by Frank Maconi on 27 Nov 2018

There is a lot of literature on drafting affidavits, but I think it’s worth reflecting on some of the most fundamental points.

Affidavits are very, very important.

Good affidavits can make your case. Bad ones can cause your case to end in disaster.

These days most evidence in chief is given by affidavit – the glaring exception being the criminal jurisdiction, where direct oral (or viva voce) evidence is preferred and still the norm.

Drafting good affidavits is an essential part of all litigation. It is a skill that can be learnt to a certain point.

I don't profess to be an expert on drafting affidavits. I do like to keep in mind a few pointers that I want to share with you.

1. Ask ‘why’. Even before putting pen to paper, you should ask yourself the ‘why’ (in other words what is the purpose) of the affidavit. You might think this is obvious. It’s not. I always ask myself questions along the lines of ‘why do I need this affidavit?’, ‘what am I seeking to prove?’, ‘is there another way to prove the same thing?’ and ‘how will it advance my client’s case?’ Remember, affidavits (even the ones already filed in court) are not evidence, until they are read or until you tender the affidavit through a witness. So always ask ‘why’.

2. Put yourself in the witness’s shoes. If you decide you need an affidavit from a witness, put yourself in their shoes. Use their language and expressions. Don’t be technical or use legalese – no one is impressed, and it may detract from the persuasiveness of what a witness is trying to say. Don’t present arguments – save that for submissions. Do show their account of what happened, how it happened and where it happened. Perhaps, you are better to start with a witness statement before drafting an affidavit. Witness statements have the advantage that you can record everything the witness wants to say and you can use the important points later on for the affidavit.

3. Consider the contents. Generally, a witness is entitled to swear to what they saw, felt, touched or tasted and, in some cases, to what they heard (remember the rule against hearsay and exceptions to the rule). That doesn’t mean a witness should swear to everything under the sun. The contents of an affidavit will vary. Try to draft the affidavit so the words given by your witness support your client’s version of a fact in issue.

4. Remember the rules of evidence. As with all evidence, the rules of evidence apply to affidavits. Remember the three pillars of (1) relevance; (2) admissibility; and (3) weight. Think of each of these when drafting your affidavit i.e. (1) ‘is the statement relevant to a fact in issue?’ (2) ‘is the statement properly admissible or does it breach a rule of evidence?’; (3) ‘how much weight is a court likely to put on the statement?’. 

5. Who is the deponent? It’s important to correctly identify the deponent of an affidavit. This includes drafting their full name, address and occupation. If the witness doesn’t want to disclose their address, it can be care of your office. The first thing the courts will notice is who the person swearing the affidavit is. This anchors the court to the paragraphs that follow and to the general narrative of the hearing. 

6. What about authority? Your first paragraphs should identify the authority of the person swearing the affidavit. Be careful the person swearing actually has authority to do so. Does Joe Blogs, solicitor have authority to swear the affidavit on behalf of client x? Does Ms Smith, Director of company Y, have authority to swear the affidavit on the company’s behalf? You would be surprised how often this issue is overlooked.

7. Be persuasive. Being persuasive means that your client’s case is more convincing than the opponent’s case. Persuasiveness comes from contents, but also from form. Try to be clear, simple and logical when drafting your affidavit. Structure it so one paragraph is used for one fact at a time.

8. Always be truthful. Being persuasive is only half of the story. The reason I have underlined the word truthful, is that you and your witness must always be candid and truthful with the court. Must. Remember your professional duties. But also remember that witnesses who swear affidavits are liable to be cross-examined by the other side. If they are found to have exaggerated (or lied) the result could be disastrous for your case.

9. No opinions, please. Unless the person swearing the affidavit is an expert, or you provide lay opinion evidence, avoid opinions in affidavits. Don’t even use the expression ‘I opine’. Opinions are largely irrelevant and inadmissible.

10. Things to avoid. You should also avoid the following:  

11. Think of your audience. The consumer of your affidavit is a judge. Make the affidavit easy to read, logical and concise. Be chronological and use subheadings.

