Commercial Law and the Importance of Affidavits

Commercial Law and the Importance of Affidavits

 
Affidavits? Arent those the things we give to the staff to draft? We commercial lawyers dont have time to spend on a measly form document. We business litigators are too busy to deal with the merely mundane. Well--maybe not so fast.
 
In Bernal v. All American Investment Realty, Inc., et al., 479 F. Supp. 2d 1291 (S.D. Fla. 2006), a U.S. magistrate recommended that the motion for sanctions be granted resulting in a default judgment entered against defendants, who would be jointly and severally liable for plaintiff's damages. The magistrate also recommended that Defendants' attorney be ordered to compensate plaintiff for fees and costs incurred as a result of the response memorandum used. Why? Because of an affidavit the Defendants’ attorney drafted to seek sanctions against Plaintiff.
 
In Bernal, the Plaintiff asserted that the Defendants (five companies and their owner) violated the Fair Labor Standards Act (29 U.S.C. § 201 et seq.), by failing to pay her minimum and overtime wages, as well as her last six weeks of compensation. Plaintiff moved for the imposition of sanctions based on the conduct of defendants and their attorney during discovery. The evidence showed that defendants' attorney, without conducting any independent investigation, drafted an affidavit which purported to be a statement from an Affiant who said that the Plaintiff offered him a bribe in exchange for the Affiants testimony.