Pre-Trial Advocacy

Week of 3-28-11

New fact memo.
Affidavits outline.
OK, so we've had discovery, and we're not settling. If you're a litigator, probably 80% of your cases are resolved at summary judgment.
Dispositive motions: dismiss a claim, have relief granted, dispose of a defense.
Affidavits are critical because they are the vehicle by which you provide facts and documents to a court to enable them to rule on a motion. You can attach documents (and the affiant has to be able to authenticate them). So if you want to get a document in, think who has knowledge of the document (its authenticity, its contents): that's who will have to vouch for it.
Facts, obviously, have to be admissible. So avoid hearsay.
Affidavits are also a way to lock in a 3rd party witness's testimony. Of course, when you put the affiant on your witness list, they get subpoenaed and deposed. There are no surprises at trial, and it's likely that the deposition will reveal at least one inconsistency in the affidavit.
So when you're drafting an affidavit (they are drafted by attorneys), less is more: unnecessary details will come back as impeachment testimony.
The "Sham Affidavit" rule: recently adopted in WI, in the FRCP for some time. When there's conflict between an affidavit and deposition testimony, this comes in to play. A party cannot avoid summary judgment by submitting an affidavit that contradicts deposition testimony. Deposition (by witness) trumps affidavit (prepared by lawyer). It has to be a direct conflict, but that's how it works. Factors: did the deposition afford the opportunity for both direct and cross (it always does), did the witness have access to pertinent information at the time, or was additional evidence uncovered later, or did the depo testimony reflect confusion or something which the affiant is now trying to explain?
Of course, at trial, people might contradict all sorts of things: then you impeach them. The sham affidavit rule deals with motions. But it comes up in 10-20% of summary judgment motions.
A verified complaint: looks like a regular complaint, but is signed under oath. You do this because you want an injunction (i.e., right away). In theory, that means all facts are personally known by the executor.
28 USC § 1746: unsworn declarations under penalty of perjury (note: no notary required; this doesn't really exist in WI).
Anyway, this has the same pitfalls as the affidavit: it can be impeached, so be careful.
FRCP 43(c) - taking testimony. Courts can hear motions on affidavits, depositions, or oral testimony. In practice, it's usually affidavits. For injunction motions, you might hear some testimony.
FRCP 56 - Summary judgment (cf Wis. Stat. § 802.08). Defendants' favorite rule: disposing of cases or claims. See (c) : procedures for summary judgment. Also (h): affidavits in bad faith will get you clobbered; this is basically the sham affidavit rule, in a more general form.
Format requirements: look at the handouts. The caption is familiar. The title can be helpful if it says what the affidavit supports (or opposes). Then a surprise: State and County where the affiant is located at the time of signing the affidavit. Note that signatures are electronic in federal court; western district is s/Name, Eastern District is a scanned-in actual signature. Also there's notarizing.
Affidavits should be self-contained: it should read like a simple mini-story: why is this person qualified to say what they're saying, what they saw, heard, signed, etc.