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Saturday, March 26, 2005

Personal knowledge in affidavits

This story in today's New York Times doesn't surprise me — and indeed, I wrote a long post last fall with my own musings on affidavit drafting and use — but it ought to make a lot of trial lawyers stop and think (boldface mine):

At the behest of the rail industry, [Texas Department of Transportation railroad section director Darin] Kosmak on about 100 occasions over the last 11 years signed sworn statements about warning signs at railroad crossings, according to court testimony. The affidavits were mostly drafted by the rail industry, which then used them in case after case as a critical defense against claims that unsafe crossings had caused deaths and serious injury, court records show.

But now, the truth of those affidavits is being called into question. According to his court testimony, Mr. Kosmak recently admitted that his sworn statements misrepresented — unintentionally, he says — what he knew about those crossings....

The railroads sought Mr. Kosmak's affidavits to help prove that federal money was spent by the state on railroad warning signs, called crossbucks. Courts have held that if federal money was used, accident victims are pre-empted from making claims under state law that inadequate warning signs made the crossing unsafe....

[In the affidavits, Mr. Kosmak had] said he based his assertion [that federal funds had been used] on either "personal knowledge" or records of a federal program that operated for [1977-1981].

But last October, Mr. Kosmak admitted that he had no proof that those federal funds were used at any Texas rail crossing.

"We don't have specific records that exist any longer of any specific location," Mr. Kosmak said in an interview.

When the program began in 1977, Mr. Kosmak said, he was a teenager in high school.

"Obviously," he added, "I was not working at Txdot when some of the stuff included in my affidavit was actually performed." He said he had not understood the legal definition of personal knowledge. "It could be characterized as an honest mistake or a layman's mistake," Mr. Kosmak said. "It wasn't anything deliberate on my part."

Mr. Kosmak acknowledged that the affidavits implied that every one of Union Pacific's crossings had received federal money....

Thus, Mr. Kosmak neither had genuine personal knowledge — based on events that he'd seen with his own eyes, heard with his own ears, and participated in — about the funding. Neither did he have indirect knowledge that he was repeating and summarizing from documents (TxDOT records) that would themselves have been self-authenticating and admissible under the "official records" exception to the hearsay rule. He was swearing to something — but he literally couldn't have known what he was talking about, meaning that he was merely guessing (or worse).

There are, of course, long-standing requirements of evidentiary law, common throughout the United States in both state and federal courts, which require that affidavits affirmatively demonstrate the basis for the affiant's testimony. But in actual practice, many — perhaps even most — of the affidavits I read fail to lay the proper predicates for the affidavit testimony to be admissible. And this is particularly true of affidavits frequently given by lawyers rather than the actual witnesses in the case — a dangerous and disgusting practice whenever the substance of the facts being related relate to anything other than counsel's own handling of or participation in the litigation. Not two days ago I received an affidavit in which my opposing counsel swore to a long list of facts about her foreign client's lack of contacts with Texas, for example — and as someone who'd represented that company for less than a week, I'm quite confident that she had absolutely no personal knowledge about those contacts or the lack thereof. My impression is that such affidavits and/or unsworn "declarations" by lawyers are even more common in some states than they are in Texas practice.

Sometimes it's a disguised blessing when one of my opponents tenders such an affidavit. When it comes time for the witness to give oral testimony, either in a pretrial deposition or on the witness stand at trial, such affidavits furnish very fertile ground for cross-examination. And indeed, the lawyers who developed the information about Mr. Kosmak's and his sponsoring railroads' affidavit practices are now using that information to paint him, TxDOT, and the railroad defendants as incompetent, untrustworthy, or worse. But quite a few plaintiffs' lawyers who took those affidavits at face value in the past, without challenging or probing into the basis for them, either are or ought to be kicking themselves vigorously for doing so.

Laymen frequently don't, and can't be expected, to understand legal authentication requirements. And thus a routine self-serving declaration like "I have personal knowledge that the facts stated in this affidavit are true" can very often be demonstrated to be false, whether it was or wasn't intentional. What's shocking to me, however, is how many lawyers — whether trial lawyers or otherwise — either don't understand, or simply get incredibly sloppy with, satisfying (or testing their opponents' satisfaction of) these requirements.

