Affidavit or Declaration Checklist (Litigation Checklist)

This affidavit or declaration checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  An affidavit or declaration is simply a written and sworn statement and has various uses in litigation including support of a motion, response, verified complaint, etc.
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Checklist:
- State the name of the affiant, being duly sworn and over the age of 21 (if true), states as follows based on personal knowledge:
- State facts or opinions in numbered paragraphs.
- Provide a signature block for the affiant and notary (see sample affidavit, below)
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Thoughts & Best Practices:
- While affidavits normally state only facts and information personally known to the affiant, there may be exceptions where either hearsay exceptions or exclusions apply, or where the rules of evidence do not apply (such as in some arbitration or mediation, etc.).  Consider what the applicable evidentiary standard is, if any, and ensure that the affidavit sets forth the required foundation.
- Ensure that statements made in affidavit are not contradicted by previous sworn testimony in depositions or hearings, or by other documentary evidence.  While an affidavit that contradicts earlier testimony may be permissible, consider the potential for exploitation on cross-examination, etc.
- Consider how the opposing party could use the statements in the affidavit to their advantage in future motions, depositions, cross-examination, etc.  Can the affidavit be rephrased?  If not, does the benefit outweigh the risk?
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Example Forms:
- Click Here for Sample Affidavit (Locked)
- Click Here for Publicly Editable Affidavit (Please feel free to make improvements to this form, and comment below to describe what changes were made)
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This affidavit or declaration checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.