drafting effective and admissible declarations
TRANSCRIPT
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 ([email protected]) 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