DRAFTING AFFIDAVITSSTATEMENTS PRACTICAL STRATEGIES

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DRAFTING AFFIDAVITS/STATEMENTS PRACTICAL
STRATEGIES

• Presenter Christopher Whitelaw, Barrister

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DRAFTING WORKSHOPAGENDA

• Introduction to Affidavits and Witness Statements
• The Formal Requirements
• What You Should Do Before you Commence Drafting
  the Document
• The Essentials of Skilful Drafting
• A List of the Big No Nos
• Some Real Examples to Analyse as a Group
• The Art of Objections Making them and
  Responding to them

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INTRODUCTION TO AFFIDAVITS

• An affidavit is essentially a record of sworn
  evidence using a format specified by the Rules of
  Court or Tribunal to make it admissible in form.
• An affidavit must be sworn by the deponent in
  front of either a solicitor or a Justice of the
  Peace.
• A Witness Statement is simply a signed unsworn
  record of a witnesses proposed evidence.
• Whether you use an affidavit or a witness
  statement to record the evidence of a witness
  will be dictated by the applicable Court Rules or
  Standard Directions issued by the court or
  tribunal.
• In either case, once the witness formally, in the
  witness box, adopts the contents of the affidavit
  or witness statement as his or her evidence, and
  says on oath that it is true and correct, the
  witness can be charged with perjury if any part
  of that evidence is later shown to be a
  deliberate lie.

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INTRODUCTION continued

• The fact that an affidavit or statement is
  admissible in Form (ie. it complies the Rules as
  to the structure and arrangement of the
  information in it) whether or not it will be
  admitted into evidence by the judge or tribunal
  member will depend on whether the evidence
  contained in the document is ruled admissible or
  not.
• The Rules of Admissibility of Evidence will vary
  according to whether or not the strict rules of
  evidence apply or not. In some tribunals the
  strict rules of evidence do not apply and the
  approach taken regarding admissibility is more
  relaxed and flexible.
• It is usually a universal rule of admissibility
  that the evidence be RELEVANT to some aspect of
  the dispute (an issue) that is to be
  adjudicated by the court or tribunal.
• The issues are usually determined by reference
  to some formal pleading or application or some
  statement of issues prepared and filed by the
  parties to the dispute.

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INTRODUCTION continued

• No one should ever commence drafting an affidavit
  or statement without first clearly identifying
  and understanding the central issues of the case
  or an interlocutory application that is being
  supported by affidavit evidence.
• Some interlocutory applications, and even some
  final hearings are largely decided on the court
  or tribunals assessment of the written evidence.
  It is never inevitable these days that a deponent
  of an affidavit or witness statement will be
  required to attend at the court or tribunal to be
  cross examined.
• It is always good practice, when drafting any
  record of evidence to be tendered, to check the
  applicable procedural rules to see what it says
  about the right to cross-examine on that evidence
  and what pre-conditions, if any, apply. Always
  check to see if the rules impose any requirement
  that the deponent must be available for cross
  examination as a pre-condition of the
  admissibility of that written evidence.

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INTRODUCTION continued

• There is a methodology to follow to construct any
  affidavit or witness statement.
• If you follow the methodology the chances are
  that you will produce a good affidavit or
  statement that will encounter few problems in
  being admitted into evidence and which will make
  a positive impact on the mind of the court or
  tribunal.
• If you neglect to follow the methodology the
  chances are that your affidavit/statement will
  attract objections and challenges that might lead
  to its rejection in total or in part and an
  erosion of its evidentiary impact on the mind of
  the court or tribunal.
• The main aim of this workshop to is provide you
  with the methodology the tools to draft good
  affidavits and statements that will achieve their
  intended purpose to help persuade the tribunal
  of fact to view the case in the way you wish it
  to.

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THE FORMAL REQUIREMENTS

• The formal requirements for affidavits and their
  use in State Courts are spelt out in Part 35 of
  the Uniform Civil Procedure Rules 2005 (UCPR)
• 35.1 Irregularities per se in the document will
  not invalidate and the court has total discretion
  over its use
• 35.2 If you wish to cross examine the deponent
  of an affidavit served on your client you must
  serve written notice on the other party requiring
  the attendance of the deponent for
  cross-examination
• 35.3 Covers persons who may make an
  affidavit
• 35.3A Sets out the requirements for the heading
  of the affidavit
• 35.4 Set out the requirements for the
  formatting of the affidavit and requires that
  each matter covered in it must be in a separate
  paragraph so that issues are not intertwined and
  mixed up in one paragraph.

