SC Lawyer, January 2010, #1. Attacking Affidavits: Maintaining the Integrity of the Process.

AuthorBy Christopher M. Kelly and Laura G. Simons

South Carolina Lawyer


SC Lawyer, January 2010, #1.

Attacking Affidavits: Maintaining the Integrity of the Process

South Carolina LawyerJanuary 2010Attacking Affidavits: Maintaining the Integrity of the ProcessBy Christopher M. Kelly and Laura G. SimonsThe use of affidavits by counsel, whether submitted by the defense to substantiate its contention that summary judgment is warranted or by the plaintiff in an effort to show the existence of a material issue for trial, often can be an effective method of presenting information critical to the court's evaluation of the merits of the case. However, in many respects, the formalities of affidavits have fallen by the wayside. Over time, as courts have become less procedurally formal, there has been a corresponding erosion of the standards governing testamentary evidence submitted by practitioners and considered by courts. As standards for affiant-submitted evidence have eroded and fallen by the wayside, so has the integrity of the fact-finding process. The importance of maintaining and enforcing the standards established for sworn statements is as important as the integrity of the justice system itself.

This article revisits and emphasizes the procedural and practical requirements for the admissibility of sworn statements. Supporting or opposing affidavits "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify to the matters stated." Fed. R. Civ. P. 56(e)(1). A party who submits evidence in the form of affidavits must do so in the proper, authenticated form. Even at a preliminary stage of trial, courts should not permit admission of documents that do not strictly comply with procedural rules. It is imperative that a party's sworn submission be sufficient in execution and substance, as well as consistent with prior assertions, to ensure the integrity of the process. Accordingly, practitioners should reexamine their affidavit forms and consider whether they are in compliance with the applicable rules and case law as to form. Practitioners also should examine opposing counsel's submissions and move to strike any that do not meet the clear standards set forth for admissible affidavits and sworn statements.

Technical requirements for a sworn statement are critical but often not met

The mere signing of a statement in the presence of a notary, or a notary's placement of an "acknowledgment" on a statement, does not constitute a sworn statement or affidavit. In Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir. 1993), the plaintiff argued that courts should be "lenient" in accepting documents at the summary judgment stage, "as long as they are 'probative,' or at least 'evidence of evidence' that could later be introduced at trial." The court rejected this argument, holding: "We have no desire to make technical minefields of summary judgment proceedings, but neither can we countenance laxness in the proper presentation of proof." Id. at 92. Every practitioner and court should hold to this rule to ensure the integrity of the process.

In one precedential case, the U.S. Court of Appeals for the Fifth Circuit was confronted with the issue of whether a party's signed statement, given in the presence of a notary, constituted competent summary judgment evidence. Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1305 (5th Cir. 1988). The acknowledgment at the end of the purported affidavit considered by the Court read as follows:

BEFORE ME, the undersigned authority, on this day personally appeared Mrs. Rukmini Sukarno Kline, known to me to be the person whose name is subscribed to the foregoing Affidavit, and acknowledged to me that she executed the same for the purposes and consideration therein expressed.

/s/ Rukmini Sukarno Kline


GIVEN UNDER MY HAND AND SEAL OF OFFICE this 17th day of April, 1983.

/s/ Robert C. Bennett, Jr.

Notary Public in and for Harris County, Texas

Id. at 1306. In spite of opposing counsel's argument that the evaluation of its submission was "hyper-technical," the court held that this acknowledgment was insufficient to convert the unsworn statement into a valid affidavit and was thus properly disregarded as competent summary judgment evidence. In support of its conclusion of law, for which it has been positively cited 85 times by courts throughout the country, the court held: [T]he only evidence in the summary judgment record purporting to justify [appellant's position] was her own rendition of facts contained in a notarized, self-described "affidavit." This affidavit is neither sworn nor its contents stated to be true and correct nor stated under penalty of perjury. Id. at 1305-06. A recent federal court ruling in Texas similarly demonstrates this pitfall. Schelsteder v. Montgomery County, Tex., 2006 WL 1117883, at *3 (S.D. Tex. 2006). In Schelsteder, the court held that statements that merely bear the signature of a notary, as were proffered by the plaintiffs, constitute neither affidavits nor sworn statements appropriate for the court's consideration upon the defendant's motion for summary judgment. The court rejected the plaintiffs' submissions as proper evidence, holding:

Plaintiffs have filed a number of witness statements that Plaintiffs' counsel characterize as "affidavits," but they are not sworn to nor are they statements made under penalty of perjury. The mere signing of a statement in the presence of a notary, or a notary's placement of an "acknowledgment" on a statement, does not constitute a sworn statement or affidavit. Accordingly, the [statements] do not constitute summary judgment evidence under [Rule 56(c)], and are not considered on the pending motion.Id. The plaintiffs' failure to present proper statements, made under penalty of perjury, warranted the court's disregard of the proposed "affidavits" and its granting of summary judgment in favor of the defendants. Courts throughout the country unanimously agree with the Nissho-Iwai court's...

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