The resulting impeachment technique — basically "You claimed under oath in yer affidavit to have personal knowledge, and now you've admitted thatcha didn't, so yer a gol-darned liar, ain'tcha?" — is fun and often justly effective. (In all probability, I'll have several occasions to use it in my next two trials.)  But it can be misused, by lawyers or unscrupulous reporters, to imply a perjurious statement when that's not at all accurate, as was the situation last fall when Michael Kranish of the Boston Globe shamelessly tricked Captain George Elliott into apparently "recanting" his original affidavit about John Kerry's medals based on sloppily draftsmanship by whatever lawyer wrote that original affidavit.

In many foreign jurisdictions, they still put wax or metallic paper seals and dangling ribbons to dress up affidavit testimony. It looks official, therefore it must be true, right? In most American practice now, those frills have been replaced with a simple inkstamp from a notary public, who almost never will have actually sworn the affiant to tell the truth. The support staff in my own office always laugh at me on those occasions when I'm obliged to submit an affidavit or verification (e.g., that photocopies of deposition testimony excerpts and/or exhibits attached to a summary judgment motion are true copies of what is in the official version created by the court reporter) because I routinely — prompted or (almost always) not — raise my right hand and solemnly say, "I do so swear" just before I sign my name for them to notarize.

Friends and neighbors, it's worth the three seconds that takes. And fellow lawyers, don't blow off, or trivialize, or get sloppy with, the language in the affidavits you draft or review when it comes to the evidentiary predicates for the affiant's personal knowledge. Not just crusty old trial lawyers take sworn oaths seriously — juries do too, and should!

Posted by Beldar at 05:33 PM in Law (2006 & earlier), Trial Lawyer War Stories | Permalink

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Comments

(1) Ron made the following comment | Mar 27, 2005 3:22:04 AM | Permalink

Hmmn. I wondered why I'd seen an increase of buzzards at RR crossings.

(2) LazyMF made the following comment | Mar 27, 2005 12:27:11 PM | Permalink

As a lawyer, one affirmation I sign every year is that I have earned continuing legal education (CLE) credit by reading our bar journal and other legal articles. Truth be told, I don't read the bar journal and all of such credit this year are directly attributable to reading this blog.

Should I leave something in your tip jar for CLE fees?

(3) Steven Jens made the following comment | Mar 27, 2005 11:25:19 PM | Permalink

Can I get CLE credit, or do I have to get a law degree, first? I assume that the Volokh Conspiracy is not (yet) a degree-granting institution.

I hadn't realized a notary was supposed to administer an oath. I had thought the notary was just verifying that the signature wasn't forged.

(4) Beldar made the following comment | Mar 28, 2005 1:30:04 AM | Permalink

Mr. Jens, "CLE" is "continuing legal education," so by definition it's post-JD degree.

Many state bars require lawyers to certify that they've had a certain number of CLE hours per year to keep their licenses. Texas, for example, requires that most of those hours be in approved and accredited courses where the Bar has vetted the course materials, presenters, and offerors; some such approved materials are available online, but they generally don't include blogs. However, Texas permits a few hours per year of "self-study" that's outside of the approved curricula, and the definition for that is broad enough to include reading law blogs.

As for what the notary is supposed to be doing, it depends. You're right that at a minimum, a notary is always at least verifying that the signature isn't forged. What else, if anything, the notary's supposed to do depends on what's being signed.

In a typical deed, for example, having the grantor's signature notarized can vastly simplify getting the deed filed "of record" and ward off future challenges as to the authenticity of the grantor's signature. But that notarized signature usually isn't an "affidavit" or even a "verification," but rather an "acknowledgement" — and the form language will thus typically say something like "On this date, John Doe acknowledged before me, the undersigned Notary Public, that he had executed this instrument for the purposes and consideration therein expressed." That is, simply by signing that document that contained that language in front of the notary who'd verified his identity, John Doe was confirming that it was him, and that he was signing it in order to do what the document does (transfer title) for the consideration (payment) recited. There's no testimony involved one way or the other.

Genuine affidavits, by definition, are sworn testimony given outside court, and often offered in lieu of formal testimony in court. For it to be testimonial, a notary or other official authorized by law to administer oaths ought to administer one to the witness.

Traditional and musty old boilerplate language in affidavits might go something like this:

On this day personally appeared before me JOHN DOE, known to me to be the affiant identified in this affidavit, who being first duly sworn by me, did aver and testify upon his oath as follows: ....

Beldar's plain English version of the same thing:

John Doe personally appeared before me, and after being duly sworn, he testified under oath as follows: ....

