Legal writing series: Dealing with adverse facts in your affidavit

February 19, 2014

journal writingIn the previous installment in this series, I discussed the subtle ways that you can advocate for your client through proposed orders.  Proposed orders aren’t the only kind of non-adversarial documents that you can find outlets for subtle advocacy.

Another such type of document – one also not normally thought of as being an instrument for advocacy – is an affidavit.

The common conception of an affidavit is that of a sworn statement that provides facts, usually as the basis for a motion or for introduction into evidence.

Many seasoned attorneys may already realize this, but your affidavit is – or at least should be – more than a mere recitation of facts that you need for your case.  Instead, it’s your opportunity to tell a story for the court; more specifically, to tell your story for the court.

The secret to leveraging your affidavit as an advocacy tool is to make it appear as neutral as possible on its face (much like you would with any advocacy in court orders).  True, the court will likely expect that each side will present a somewhat biased view of the facts, but that doesn’t mean that you should surrender to that predisposition by making your affidavit blatantly antagonistic.  All that accomplishes is to ensure that the judge reads your affidavit with an even more skeptical eye.

To this end, you should not omit facts detrimental to your case.  But don’t just include them without the proper treatment – i.e., projecting them through the lens of your client’s interests.  That is to say, make these facts fit as part of your story of the case, one that acknowledges the existence of the fact, but puts it into a context that diminishes or nullifies the adverse impact the fact could have on your client, or (ideally) one that actually strengthens your client’s arguments.

Dealing with adverse facts can be very tricky at times, since it must be done in a way that doesn’t create a misrepresentation or other falsehood, but also doesn’t make it obvious that you’re just trying to cover up for your client.  Nonetheless, there are three possible methods of successfully neutralizing adverse facts.

The first of these methods is to acknowledge the fact, but to further minimize its importance in the present and future.  For example, let’s say that this fact is some kind of action taken by your client that may be regarded as less than acceptable by the court.  You can deal with this fact in your affidavit by acknowledging that it happened, but that your client deeply regrets these actions and has perhaps taken remedial measures as penance or to ensure that the actions aren’t repeated.

The second method for neutralizing unfavorable facts is to change the context in which the fact appears by providing additional or slightly varied details around the fact.  A good example of this is adding context to a detrimental fact such that your client has a justification for what occurred (perhaps there were extenuating circumstances, perhaps the action was taken to prevent an even worse outcome, etc).

The final method is somewhat of a combination of the first two: turning the fact from a negative to a positive.  There are some facts with which this simply cannot be done, but for those to which it can apply, it is the preferred method in rehabilitating any negative facts in your client’s case.

This method involves using similar measures to the first method, in that you acknowledge the fact’s existence, but then add context to reduce or eliminate its negative impact on the case going forward.  However, as with the second method, you further add details that change the underlying context around and presumptions about the fact as it relates to the ongoing status of the case so that its legacy becomes something constructive, rather than injurious, to your client’s case.

Here’s an example of that final method: let’s say that your client did something bad in the past that the other side will undoubtedly bring up to use against you.  Using this third method, the fact is acknowledged and its negative impact on the case is minimized by your client through, say, a heartfelt apology.  But then additional details surrounding the fact in your affidavit can frame the fact as a “turning point” that has made a “lasting impact” on your client such that he or she is almost a “different person” now.

You would clearly need to include some additional facts in your affidavit that support this assertion, but if done correctly, this method can significantly take wind out of your opposition’s sails while adding to your own.

But there’s more to using your affidavit to advocate for your client than only dealing with harmful facts.  Our next installment will explore those options in detail.