SC Lawyer, Nov. 2004, #2. Beyond the Bar - Common Civil Litigation Errors: Don't Let Them Happen to You!.

• Author: Warren Moise

South Carolina Lawyer

2004.

SC Lawyer, Nov. 2004, #2.

Beyond the Bar - Common Civil Litigation Errors: Don't Let Them Happen to You!

South Carolina LawyerNovember 2004Beyond the Bar - Common Civil Litigation Errors: Don't Let Them Happen to You!Warren MoiseTrial advocacy no longer is a required course at the USC School of Law, my alma mater.

It should be. Sometimes grave errors already have been made before the case ever makes its way into the courtroom. This column looks at some potential traps.

Poorly drafted affidavits

It is not uncommon to see parties file inadequate affidavits in support of summary judgment motions, although evidentiary objections rarely are raised during the hearings. Affidavits must comply with the evidence rules and set forth such facts that are admissible in evidence. Cf. Dawkins v. Fields, 354 S.C. 58, 580 S.E.2d 433 (2003) (Waller, J.).

First, the affiant must have personal knowledge of the matter. Fed. & S.C. Rs. Evid. 602. Rambling affidavits filed by the lawyers reciting facts known from file reviews or with legal arguments may fail this test miserably. When an affiant has personal knowledge of the facts, "except those matters and things therein alleged upon information and belief, and as to those, he believes them to be true," these also are inadequate under Rule 602 and SC R. Civ. P. 56(e).

Second, the facts must be admissible in evidence. An unsworn letter or a copy of a webpage, for example, is hearsay unless a proper foundation is set forth in the affidavit. See, e.g., Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970 (4th Cir. 1990).

Finally, the affidavit must show affirmatively that the affiant is competent to testify about the matters in the affidavit. If an expert opinion is required to defeat summary judgment, the affidavit must set forth enough background from which the judge can find the expert to be qualified in her particular field. "I have expertise in the field of biomechanics" is merely a conclusion. A verified complaint may substitute for an affidavit, although it rarely will as a practical matter.

Discovery responses drafted by paralegals and associates

Interrogatory responses can provide devastating impeachment. Frequently the other attorney already knows the answers and sends the interrogatories as a set-up. Some lawyers completely delegate discovery responses to paralegals and...