May 09, 2012 Articles

When to Swear and When to Declare: Affidavit or Declaration?

The answer will depend on your jurisdiction.

By Matthew J. Bakota

Several years ago as a new lawyer I found myself surprised by how often affidavits were used in the “real world” practice of law. Coming out of law school, I was under the impression that evidence used in motion practice came from three sources: the parties’ written discovery responses, the parties’ document production (or documents obtained via third-party subpoena, and the like), or deposition testimony. Not the case, as I soon learned.

In addition to how frequently affidavits were used, I was surprised also at the content of affidavits I encountered. It literally seemed like just about anything was fair game. But thankfully there are limits, such as Ohio’s prohibition against sham affidavits that are merely intended to contradict prior sworn deposition testimony and avoid summary judgment. See, e.g., Byrd v. Smith, 110 Ohio St.3d 24, 850 N.E.2d 47, 2006-Ohio-3455.

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