My GUIDE To Preparing my Affidavits
When I am required to prepare an affidavit this guide, always walks me through the steps. This guide must not be construed as legal advice, since I am not a Lawyer and it is not my intention to give legal advice. These are the steps and information which I have gathered in my own quest to learn how to draft an Affidavit. This is a step by step process which I now use to write Affidavits to represent my cause. It has been a long learning process for me and hopefully this guide will save others the many missteps which I have taken.A Guide to Preparing
An Affidavit
If I am representing myself in Court, this guide I discovered is helpful for a self represented litigant such as myself to prepare
my affidavit.
Introduction
This guide describes the steps I take to prepare my affidavit.
What’s an affidavit?
- • We use affidavits for the presentation of evidence for the court to consider. Sometimes, courts hear evidence from witnesses who give oral evidence in person. An example of this is the TV show, 'Law and Order'. However, for certain court cases I must present my evidence by affidavits.
- • I consider an affidavit to be simply a written statement which contains important facts I want the judge to know about. I swear it under an oath before a registry clerk Commissioner of Oaths free of charge or a lawyer which usually requires a fee. “To swear” means I promise that the information contained in the affidavit is true.
- • My affidavit may have letters or other important documents attached to it. These attachments I have always referred to as exhibits to the affidavit.
- • My affidavit is then filed in the court registry, at Court Client Services free of charge. I also discovered that true Court File Date Stamped copies of the affidavit have to be given to all other persons named in the lawsuit.
- • The first rule about preparing an affidavit is that I should objectively tell the truth in my affidavit and avoid all subjectivity .
- • In the Supreme Court of BC, I discovered there is a form one must fill out for their affidavit. It is called Form 60. There is a sample affidavit at the end of this guide.
1. What I put in my affidavit must be
relevant to your case
The statement I make in the affidavit and documents attached to the affidavit
must be relevant to the matter before the court. This I believe is the key to having a good
affidavit.
- • What are the important facts that have to be put in the affidavit? Will since I am the only one who has knowledge of my facts the answer is me although lawyers can answer that question.
- • I believe preparation of my affidavits must be kept in the context of the whole case. What are my strategies for the court case? My affidavit should be drafted in that context. Again, I study hard and oftenfree of cost will reference http://www.canlii.org/ to get my legal information.
2. My affidavit sets out facts, not opinions
My Affidavits contain facts and not opinions.
Fact: You saw something happen and you have personal knowledge of it.
Example: I saw Tom Smith hit Harry Jones on the nose on February 7, 2006 at 3:00
p.m. This occurred outside the home of Harry Jones at 123 Main Street, Vancouver
BC.
Opinion: What you think or believe:
Example: I think Tom Smith is a bad person. Sometimes, opinions are important. For
instance, doctors and other experts can give their opinion in court. However, lay
people present facts in an affidavit, not opinions.
Get a general idea of what goes in affidavits
Look at the sample affidavit and sample completed affidavit in the Resources section
of this guide. An affidavit has 7 parts. We will look at each them in turn.
1. Style of proceeding
2. Deponent’s statement (“deponent’ is the person making the affidavit)
3. Knowledge statement
4. Body of the affidavit (this is the most important part of the affidavit)
5. Ending of the affidavit
6. Exhibits
Most parts of the affidavit are technical.
Section 3 explains how to fill them out.
The body of the affidavit is where you explain your story to the judge. Follow the steps in section 4 to fill it out correctly.
Style of Proceeding
• A style of proceeding appears on the first page of all court documents. It states who is suing whom and also gives the file number and court registry name. See sample affidavit and the sample completed affidavit.
• The style of proceeding remains unchanged throughout the life of the court case unless the judge orders otherwise.
• The style of proceeding enables the court registry staff to put the document in the right court file.
There are three things you have to do:
1. In the top right hand corner of the style of proceeding you must write:
- your initial and surname (you are the deponent);
- the number of the affidavit (you may have made more than one)
- the date on which you made the affidavit
Here is an example:
M. Smith #3
June 1, 2004
This goes in the right-hand corner so the judge can easily identify the affidavit. The number 3 indicates it is the third affidavit sworn by Mary Smith.
