in April. The evaluations rate employees on a scale of 1 to 5, with 5 being the best score. In each of my reviews, I have gotten 4’s or 5’s in every category. Attached as Exhibits 1, 2, 3 and 4 are true and correct copies of my annual reviews for the past four years as a manager.

Ensuring that the Statement is Admissible: Hearsay Issues

Hearsay: out of court statement offered to prove the truth of the statement

Inadmissible unless subject to exception or offered for another purpose

– Party Admission

– Offered to Show State of Mind, Notice

– Statement is Itself Actionable Conduct (Oral Misrepresentation, Slander)

Hearsay Exercise No. 1

The salesman told me the cell phone would

get reception in my apartment in the canyon.

Yes, offered not for the truth of the statement

(i.e. cell phone got reception). Statement

itself is legally operative conduct (i.e. creates

warranty).

Hearsay Exercise No. 2

I spoke to the EEO Counselor who told me that I did

not need to file a charge of discrimination until my

termination was effective. For this reason, I did not

file a charge within 300 days of my termination

notice.

Yes, offered to show state of mind. State of mind

must be relevant element of claim or defense.

Hearsay Exercise No. 3

The neighbor told me that the elevator did

not work for the entire month of July, when I

was away visiting family.

No, if statement is offered to show that the

elevator was not working in July.

Documents: How to Authenticate

Describe the document (e.g. letter) and dates

Attest that it is a true and correct copy

Attach complete document or describe the portion attached

Attach to declaration and mark with exhibit number

Example: Admissible Document

I sent an e-mail to the landlord explaining

that the elevator was broken. Attached as

Exhibit 1 is a true and correct copy of the e-

mail that I sent to the landlord’s e-mail

address (landlord@aol.com) on November

15, 2009.

Drafting Process

Interview witness; take notes of facts and phrasing

Draft declaration and send for review

Review each line for accuracy and leave blanks if necessary

Avoid tendency to rubber-stamp

Never use cookie cutter declarations

Discoverability and Privilege Concerns

Draft Declaration is Work

Product

Communication and Drafts

Exchanged with Clients are

Attorney- Client Privileged

Communications with Non-

Clients Discoverable

Signed Client and Witness

Statements Discoverable

Getting Declarations Translated

Best practice is to prepare the declaration in Spanish; have the declaration translated into English by translator

Alternative is to prepare English language declaration and have it translated into Spanish for the witness before signing

Re-Drafting Exercise