The witness' signature, and the notary's title and signature (and stamp), and the date then all are included below the recital of John Doe's testimony.

And then there's the "verification," where the witness is still swearing to the truth of something (and should therefore be under oath), but what he's saying is not necessarily all set forth in the form of testimony as if he were giving it from a first-person viewpoint, and instead may often include cross-references to soemthing elsewhere. For example:

John Doe personally appeared before me, and after being duly sworn, he testified under oath that he is counsel of record for Defendant XYZ Corporation; that in that capacity, he has personal knowledge of the factual statements made in paragraph 12-14 of this motion regarding the proceedings in this lawsuit, and that those statements are true and correct; and that the photocopies of deposition excerpts and deposition exhibits attached to this motion are true copies taken from the official court reporter's transcripts of the indicated depositions.

That would be followed, again, by John Doe's signature, plus the notary's name, signature, date, and stamp.

Notary public record books (another commonly neglected procedure, but often required by state statute or implementing regulations, e.g., from each state's Secretary of State, which typically regulate notaries) include blanks for the notary to note the affiant's drivers license number to document that the notary has indeed confirmed that the affiant is who he's claiming to be. Many states, by statute, have developed "short-form" acknowledgements and verifications that may or may not dispense with some of the traditional language. But when I'm drafting something extremely formal — for example, a will or a durable power of attorney — in which there's a higher-than-usual chance of someone challenging the authenticity of a sworn signature, I'll include in my recital language an express statement that the witness/affiant/declarant/testator/whatever has presented his/her drivers license to the notary, along with the number.

"Declarations," by contrast, are out-of-court statements in which the declarant (without benefit of a notary) merely affirms that he's making the statements subject to penalties of perjury, and there are some state and federal statutes that specifically allow one to do that (and could support a perjury conviction) notwithstanding the absence of a notary and a formal oath. I've never seen such "declarations" used in Texas state-court practice, and I don't think they're competent evidence in our state-court system (although they may be, at least for some purposes, in federal courts sitting in Texas and elsewhere).

There are typically also statutory or regulatory or caselaw requirements (or some combination) that a notary be disinterested. Thus, it's a bad practice for a notary to notarize his/her spouse's signature (especially in a community property state), or for a lawyer to notarize his/her own client's signature (especially if there's a contingent fee involved). Non-equity-owning employees of a law firm, though, generally aren't considered to have a conflict in notarizing signatures for clients of that firm, even when there's a contingent fee involved.

I should probably write a formal paper and teach an accredited CLE course on this stuff, huh? That would count toward my own required CLE hours.

(5) ncoic6 made the following comment | Mar 28, 2005 11:42:11 AM | Permalink

Beldar:

What recourse is available in a situation where the court bases its decision solely on an affidavit that states facts known purportedly by "personal knowledge" - but in reality the affiant had no such personal knowledge?

In the above case, did Mr. Kosmak commit perjury in the eyes of the law? Since his affidavit was not truthful? Are all the court decisions now subject to review because of the nature of his affidavit?

ncoic6

(6) LazyMF made the following comment | Mar 28, 2005 9:37:55 PM | Permalink

The only time I have used a declaration in state court was to get the written testimony of a convicted felon. Felons cannot give oaths, and are therefore are unable to make affidavits. The other side did not challenge it.

(7) Joe made the following comment | Mar 28, 2005 11:40:06 PM | Permalink

I have used affidavits extensively with great success to transfer venue and to support MSJs. In most instances, the notary doesn't swear the witness. I know and you know that it is supposed to be done, but proper witness prep before a depo or cross rectifies any deficiencies in this respect.

Your point about exploring the veracity of the affiant's statements should be well taken by young lawyers. Always, always, always, cross the affiant about the foundation for the affidavit in a deposition. If hay can be made, use it at trial. However, crossing on the foundation at trial will bore your jury.

(8) ter0 made the following comment | Mar 29, 2005 9:22:12 AM | Permalink

Off Topic

Beldar, you have probably seen this, but I thought your readers might enjoy this blast from the past -- Beldar: the formative years.

Link.

Photo link.

(9) JL made the following comment | Jun 3, 2005 6:47:26 PM | Permalink

what NY civil cases are on target when a defendant cross-motions and changes its prior affidavit with information gleanded from plaintiff's timely rebuttal of defendant motion to dismiss?

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