Rules are Rules for a Reason, Part 4, Affidavits

Brevity in writing and public speaking is widely admired but rarely practiced. On November 19, 1863, two men spoke at Gettysburg, Pennsylvania, one for two hours and the other for two minutes. Can you identify either speaker or recite any part of what either said? Edward Everett, the former Harvard president and the greatest public speaker in the United States, was one speaker. The other was Abraham Lincoln. Who spoke for two minutes?

The temporary hearing is probably the briefest event in the domestic litigation process, but also a most important part. The ruling at the temporary hearing is likely to affect the order at the final hearing and events long after the litigation is finished. This is unfortunate as the temporary hearing is flawed in its concept and execution; judges decide most temporary hearings in 15 minutes on affidavits and court forms with no chance for cross-examination and little opportunity for rebuttal. Lawyers submitting long, verbose affidavits, judges permitting this abuse, and court administration requiring excessive forms redundant to good affidavits compound the problems.

The average judge reads one page of a double-spaced affidavit in a little more than two minutes, assuming she does not pause to reflect on what she is reading nor stop to compare it with another document. Consider all a judge must do within the usually allotted 15 minutes, and you understand better the judge’s mistakes and frustrations.

Your client’s affidavit for a temporary hearing should make two points: What your client seeks and why he or she should get it. If the writer understands the goals and the issues, this should take less than three pages.

Thoughts and tips for better affidavits and more successful temporary hearings:

• Judges appreciate lawyers who are considerate of the court’s time. Keep your affidavits and arguments short.
• Argue the main points and trust the judge to get the small points right.
• Write well. Write in active voice. Avoid adjectives and adverbs. Understated trumps overstated.
• Skip traditional openings and closings. No “Personally appeared before me Jane Doe who being first duly sworn deposes and says….” Make no averments on information and belief. No “And further deponent sayeth naught.
• Judges do not appreciate spouses who trash the opposing party. Avoid negative statements, no matter how true, about the opposing party unless necessary.
• Do not waste your time or the judge’s time trying to convince the judge your client is a saint or the opposing party is the personification of evil. Focus on your two goals: Stating what your client seeks and why he or she should receive it.
• Never forget each word, phrase, and sentence invites discovery requests and provides grist for the opposing counsel’s later cross-examination of your client.
• Try this model affidavit with 183 words, no passive sentences, and a 9.3-grade level. “I am the plaintiff. I seek this temporary relief: child custody, child support, spousal support, use of marital property, payment of marital debts, and payment of my attorney’s fees. John and I were married for 21 years and have one emancipated child and five unemancipated children. I have not worked outside the home for 19 years. I am the primary caretaker of the children who I homeschool. I performed the duties of a caring and responsible wife and mother. The children and I depend upon John for our financial support. John earns $160,000 per year plus a bonus and has always been a good provider. The children and I need the temporary use of the marital home, the household goods and furnishings, and my 2011 van. I cannot pay marital debts. Even with child support and spousal support, I must have an advance on the equitable apportionment of property, if the children and I are to maintain our current standard of living. I have no funds nor ability to pay my attorney without sacrificing my standard of living and that of the children.”

I solicit your comments, corrections, criticisms, questions, and suggestions.

TFM