SC Lawyer, March 2005, #9. The Scrivener - Affidavits.

• Author: By Scott Moise

South Carolina Lawyer

2005.

SC Lawyer, March 2005, #9.

The Scrivener - Affidavits

South Carolina LawyerMarch 2005The Scrivener - AffidavitsBy Scott MoiseAffidavits are routine in the day-to-day practice of most lawyers, whether to support motions, verify facts, or as part of business and real estate transactions. Approach drafting affidavits as if eliciting testimony at trial. Determine what facts are necessary to support each element of the motion or transaction; then, find the witness who has personal knowledge the competency to assert the facts under oath. After selecting the witness, choose your words carefully because they will be scrutinized for the remainder of the lawsuit since they are made under oath. Be specific as to names, dates, and important events. Affidavits should be worded simply, in the witness's own language, and with a minimum of words. The affidavit should be tightly organized and tell a story.

South Carolina Rule 11(c) provides certain requirements for affidavits of attorneys, parties, and witnesses. Federal Rule 11 does not have a provision that corresponds to state Rule 11(c). Under the state rule, affidavits must be:

Sworn before an officer authorized to administer oaths; and Based upon personal knowledge, or upon information and belief, as to matters the affiant believes to be true.

For summary judgment, in both state and federal court under Rule 56(e), affidavits must:

Be made upon personal knowledge,

Set forth facts that would be admissible in evidence at trial, and Show stated in the affidavit affirmatively that the affiant is competent to testify to the matters.

1. The testimony is taken under penalties of perjury.

   Affidavits in state court must be sworn to before "an officer authorized to take oaths." S.C. R. Civ. P. 11(c). The "officer" may be an authorized person such as a judge or clerk of court, but typically he is a notary public. The officer must certify that: (1) the witness appeared before him and acknowledged that he executed the affidavit, and (2) the witness was known to him or had satisfactory evidence that the witness was the person described in and who executed the affidavit. See S.C. Code Ann. § 26-3-40 (Law. Co-op. 1976). Then, the officer must sign and date the affidavit. Other rules for notaries are found in Title 26 of the South Carolina Code.

   In federal court, affidavits may be notarized, but notarization is not required as long as the declaration is signed, dated, and contains the following statement: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date)." 28 U.S.C. § 1746 (1976). The statute provides different requirements for declarations executed outside the United States.

   Finally, make sure that the witness signs the affidavit. See Smith v.Walsh, 833 F. Supp. 844 (D. Okla. 1993) (rejecting unsigned...