March 28, 2011 Articles

Rethinking the Affidavit

Amended Rule 56 now specifically provides for the use of unsworn declarations to support (or oppose) motions for summary judgment

By Erik Stock

With the recent amendments to the Federal Rules of Civil Procedure, including Rule 56, having taken effect on December 1, 2010, the time is ripe to reexamine the best way to present written testimony in connection with summary judgment.

In cases pending in federal courts, including bankruptcy courts, litigants may file an unsworn declaration pursuant to 28 U.S.C. ยง 1746 for any purpose that they might otherwise need to file an affidavit, including in connection with summary judgment motions. Indeed, amended Rule 56 now specifically provides for the use of unsworn declarations to support (or oppose) motions for summary judgment.

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