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FORMALITIES continued

• 35.5 Spells out how any alternations to the
  jurat or in the body of the affidavit are to be
  dealt with
• 35.6 Explains how annexures and exhibits are to
  be dealt with in conjunction with an affidavit.
  THIS IS VERY IMPORTANT AND SHOULD BE CAREFULLY
  READ AND UNDERSTOOD BEFORE YOU FILE ANY
  AFFIDAVIT. MANY SOLICITORS BREACH THIS RULE
• 35.7 Deals with affidavits by persons who
  cannot read (eg. by a blind or illiterate
  person)
• 35.7A Deals with how the legal practitioner who
  takes an affidavit concerning some matter must
  identify himself or herself.
• 35.7B Each page of an affidavit must be signed
• 35.8 Sets out special requirements concerning
  affidavits of service
• 35.9 Covers the requirements for the filing of
  affidavits.

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ANCILLARY RULES

• Rule 2.1 Directions and Orders the Court may,
  at any time and from time to time give such
  directions and make such orders for the conduct
  of any proceedings as appear convenient for the
  just, quick and cheap disposal of the
  proceedings
• Rule 2.3 Case Management by the Court This
  allows the Court, via its own case management
  guidelines, to extensively control a whole range
  of things involved in case preparation by the
  parties such as
• . When pleadings should be filed
• . The filing of statements of issues
• .The provision of essential particulars and much
  more.
• NEVER COMMENCE PREPARATION OF A CASE UNTIL YOU
  FIRST FAMILIARISE YOURSELF WITH THE APPLICABLE
  CASE MANAGEMENT RULES AND DIRECTIONS. THAT IS
  JUST PLAIN COMMON SENSE.

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CHECK LIST PRE DRAFTING STEPS

• Take full and comprehensive RELEVANT instructions
  from the client (whether or not the client is the
  deponent of the affidavit to be drafted)
• To be able to take relevant instructions from the
  client you must of course be in a position to
  identify -\
• The relevant parties
• The relevant issues
• The relevant law applying to those issues
• The relevant witnesses
• Relevant documents and who is in possesion of
  them
• The relevant court practice and procedure
• The relevant jurisdiction to deal with the
  dispute.
• If you commence drafting the affidavit before you
  have met the above pre-requisites then you are
  heading for trouble.

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CHECK LIST PRE-DRAFTING CONTINUED

• 3. Once you have satisfied the pre-requisites I
  have mentioned you then take the next key steps
• You prepare a full, comprehensive CHRONOLOGY of
  all the key relevant events and the dates of
  those events in chronological sequence
• You then prepare an index of all the relevant
  documents you have managed to identify as a
  precursor to preparing a formal TENDER BUNDLE
• You then make sure that you cross reference your
  Chronology and your Tender Bundle
• You make sure that you have your client review
  all this and sign off that he or she is satisfied
  that the Chronology is correct and accurate and
  that you have in your possession all relevant
  documents in his or her possession.
• NOW YOU ARE READY TO START DRAFTING THE AFFIDAVIT

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THE ESSENTIALS OF SKILFUL DRAFTING

• Have full, comprehensive and accurate
  instructions before you commence drafting,
  preferably in a signed proof of evidence.
• Have a Chronology that has been verified and
  approved by the client before you start drafting
  to use as an aide to your drafting so that your
  affidavit flows in correct chronological order,
  all relevant events are covered and to ensure
  accuracy of the facts deposed to.
• Identify as many relevant documents as you can
  and make early assessments about the probative
  value of each document and any problems that
  might be associated with its admissibility as
  evidence.
• Identify relevant witnesses for both parties to
  the dispute and make some assessment about their
  probative value and availability to give
  evidence.
• Identify the relevant jurisdiction and the
  applicable court/tribunal practice and procedure
  and study it.
• Learn the rules and techniques of good drafting
  to ensure that each affidavit you draft will
  bullet proof against most objections to
  admissibility of the whole affidavit or parts of
  it.
• Organise it and present it in a way, format and
  style that makes it easily readable and
  understandable.

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GOOD DRAFTING HINTS

• Map out a structure for your affidavit before you
  commence drafting ie. a skeleton outline,
  extracted from your instructions and (if deponent
  is your client) from the chronology
• Use your chronology or instructions from the
  deponent to assist a logical and chronological
  flow to the affidavit
• Remember whilst you cannot supply or influence
  the evidence going into the affidavit you can
  influence and direct its style, organisation,
  flow and ITS ADMISSIBILITY. You can certainly
  ensure that the final effect is Rolls Royce and
  not a clapped out old Holden.
• Try to work towards sentence structures and
  paragraphs that are lean, lucid and as succinct
  and economical as possible. That makes for easier
  reading and comprehension by the court/tribunal
  and that can only assist your clients case.
• Avoid overlapping ideas, themes, issues or
  topics. One paragraph per theme or issue.

