Publication date: February 27, 2023
KIELTYKA GLADKOWSKI KG Legal has experience in preparing Affidavits in various fields for the purposes of court proceedings, mostly in cross border cases.
The Affidavit is a written statement that is made under oath. It is made by a party or witness before a person authorized to make such a statement, for example a solicitor, lawyer or court. It can also be prepared by an expert – a lawyer. It is to confirm that, to the best knowledge of the person making the statement, certain facts are true. The Affidavit form is comparable to witness statements, but must include an oath clause. This is a special type of report, which aims to establish facts signed by authorized persons, under the sanction of liability for false testimony, if the untruth was made knowingly, intentionally and concerned a significant issue.
The Affidavit is prepared for the purposes of the legal process, litigation, procedure and can cover various areas. The court treats such a statement as evidence in the case. It serves as the court’s reassurance of the facts, and the oath clause causes the court to view Affidavit on par with testimony given orally at trial.
Affidavit is used in a variety of circumstances. They can be prepared as a response to a court case. As a general rule, witnesses in court proceedings must appear in court to give oral evidence. However, in some situations Affidavit is used. The use of a written statement also occurs in the case of self-certification of the authenticity of a written will, financial statements, “restoration” of a lost or damaged legal document. It can also be filed with identity theft against creditors and banks. Affidavit also applies to statements of power of attorney, where the principal authorizes another person to act on his behalf.
A court may request an Affidavit in the course of legal proceedings, including divorce, debt, and property disputes.
KIEŁTYKA GŁADKOWSKI KG Legal prepares Affidavits in a variety of cross border cases that are used in a different jurisdiction for the purposes of court cases. Affidavits are prepared by our law firm in respect of specialised knowledge of selected parts of Polish law, including cybersecurity, data privacy, technology, transfers of IP, commercial, corporate, financial crimes, regulatory, professional negligence, injuries, an many other.
Due to the complexity of this document and the threat of sanctions for perjury, a self-written Affidavit can be problematic, so it is worth consulting a lawyer to verify the correctness of such a document. Nevertheless, some facts will be best presented by a lawyer – the chronology of activities or facts regarding the course of the proceedings and the professional knowledge of a professional increases credibility before the court and excludes the possibility of making mistakes.
The importance of Affidavit makes it necessary to have the right form. As with any document, the place and date of its preparation are marked. The heading specified at the beginning of the statement should contain the indication of the case the letter concerns and by whom it was prepared. The Affidavit is then broken down into individual parts.
In the first part, the lawyer introduces himself, includes a short description of his professional experience and qualifications – it is about concise information that is to confirm the credibility and adequate education of the person preparing the statement. Then, he declares that he is aware of the applicable provisions regarding Affidavit, which are in force before the competent court in a given case. The lawyer declares that his act is not against the law and confirms that he is familiar with the applicable provisions of the law applicable to a given case. In addition, if this has taken place, it notifies that it has read the instructions sent by the court, which contain the necessary requirements on how to prepare and deliver the Affidavit in a given case.
Subsequently, the documents provided and the legal basis and any other grounds relating to the case are listed. In addition, the most relevant legal provisions that form the basis of the Affidavit are indicated. Each legal provision applied in the Affidavit should be marked, including the legal act it originates from and its content should be presented.
The actual situation and state of facts is then described. Sometimes the instructing party sends particular questions that need to be addressed and responded. In some cases, the lawyer preparing the Affidavit is asked to present the interpretation of particular legal provisions or interpret certain intertemporary provisions. The facts are described in chronological order and should be presented in an accurate and logical manner. The described facts should be based only on the information previously provided to the lawyer, which is truthful – to the best knowledge and belief of the client or instructing party. The presentation of facts in the Affidavit prepared by a lawyer cannot be based on his personal opinion or arguments that would suggest what the outcome of the case should be. It also includes a question that was asked to the specialist by the client, to which the answer is prepared in Affidavit.
An analysis is made based on the facts. This part of the Affidavit depends mainly on the purpose for which it was prepared and on the facts. The analysis, like the description of the facts, should not contain the lawyer’s personal opinions on the merits of the case, nor should it be in the form of arguments – swearing personal beliefs about the outcome of the case and imposing one’s beliefs on the verdict on the court would undermine the authority of the court. In this part of the Affidavit, the lawyer, in a prudent manner and in accordance with the interpretation of the law, analyses the law in conjunction with the facts, describing in detail the course of consideration. He describes in detail the provisions applicable to the case with the course of the case, based on his professional knowledge. This is also the part where the lawyer preparing the Affidavit analyses the provided documents, court rulings or extracts from certain legal acts. This is also the part of the Affidavit where the lawyer preparing the latter, if necessary, quotes and refers to the applicable court rulings, previous decisions, court orders or any court cases that support the described state of facts.
In the next part of the Affidavit, the lawyer describes the conclusions of the analysis. This is a summary of the most important issues that were considered. The conclusions should be based on the previously cited provisions and remain the answer to the questions asked to the lawyer. Each of them should be listed sequentially and contain specific statements. As far as possible, the answers should be conclusive in a given sate of facts.
The final element of the report is the oath clause. The lawyer swears a written oath that the facts and matters presented in the Affidavit include his professional knowledge and that they are true. Subsequently, it declares the veracity and completeness of the conclusions presented in the document. To confirm the authenticity of the document, he puts his signature at the end.
Affidavit is a special form of statement and is not allowed in all jurisdictions, however, for example in Ireland, UK or US it can be used as evidence in court cases. In Ireland, some hearings are held using Affidavit only. On this basis, the judge can decide the case, which significantly speeds up the court procedure.