12. Complying with directions and timeframes. I think it's important to comply with directions in terms of filing and serving affidavits. It shows you are on top of your case. It also gives the other side a fair opportunity to prepare their own material. If you are short of time, ask for an extension. You may need to have the matter listed for further directions.

A final word.

Remember that both you and the other side can object to an affidavit. This needs to happen before the affidavit is read or tendered through a witness.

When I want to object to affidavits, I ask my solicitor to write to the opposing solicitor and foreshadow that objections will be taken. I also like to prepare a table of objections that I use from the bar table.

When you object to contents in affidavits, effectively you are applying to strike out parts of the affidavit in question. Take the judge through your objections slowly. Don’t rush. It will take time, but it may tip the scales in your client’s favour.

Drafting good affidavits can be a complex task. You can always ask your counsel to settle affidavits before they are sworn.

I hope you find my pointers useful the next time you are drafting an affidavit.

by Joelene Nel on 8 Oct 2018

In 2018 local lawyers came together for support and learning from each other in the GCDLA mentoring programme – GLAD.

Gold Coast Lawyers Achieving Development [GLAD] is a GCDLA initiative which matches lawyers who are seeking support, guidance and mentoring with those lawyers offering their time, experience and knowledge. During the course of the year regular breakfasts were held where everyone in the GLAD programme met up to explore those connections. Outside of the breakfasts the mentors and mentees are encouraged to have on-to-one meet ups, phone calls and general ongoing communication.

At the first breakfast we shared answers to questions to help us to get to know each other : What used to be your biggest weakness? Is this where you thought you would end up? Who else do you recommend I connect with? During the year we welcomed guest speaker, Kylie Sprott, who shared with us some of the work she does as an inspirational leader and transformational business advisor. GLAD members were also provided with resource material; a mentoring toolkit, to help them keep focused and work through developing their mentoring relationship.

Feedback from members of the GLAD 2018 programme included:

by Joelene Nel on 5 Oct 2018

We are nearly at the end of our mentoring breakfast series for 2018. After a successful 2018 year of the GLAD mentoring program, we are pleased to announce that we will be running this program again in 2019.

For those who are interested in joining GLAD, whether you are a senior solicitor wanting to mentor or a junior or have changed practice areas seeking a mentor, please click on the link below to complete the form:

GLAD EOI MENTOR AND MENTEES 2019.pdf

The closing date for expressions of interest is 1 December 2018 in order that the program can commence in early February 2019.

There is a responsibility on lawyers to make choices about what organisational culture they want to be part of…’ said Queensland Law Society CEO, Rolf Moses when he spoke at the recent GCDLA Wellness breakfast. Rolf also spoke about the conscious awareness that needs to happen around wellbeing so there can be education around this topic and ultimately change.

Anna Morgan, Senior Associate at Maurice Blackburn, spoke about vicarious trauma and the cumulative effect that it has on lawyers when we hear our client’s stories over and over again. She also spoke about the ABC’s of self-care, A= awareness, B=balance, C=connection.

The final panel speaker was Cliff Battley a local clinical psychologist who also does work around self-esteem, anxiety, stress and helping people work towards long-term positive change. Cliff reminded us that we should be preventative in our approach to our wellbeing, not curative. In the same way you take your car for a service every 6 months, we should be checking in with a psychologist regularly about our mental wellbeing.

The morning was well attending by a number of local practitioners and it was especially encouraging to see young lawyers being part of this important conversation.

The panel discussions was followed by a session run by Rolf Moses training lawyers, who are supervisors and leaders in their firm, about how to identify, support and manage the wellbeing of their staff.

It was an insightful learning experience with many helpful strategies to implement.

If local firms or organisations are interested in Rolf Moses attending the Gold Coast to run another supervisor training course, please get in touch with us at: info@gcdla.com.au

Thanks are extended to those who presented and attended and a special vote of thanks to Minter Ellison who extended the use of their office to us and put on a delicious spread for breakfast.

If members have suggestions or ideas about future events for the GCDLA please get in touch with us at: info@gcdla.com.au