2. You need to “swear” the affidavit. This means you swear under oath (to God) OR you affirm that you are telling the truth in the affidavit. You do one or the other, not both. Cross out the one that does not
apply to you. See the sample completed affidavit .
Note: On the form you may see a part that deals with interpreters (not included in our samples). If you speak English, cross all this out. It does not apply to you. If you do not speak English, arrange to talk to a lawyer.
A deponent is the person who is making the affidavit. You have to identify yourself as the person who is making the statements in the affidavit.
Here is an example:
I, Tom Jones, electrician, of 132 Main Street, in the City of Vancouver, Province of British Columbia, MAKE OATH AND SAY THAT:
This deponent’s statement has to be put at the beginning of each affidavit. It identifies who you are and what your occupation is. If you are retired, you would put in “retired” or “old age pensioner.”
Knowledge Statement
The knowledge statement does two things.
1. You state whether you are the plaintiff, defendant, petitioner, or respondent.
Here is an example of what you would put in:
I am the plaintiff in this matter and have personal knowledge of the matters herein referred to.
An affidavit should not contain information told by another person unless the other person is a party to the court case.
3. This rule about having personal knowledge does not apply if the judge is being asked to make a temporary order (called an “interlocutory order”). In these situations you can make an affidavit based on information and belief . You should get legal advice before you do this. A lawyer can advise you if you can use information
and belief in your affidavit, and can tell you how to phrase the sentences. Usually the following paragraph is put in if you are able to have an affidavit on information and belief:
I have personal knowledge of the facts and matters herein referred to by me except where indicated to be on information and belief, and where so stated I verily believe them to be true
You have to indicate the specific person you are relying on for the information and belief. You also have to add a statement to the effect that you believe it to be true. For example, you would probably have to
say something like:
On or about August 30, 2004 John Smith (her husband) told me that Mary Smith had not gone to work the
day before and I believe this to be true.
Body of the Affidavit
This is the most important part. It is covered in section 4 of this guide.
Ending of the Affidavit
• You must swear your affidavit in front of a lawyer or a commissioner for taking affidavits. A court official such as a registry clerk is a commissioner for taking affidavits. (Registry staff will charge you $31 for this service.)
• You both sign the affidavit in each other’s presence at the time you swear the affidavit (promise you are telling the truth).
• It is a serious offence to make a false or misleading affidavit. The lawyer or court official must also print
his/her name below his/her signature. Check to see if a lawyer or court official has printed the name. Ink stamps bearing the name of the lawyer or court official are acceptable.
Exhibits
You may attach letters or other important documents you want the judge to consider. These are exhibits to the affidavit. Here is an example of what you can say in the body of the affidavit:
Letter as Exhibit
On July 30, 2004, I received by mail a letter from Mary Smith. That letter is attached to this affidavit as Exhibit “A.”
If you have any exhibits, arrange them in alphabetical order (i.e., Exhibit “A”, Exhibit “B” etc.).
Each page of the exhibits has to be numbered consecutively. Therefore, if you have exhibits “A” to “G” totaling 40 pages, one exhibit may contain 2 pages and another 8 pages. You start numbering with exhibit “A” at page 1 and you finish with exhibit “G” at page 40. You print in the number for each page of the exhibits. It is best to put this number in the middle of the page. Most law firms have stamps that you can put on the documents.
Exhibit stamps go on the first page of each document and they read as follows:
This is Exhibit “…… ” referred to in the
affidavit of ...........................................
sworn before me at .............................
this ....... day of ...................................
2011
............................................................
1. Follow the S.O.S. Principle
One of the keys to success is to follow the S.O.S. principle:
Simple
Organized
Short
Simple
Try to make your affidavit as simple as possible. Use simple words and sentences.
Many people think that if they make things complicated and sophisticated they will impress the judge. The judge will see through this. Judges are more impressed with a simple affidavit. Also, a simple affidavit is easier for you to prepare and to present to the court. Remember: judges prefer people to use
ordinary language.
Organized
The second principle is that your affidavit should be organized. This is the most important rule.
