LEGAL GUIDE
Written by attorney A James Rockefeller | Nov 16, 2011

What you need to know about Affidavits

. What is a witness affidavit?

A witness affidavit is a written record of a witness's out-of-court statement that is signed and sworn by the witness in front of a notary public or other official authorized to administer oaths.

  1. When is a witness affidavit used?

Witness affidavits are a tool that lawyers on both sides of a case will use to know what a witness is going to say at trial.

  1. Who can be a witness in an affidavit?

You should only seek affidavits from those witnesses that you have a personal relationship with. This includes friends, co-workers, and members of your family. You should provide your attorney with all potential witness' names, addresses, and telephone numbers, as well as a brief description of what the witness is expected to say.

  1. When should I provide my attorney with the information about my witnesses?

This information should be provided BEFORE any affidavits are submitted to the attorney. By doing so, the attorney can keep track of what witness affidavits have been submitted and which are expected to be submitted in the future.

  1. What if I have a witness who I do not have a close personal relationship with, but who has information that is relevant to my case?

On the occasion where the witness is someone from outside the client's close personal circle, the client should provide the attorney with the potential witness' name, address, and phone number(s). You should also provide your attorney with a brief description of what the witness is expected to say. Your attorney will interview the witness for an affidavit.

  1. Can a witness affidavit include what other parties have told me?

Yes. An affidavit can be based, in part, on what either of the parties that are currently involved with your case have told you. However, anything that is told to you by a third party is not appropriate or admissible in your affidavit.

  1. What types of information should I include in my affidavit?

Your affidavit should respond to the relevant issues in the lawsuit. For example, a witness affidavit might include first-hand observations of how either parent has interacted with the children or the affidavit might testify to the "facts" in the pleadings as to whether they are true or untrue.

  1. How should I write my affidavit?

Affidavits should be expressed in your own words. Your affidavit should not be rambling or repetitive. It should also be clear as to whether you are speaking from your own knowledge, specifically times where you were present and saw what happened, or whether you are relying on something that you were told by another person.

  1. How should I submit my affidavit?

It is generally helpful to have witness affidavits submitted first in electronic version to your attorney, so that the affidavit can be formatted properly for submission to the Court. You can create these electronic versions using a PDF or Word document, or by writing your statement into the body of an e-mail.

  1. How soon should I submit my affidavit to my attorney?

Any rough drafts of affidavits should be, whenever possible, submitted to the attorney at least two (2) weeks before the initial court hearing.

  1. I was asked to write an affidavit for what I saw regarding the care provided to a child. What should I include?

Affidavits can be useful in addressing patterns of behavior by testifying to a series of incidents or habitual events. For example, a witness who has been around a family for two (2) weeks at dinner time may have observed one parent cooking, caring for and feeding the children. Other caregivers, such as doctors, teachers, and day care workers, might write about how they witnessed one parent that seemed to be providing the primary care for the children. Particularly powerful affidavits are those reciting specific incidents or events observed by the witness that indicate the relationship of either parent with the children. These incidents can include one of the parents acting inappropriately toward the children, an incident where the children seemed to favor one of the parents, or any other situation where it seemed clear that one parent was the "primary caregiver."

  1. I was asked to create an affidavit explaining the arrangements of care for a child. What should this include?

An affidavit dealing with the arrangements of the care of children should, where relevant, include the following: a. the qualifications of the witness (if not a parent) to speak about the child; in what circumstances and how often the witness normally sees the child; b. the ability of those with whom the child lives to provide proper care for him or her; c. observations as to the relationship between the child and other members of the household, the child's general appearance, interests, state of health & well-being of the child. d. a description of the condition of the home in which the child lives; e. the arrangements of contact between the child and any parent (and siblings) who do not live in the same household as the child; f. information about the school the child attends & whether the child attends school regularly; g. details of child care arrangements during working hours, including the arrangements for such care outside school hours.

  1. What if something that I have written in my witness affidavit changes after I have signed my affidavit?

You should contact your attorney immediately so that a change can be made to your affidavit.

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