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DRAFTING HINTS continued

• Make sure that the language used SOUNDS LIKE the
  deponent and not like you. Use his or her words
  and language but mould it into good sequencing,
  correct grammar and good flow.
• Make sure what you include IS RELEVANT EVIDENCE.
  Dont allow the witness to take control of this
  aspect. You are in control of this aspect. Be
  firm and provide guidelines to the witness as to
  what are the areas of relevance and if the
  witness wants to rabbit on down some by way
  resist that and bring the witness back on track.
• Remember that evidence that emanates from any
  CONVERSTATION (face to face, over phone etc) must
  be given in the first person as direct speech
  ie. He said . and I replied . and
  you cannot insert evidence that is some form of
  summary of such conversations recalled by the
  witness or based on his or her personal
  interpretation of what was said.
• It is not essential that the witness be asked to
  recall precisely or exactly word for word what
  was said and especially if the conversation took
  place a long time ago. It is quite permissible to
  say something like To the best of my
  recollection Mr. Brown said words to this effect
  ..

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DRAFTING HINTS continued

• Use Italics for the actual bits of first person
  (direct speech) conversation to make it stand out
  in the affidavit.
• Use indenting to help highlight this part of the
  evidence and avoid condensing it too much. Use
  plenty of space in the body of the affidavit so
  it is easy for the trier of fact to read it and
  so that it stands out more in his or her mind
  because you have organised it in a way that helps
  draw attention to it.
• Keep a close eye on inserting relevant dates as
  the evidence unfolds. This is where the
  chronology or prior instructions comes in handy.
  Do not leave this open to be cross examined on by
  your opponent. You want your own evidence to
  supply the dates whenever and wherever possible.
• If the witness cannot recall the precise date
  then you ask the witness if he or she can recall
  the month and whether it was early in that month,
  in the middle or close to the end. So it is quite
  okay for a witness to say, if he cannot do
  better, I remember that my first meeting with
  Mr. Brown took place in early March 2006 and I
  met him at his office in the CBD.
• Make sure that you always ask your witness to say
  who else was present at any relevant place or
  time and get that into the affidavit.

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HINTS continued

• Make sure that any relevant documents that you
  will need to adduce into evidence at a hearing
  are appropriately covered in the affidavit
  either by way of annexure or by exhibit. You need
  to consider carefully the pre-requites of proof
  to get the document into evidence and then ensure
  that whatever evidence is needed from the
  deponent of the affidavit or statement is
  included in the affidavit/statement. If you
  overlook this you may run into problems at the
  hearing as your opponent is likely to take
  objections regarding the admissibility of a
  document until you adduce the required evidence
  to make it admissible. If you do not have the
  relevant witness at court to overcome the
  objection then you will be in difficulty.
• Remember what you are trying to adduce via an
  affidavit or a statement is the foundational
  evidence to support the cause of action or case
  or application you bring before the court for
  your client. Strongly resist the temptation to
  add in material that on proper analysis is NOT
  EVIDENCE but rather interpretation, opinion,
  belief or extraneous stuff that will very likely
  be objected to as inadmissible on grounds of
  relevance or form (ie. the form it is in renders
  it inadmissible because it offends against one or
  other rule of evidence).
• No affidavit should be considered finalised and
  ready to be sworn, filed and served until you
  have reviewed it with a sharp eye several times
  with a view to culling out inadmissible material
  and/or correcting inadmissible material to make
  it admissible.

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THE BIG NO Nos

• Do NOT allow the deponent to say whatever he or
  she wants to say. It is your job to be
  discriminating and ensure that what goes in is
  both relevant and admissible in its form.
• Do NOT allow the deponent to provide COMMENT or
  INTERPRETATION of the foundational evidence.
• Do NOT allow the deponent to include expressions
  of personal BELIEF or personal FEELINGS about
  something of relevance. Just restrict him or her
  to THE EVIDENCE (i.e what he/she saw, observed,
  heard etc) upon which a court or tribunal will
  eventually determine what it believes or feels
  about the evidence as a whole. Any evidence that
  is SPECULATIVE in form will be ruled inadmissible
  when the strict rules of evidence apply.
• AVOID and exclude HEARSAY EVIDENCE. Explain the
  hearsay rule to each witness and be diligent to
  keep it out. Only exception is if the strict
  rules of evidence do not apply in the
  jurisdiction you are operating in but even
  there you must keep hearsay to a minimum to avoid
  the tribunal downgrading the weight it will give
  to that evidence.

