February 27, 2014
But, as that article concluded, there is more to advocating through your affidavit than dealing with adverse facts. Your affidavit is your opportunity to tell your story for the court – to set the narrative upon which the law will be applied.
To this end, your affidavit must present a complete set of facts that are as favorable as possible to your client. The previous post covered how to manage any facts detrimental to your argument, but that’s only part of giving your facts the proper treatment.
That is, where negative facts are deemphasized or placed in a different context, those facts that are particularly beneficial to your argument need to be highlighted and expanded upon. More specifically, you should make extra efforts to ensure that there is little to no chance that the reader of your affidavit misses an important fact.
This can be accomplished in any number of ways. You can commit more space to this particular fact or set of facts in relation to the rest of your affidavit narrative (i.e., instead of a sentence or two, you commit a full paragraph or so to describing the detail in question). You may also bring up this particular detail more than once in the affidavit. Finally, you may do a combination of the first two by making your entire narrative center on your favorable facts.
Of course, in being advocative in your affidavit, subtlety is still the name of the game. It takes a delicate touch to emphasize your positive facts without overemphasizing them such that it negatively affects your affidavit. To this end, you should expand your facts only where it objectively makes sense. If it can’t smoothly seep into other parts of your narrative, then don’t do it. If your favorable facts aren’t significant enough to tie them into your entire affidavit, don’t force it.
The reader will be able to tell when something doesn’t fit quite right in a story, and one of the worst impacts that your affidavit could have on the judge is for her to feel as though you are trying to beat her over the head with certain facts.
But crafting the best affidavit is about more than positive and negative facts – it’s also about the law.
True, you aren’t supposed to make legal arguments in your affidavit. After all, they are generally intended to be sworn statements of fact from non-attorneys (or, at least from those speaking in a non-attorney capacity).
But the law is what will decide your case, and you should be aware of this factor when you are writing your affidavit. Here’s how:
Become very familiar with the statutes and cases that will be central to the determination of the case. Then locate any kinds of tests or factors that the judge will look to within that body of law to reach her conclusions.
These factors are almost always factually-based, and as such, the judge will be looking through the factual record (including your affidavit) when going through one of these tests.
The tricky part here is not including the facts that relate to the law of your case; the tricky part is including these facts in such a way that the judge believes that she has found them for herself.
If the judge believes that one party is serving facts on a silver platter that just happen to align with the legal analysis that will be used in deciding the case, she will view this factual offering as an argument and it will meet resistance.
If, however, the judge “finds” facts for herself (conveniently placed there by you to find, of course), then she will feel as though the facts are her own and weren’t forced upon her by either side. And she will be all the more likely to use them in her legal analysis.
Moving out of the abstract and into the practical, what does this mean?
It means that you should not put specific legal language into your affidavit. Do not even present the facts in the order that they will be used in any respective legal analyses. It will throw up all kinds of red flags to the judge and make it apparent that the attorney is just trying to make a backdoor argument.
What you should do instead is write your affidavit based on what rules of law will be applied, and then identify which facts are the most important to this analysis. After this, write your affidavit like a story, spreading those important facts throughout the entire narrative.
What your affidavit should be is a story, not a legal argument. While it’s difficult for attorneys to think of writing stories instead of arguments, your affidavits will be far more successful with this added effort. And that will make you a better attorney.