How Do I: Prepare a Better Affidavit

When preparing an affidavit, assume the affiant will be deposed.   He will be asked about every line in that affidavit.  Every noun, every verb, every prepositional phrase.  He will be asked why he used one phrase versus another, one word instead of another.  What did the affiant mean by "x," or what information is "y" based upon?  The other side will try to floss his teeth with his own affidavit.  Keep that in mind when preparing the affidavit.  First, there should be a factual basis for every factual assertion.  Second, the affiant should know those facts and the significance of those facts.  Simply, he should be the right person for the affidavit.  And often overlooked, the affidavit should be written in a manner so that the affiant understands every word and appreciate every acronym.  You may consider going through a quick mock deposition with the affiant about the proposed content of the affidavit before he signs it.  Such questioning may reveal that tweaking is necessary before executing it.    

Also, it bears noting that when an expert signs an affidavit, assume that the various drafts of the affidavit that lead up to the final version which he signs may be discoverable.  Why did he say "x" in version two, and changed it to "y" in version three?  That could be a question he faces in deposition.  Keep that in mind when working with experts on their affidavits.

Read more on Frank Ramos' blog, Tips for Young Lawyers. Francisco "Frank" Ramos, Jr. is the administrative partner at Clarke Silverglate in Miami, Florida, where he practices in the areas of products liability, employment, commercial litigation, medical malpractice, class actions and general liability.

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