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THE BIG NO Nos continued

• Definitely DO NOT create the affidavit in your
  own words and speech style. Overly stilted or
  legalistic language is very often a dead give
  away that you have put words in the mouth of the
  deponent. Be diligent in picking up on this when
  reviewing the affidavits of the opposing party.
• Overcome the temptation to try and explain or
  interpret or quote EVIDENCE that is contained in
  relevant DOCUMENTS that are annexed to or
  exhibited with the affidavit or statement. THE
  DOCUMENT SPEAKS FOR ITSELF and if you quote it in
  the body of the affidavit is becomes HEARSAY.
• If you want to annex a document you use this form
  of words Annexed hereto and marked A (and
  then in sequence, B, C etc) is a true copy of
  describe the document dated insert date and
  then affix the usual annexure note to the annexed
  document.
• If you decide to exhibit a document, rather than
  annex it, you say Exhibited hereto and marked
  CB-1 is describe the doc dated insert date.
  You then will need to affix an exhibit front
  sheet to that document.

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BIG NO Nos continued

• Do NOT fall into the trap of allowing the witness
  to give his or her evidence as a SUMMARY rather
  that the actual evidence of what was said,
  observed, heard etc. That will make it
  inadmissible in Form.
• Do NOT include in the affidavit or statement or
  annex to it or exhibit with it any document or
  evidence that you know to be PRIVILEGED or
  CONFIDENTIAL unless or until you have the consent
  of the other party or a ruling from a court or
  tribunal that permits you to adduce that
  evidence.
• Do NOT overlook court practice rules relating to
  the filing of affidavits. In some jurisdictions
  there are restrictions on filing affidavits that
  have more than a specified number of pages or
  annexures. If such a restriction applies, or if
  there are many relevant documents to adduce it
  is better to make them EXHIBITS rather than
  Annexures.
• You DO NOT file Exhibits in the Court Registry.
  You serve them on the opposing party and then
  TENDER them at the right time during the final
  hearing.
• DO NOT neglect to SERVE any affidavit or
  statement that your client wishes to rely on and
  ensure you service it correctly in accordance
  with the applicable court or tribunal rules.
  Otherwise the evidence will not be admissible at
  the hearing unless you can persuade the court
  that no prejudice will be caused to the other
  party.

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BIG NO Nos continued

• Do NOT present the evidence in long winded and
  disjointed paragraphs. Be concise, precise and to
  the point.
• Do NOT allow the witness to specify a precise
  date or location as part of his or her evidence
  unless you are satisfied that it is entirely safe
  to do so. If the witness has some doubt or is a
  bit vague it is always better to cover that by
  such words as To the best of my recollection
  I recall that I met him in the morning but
  I cannot be sure of the exact time and so on.
  Otherwise your witness will unwittingly find
  himself or herself boxed in during cross
  examination.
• In some cases you can rely on evidence USUAL
  PRACTICE if the witness is someone who has in
  place certain business practices or protocols for
  doing certain things like a doctor giving a set
  spiel to a patient about a certain type of
  operation procedure or an accountant who has a
  set practice about giving certain tax advice to
  clients. Provided that you are able to PROVE the
  existence of such a practice then evidence can be
  given in this form to make it admissible. It is
  then a question of what weight the court
  ultimately will give to it.
• Do NOT leave big evidentiary gaps in your
  affidavit evidence as the whole purpose of most
  court practice rules covering the use of
  affidavits is that evidence by affidavit is
  supposed to comprehensively adduce the relevant
  evidence of that witness. Therefore your
  affidavits must be carefully checked before the
  hearing to ensure that they cover all that must
  be proved to win the case. If you discover that
  there is a gap at the hearing you can apply to
  the court for leave to adduce further evidence
  vive voce but this is totally within the
  discretion of the presiding judge or tribunal
  member and will only be granted if it is
  satisfied that it will not cause any prejudice to
  the other party.

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ANALYSING SOME REAL EXAMPLES AND LEARNING THE ART
OF OBJECTIONS TAKING THEM AND RESPONDING TO
THEM

• This will be done during the workshop and you
  will be supplied with some supplementary slides
  covering the key points arising out of each
  sample affidavit or statement after the workshop.
• You will be supplied with samples during the
  workshop but these are not to keep and must be
  returned as they are taken from real cases and
  whilst the presenter has tried to ensure that all
  confidential parts are deleted he has decided
  that it would be best that all sample documents
  be returned to him at the end of the workshop.