Drafting an affidavit is tricky. It’s got to be persuasive but not argumentative. Expressed in the deponent’s voice, yet clear, concise and polished. It must tell a story but omit irrelevant or inadmissible evidence.
How do you stay true to the witness’s evidence while producing a piece of persuasive legal writing? I’ve got a few tips.
Write the way the witness speaks.
There is no doubt it is the task of the lawyer, not the deponent, to draft an affidavit.
But it shouldn’t sound like a lawyer drafted it. If an affidavit reads like it was written by a lawyer and not the affiant, there’s a greater likelihood the judge will discount it.
Does that mean you should simply transcribe the witness’s spoken words? Nope. When people speak, they ramble. They overemphasize. They understate. They grasp for words. They repeat themselves. None of that is appropriate in an affidavit. It’s why no one particularly enjoys reading a discovery transcript.
So while we don’t want a verbatim recording of the witness’s utterances, there are some techniques you can use to make sure it sounds more like the deponent and less like you, a lawyer:
Use the same names the witness uses for people and places. When you interview the witness, take careful note of how they refer to people. They might use a mixture of first and last names. They probably refer to their parents as “mom” and “dad” rather than “mother” and “father”. They probably refer to their employee by their first name. Use their own terminology wherever possible, provided it is respectful.
Avoid legalese. Don’t use “in or around” or “on or about”. “Inter alia” has no place in an affidavit. Nor does “subsequent to” or “hereinafter”.
Choose simpler language. Try to write the way people speak. Instead of “witnessed,” use “saw”. Rather than “advised”, use “said”. People “sign” an agreement rather than “executing it”. “Car” is better than “automobile” and “plane” is better than “aircraft”. People “ask” for things rather than “request” them. On the other hand, if your witness happens to have a particularly formal mode of speaking, by all means, use their preferred terminology and phrasing.
Employ a light touch with defined terms. Some may disagree, but I feel defined terms are absolutely appropriate in an affidavit. People speak in defined terms all the time. They refer to their “first accident” and “second accident” or the “old contract” vs. the “new contract” (minus the air quotes). If you need to use defined terms to distinguish between two or more terms that the reader may mix up, then have at it. Just don’t go too crazy with them. If there is only one house, one injury, one agreement, one meeting, etc., there’s no need to put them in brackets and capitalize them. Just refer to them consistently throughout the affidavit.
Aside from the above tips, the simplest way to ensure the affidavit is written in the witness’s voice is to….
Involve the witness in the drafting process.
This is a big one. The witness should be heavily involved in the drafting process.
Now typically, I love it when I write something for someone’s review and they have no changes. In a role where I receive very little feedback, “no changes” is a small sign I’m doing a good job.
But not when I’m drafting an affidavit. If I draft an affidavit of any length and the witness has zero changes, that doesn’t mean I’ve done well. It means the witness misunderstood the assignment.
Drafting an affidavit is an iterative process. As lawyers, it’s our job to impress that upon the witness. When I first speak with a witness about the affidavit process, I say something to this effect:
I will interview you and then prepare a first draft of your evidence in the form of an affidavit. You will have time to review it and provide your changes and comments. Then I will prepare a second draft for your review. This process will continue until we’ve created a document you are comfortable swearing/affirming. The affidavit must not only be accurate; it must also sound like you. I will encourage you to review not only the information but also the way the information is phrased.
Involving the witness in this way will help to avoid the situation where a witness, confronted on cross with their sworn evidence, says “I didn’t mean it; that’s just something my lawyer wrote.”
Tell a story in a logical sequence
Just as you would strategically plan the order of a direct examination to make it most persuasive, do the same for an affidavit.
Often but not always, this means describing events in chronological order. But if your affidavit provides evidence relating to two or more legal issues, you may want to divide up the affidavit by issue. Within each section, it will still be best to explain the facts in chronological order.
Break it into bite-sized pieces.
As with any piece of legal writing, your reader will absorb the affidavit best if they can digest it in small chunks. That means:
Short paragraphs (aim for 10 lines or less).
Short sentences. Legal writing experts say your average sentence length should be 20 words. I’d keep it shorter for most affidavits.
Headings (yes, headings! even in an affidavit). You may be thinking, but this is the deponent’s direct evidence? People don't give evidence with headings. Well, they do. Just as you might signal a shift during direct examination (“Turning to the night of the accident…”) a heading in an affidavit helps signal to the reader that you are moving on to a new topic. Another advantage of headings? They create more white space on your page, which is pleasing to the reader’s eyes.
I hope this makes it easier to turn out a persuasive affidavit. If you know of a tip I’ve left out, let me know!