If your affidavit is organized, it is easier for the judge to understand what is going on. Here are some tips for being organized:
1. In most cases it is best to tell what happened in chronological order (date wise). Do not jump all over the place from one time period to another. Tell your story in a straight line.
2. Try as much as possible to give specific dates (i.e., July 13, 2005, or, the middle of July, 2005).
3. When you refer to people it is best to use their names, such as John Smith. Try to avoid using “him” or “her.” It can get confusing. You can organize your affidavit in a different way depending on the nature of the case. For instance, in a custody dispute, you would probably want to organize it on the basis of what the court considers in making custody orders. This is set out in the Family Relations Act. Get legal advice on the best way to organize your affidavit. Remember: Judges like to see facts, not broad general statements.
Short
The third principle is to keep your affidavit short. It is more effective. First, decide what is necessary to put in your affidavit. Put that in the affidavit. Don’t fall into the trap that more means better. The same is true of paragraphs and sentences. Keep them short. Sentences should be less than 10 words. If you can make sentences shorter, then do it. Edit your affidavit and break the long sentences into short sentences
This does not mean you ignore important matters. However, if your affidavit is short it allows both you and the judge to focus on the important matters. Remember: Judges want you to focus on the important matters.
2. Put in the relevant facts
The body of the affidavit should contain the relevant facts. Look at the sample affidavit and the sample completed affidavit . You will see that the paragraphs are numbered. Look at # 2. This is where you begin to put in your information and number your paragraphs in order. You can use headings, like in the sample completed affidavit. Usually it’s best to draft an affidavit in the first person. For instance, a sentence would read as follows:
I went to the appeal hearing on March 23, 2005.
Here are some useful tips:
1. The affidavit should be done on white paper (8.5 x 11”).
2. The font size and spacing should be the same as the sample affidavit of Mary Smith in this guide.
3. Consider putting headings in the affidavit to make it easier to organize. See the sample affidavit.
4. Each page should be numbered.
5. Each paragraph should be numbered.
6. If at all possible, type the affidavit.
Although in theory you can provide a handwritten affidavit, try to avoid it.
3. Avoid vague statements
Affidavits should avoid vague statements. The following is an example of a vague statement:
I met the defendant contractor John Smith on several occasions. I walked away from these meetings with the impression that he would not charge me for the extra paint put on the porch.
A better statement to put into the affidavit would be as follows:
I had a meeting with the defendant contractor John Smith on April 3, 2004 at my home in the late afternoon. He specifically stated to me “I will not charge you for the extra paint on the porch.” I relied on this statement that he would not charge me for this extra paint.
4. Take your time
Draft the affidavit over several days to give yourself enough time to think about what needs to be done. It’s not a good idea to draft an affidavit in a hurry. That won’t give you the time you need to think about it.
5. Use the checklist
Look at Resource C, Checklist. Use this checklist to make sure you have completed all the steps and done everything right.
6. Check for consistency
• Check to make sure your affidavit is consistent throughout. Make sure it does not say one thing in one place, and something that contradicts it in another place.
• Also check the affidavit for consistency with your other documents, including any other affidavits you have made.
7. Read it over
Read it over. Have a friend check your affidavit to make sure there are no typing errors and the language is clear. Then revisit the checklist to make sure everything has been completed.
People who are representing themselves often ask: What do judges look for in an affidavit?
Judges assess credibility of an affidavit based on the following factors:
• Are there internal inconsistencies in the affidavit? For instance, does the person making the
affidavit state one thing in one part of the affidavit and in another part of the affidavit state
the opposite?
• Are statements made in the affidavit inconsistent with other statements made in other
affidavits or documents outside the affidavit? Sometimes, in a rush, you may carelessly
make statements in an affidavit that are at odds with your other affidavits or documents.
This could hurt your case.
• Is the statement inherently unbelievable? If a person is late for work and his excuse is his
car ran out of gas, that is believable. However, if his excuse is that he was beamed up to
the Starship Enterprise to have dinner with Captain Kirk, that is probably unbelievable.
• Is the person biased in making the affidavit? Do the statements in the affidavit show an
obvious bias?
There are additional factors judges may consider in determining the credibility in affidavits.
• Is there a statement of conclusion with no details to back up the statement? Remember, judges like to see facts, not broad general statements.
