Practice Management

Motions: Using "Declarations" rather than Affidavits.

By Dan Hull

The rule is very handy here: Your three resident notaries--Nadine, Crystal and Raphael the Librarian--are in the office every day without fail, together with their notary kits, except the exact few days each year you need them to notarize something.

Not exciting. Just useful. In October of 1976, Congress passed a barely-noticed housekeeping addition to Title 28, the wide-ranging tome inside the U.S. Code governing federal courts, the Justice Department, jurisdiction, venue, procedure and, ultimately, virtually all types of evidence. 28 U.S.C. Section 1746 is curiously entitled "Unsworn declarations under penalty of per­jury".

It allows a federal court affiant or witness to prepare and execute a "declaration"--in lieu of a conventional affidavit--and do that without appearing before a notary. Under Section 1746, the declaration has the same force and effect of a notarized affidavit. Read the 160 word provision--but in most cases it's simple. At a minimum, the witness at the conclusion of her statement needs to do this:

"I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)?.

A "unsworn" declaration with the oath required by section 1746 can be almost any time you need an affidavit, e.g., an affidavit supporting (or opposing) a summary judgment motion.

Full post as published by What About Clients? on July 08, 2009 (boomark / email).