• Are there statements in the affidavit that are evasive? In other words, does the person
making the affidavit attempt to avoid an issue or statement? An example would be that one
affidavit in the case says you and another person had a conversation on a certain day. But
you state in your affidavit that you never met that person on that day. That is true, except
for the fact that you did have a telephone conversation with that person. This is an
example of artful drafting. You should avoid this.
• Does the person use language that one would not expect a normal person to use? Judges
prefer people to use their ordinary language .
• Is the second-best evidence used instead of the first source? Even if you are allowed to
make an affidavit on information and belief, it may be in your interest to get the person
who had the original information to swear an affidavit. This is more effective than relying
on hearsay (information and belief). Please note that not all court proceedings allow
hearsay.
• Is there a lack of precision in the affidavit? Does the person making the affidavit use
imprecise dates or imprecise information?
• Are there mistakes that indicate the person making the affidavit has not read it? This would
include typing and grammatical errors.
• Are important facts left out? If important facts are left out, this may indicate the person
making the affidavit is hiding something.
This section has resources you can use to help you prepare your affidavit.
1. Where to get legal advice
2. Questions to ask the lawyer
3. Checklist to make sure you’ve done everything right
4. Sample affidavit
5. Sample of a completed affidavit
Where to get legal advice
Here are some places where you can get some free legal advice. You have to have low
income to qualify for these services. Phone the place listed and they will tell you if you
qualify financially.
PLEIS-NB is a non-profit organization and a registered charity. Our mandate is to develop bilingual educational products and services about the law for the general public in order to promote access to the legal system. Our goal is to assist the public in identifying and understanding their legal rights and responsibilities, and attaining self-help skills where appropriate, to improve their ability to deal with legal issues.
Click here to read more about how PLEIS-NB can help you know the law.
http://www.legal-info-legale.nb.ca/
Also
Wilmot Church (King Street, Fredericton)
free legal advice clinic
506 - 458 - 1066 / 452 0219
Useful tips about seeing a lawyer
Seeing a lawyer for the first time can be a bit intimidating. Here are some useful tips.
1. Bring a friend with you for moral support. Depending on the nature of the problem the friend can sit through the interview with you and the lawyer. Some types of legal problems do not lend themselves to having a friend sitting in on the interview. But at least a friend can provide you with moral support before or after the interview. Ask the lawyer at the clinic if your friend can sit in on the interview.
2. Organize all the documents in chronological order. The documents would include letters, court documents, etc. The best way is to put the documents in a three-ring binder with an index page. Tabs separating the documents in the binder are also very helpful. Remember, you do not have to be lawyer to organize documents.
3. Take the sample affidavit from this guide with you. Ask the lawyer to fill it out.
4. Briefly write out your story. It is best to type, but clear handwriting is acceptable. This story should be no more than a page or two. Really try to condense your story to a page or two.
5. Next, write out in a page or two the questions you have for the lawyer. If you don’t, you will probably forget some important questions. Also, do not be afraid to ask what you might think are “simple questions.” Sometimes, they are the most important questions. Use Resource 2: Questions to ask a lawyer. Add to that list.
6. The Law Student Legal Advice Program has a free legal information manual online that covers many areas of the law. This might give you an overview of the legal problem you have. You can refer to this after you have completed your top three priorities, which are to (a) organize your documents; (b) write your story; and (c) write out the questions you have for the lawyer. See the Law Students Legal
Advice Program website: http://www.lslap.bc.ca/manu0004.htm
Resource B
Questions to ask a lawyer
Here are some basic questions you should ask a lawyer before you draft your affidavit.
Use these and add your own questions about your case.
1. What is the style of the proceeding?
2. What are the important facts that I should put in my affidavit?
3. In what order should I organize my affidavit?
4. Who should I get an affidavit from?
5. Can this affidavit be based on information and belief?
6. Should documents be attached to the affidavit as exhibits? If so, which documents
should be attached?
7. When does this affidavit have to be filed in court?
8. Who do I have to give copies to, and what is the time limit for doing this?
No. Remember Check
1. Have you obtained legal advice from a lawyer?
2. Have you put the equivalent of the following at the top right hand corner of the style of proceeding?
M. Smith #3 June 1, 2004
3. Have you entered your name, address and occupation?
4. Have you decided to swear under an oath or affirm and adjusted the affidavit accordingly? (Crossed out the option you are not using?)
5. Have you put in the affidavit whether you are the plaintiff, defendant, petitioner, or respondent?
6. Have you put in a paragraph stating that you have personal knowledge of the matters?
7. Have you put in a paragraph stating that it is based on information and belief? Have you determined whether you can put information and belief in your affidavit?
8. Have you drafted the affidavit in the first person (i.e. “I went to the court house on Jan. 5, 2005”)?
9. Have you put in facts and not opinions?
10. Have you put in exact dates?
11. Have you typed in paragraphs that are numbered?
12. Have you kept your paragraphs short?
13. Have you kept your sentences short?
14. Have you broken long sentences into short sentences?
15. Have you used simple language?
16. Have you considered putting headings in your affidavit?
17. Have you determined whether it is best to organize your affidavit in chronological order or in some other way?
18. If you have exhibits, have you numbered them (i.e. “A”, “B”) etc.?
19. Have you attached the exhibits to the affidavit and ensured there are exhibit stamps on the exhibits?
20. Have you attached as the last page, face side up, the backing sheet?
21. Have you had the affidavit signed and sworn in front of a lawyer, notary or registry staff?
22. Has the lawyer or court official printed as well as signed his/her name? (A stamp is OK.)
23. Have you determined how many copies of the affidavit you need to have?
24. Have you filed the affidavit in the court registry on time?
EXAMPLE AFFIDAVIT
Court File Number: MC064209
IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK
TRIAL DIVISION
JUDICIAL DISTRICT OF MONCTON
BETWEEN: ROYAL BANK OF CANADA & 501376 N.B. Ltd.,
a body corporate,
Plaintiffs,
-and-
ANDRÉ MURRAY
Defendant,
AFFIDAVIT
1. I André Murray as above indicated am the Defendant in this matter as such have personal knowledge of the matters herein deposed to except where otherwise stated.
2. I Defendant André Murray, March 23, 2011 having perused a AFFIDAVIT of Gino Duguay requested of a attending Deputy Sheriff supporting Mr. Gary Steele who both together where kind enough to confirm that the Affidavit of Gino Duguay contains falsehoods the falsehood of which is blatantly false is the at Gino Duguay declared that the upstairs of the duplex is open between 31 Marshall Street entry into 29 Marshall Street in the City of Fredericton.
3. Attending Deputy Sheriff supporting Mr. Gary Steele at 29 Marshall Street in the City of Fredericton March 23, 2011 provided and affidavit for which I am pleased to provide to this Court establishing finally that the security door located downstairs separating 29 Marshalll Street from 31 Marshall Street is indeed secure and impassable except from 31 into 29 unless you have the key to unlock the door.
4. Attached hereto and marked Exhibit “A” is a copy of the subject Affidavit thereby contradicting Gino Duguay
5. This affidavit is made in response to Affidavit filed with Moncton Queen’s Bench Trial Division by the Plaintiffs and sworn by Gino Duguay containing an number of erroneous statements.
SWORN TO AT THE City of __________, )
In the County of __________________ and )
Province of New Brunswick this )
_________day of __________ 2011. )
BEFORE ME: )
)
)
) __________________________________
__________________________________ ) Andre Murray
A NOTARY PUBLIC or
COMMISSIONER OF OATHS
PROVINCE OF NEW BRUNSWICK
The relevant New Brunswick Rules of Court to read are Rule 4 Court Documents
pay special attention to Rule 4.05 Affidavits:
Follow this link ( number 4) below to the full Rule 4 of the Rules of Court:
Or this link:
http://www.gnb.ca/0062/regs/Rule/RULE04.pdf
Here is an example of a Affidavit which I filed in support of a Special Appearance Motion before Provincial Court:
January 11.2012 Affidavit Andre Murray Jurisdiction Motion
Further Reading: DRAFTING AFFIDAVITS:
A LAY PERSON’S GUIDE
(B.C. Supreme Court)
