When composing your affidavit, there are a few things of which you need to be aware in order to insure that your affidavit meets the criteria of what the law views as being a valid affidavit. Affidavits are testimony that set out facts. They cannot state conclusions of law and they cannot be argumentative. If an instrument does either of these, it does not qualify as testimony. Regardless of what it is called, it does not qualify as testimony by affidavit in a court of law. The following list of characteristics and properties comprise those which should be fundamental to any affidavit that you compose:
- An affidavit should only state facts ("truth") on the basis of firsthand, personal knowledge, not conjecture, theory, or hearsay. The facts stated must express the direct knowledge of the affiant (not "information and belief," which is hearsay).
- The affidavit should not be argumentative, that is, they should not make legal arguments. You only want to lay out the facts in an unequivocal manner such that your adversary (or a judge) will have no trouble understanding anything that you are asserting as being your truth. 3 The affidavit must not draw conclusions of law. If written properly, the conclusions you want drawn from the presentation of your affidavit should be apparent and self- evident. When composing an affidavit, make either short, positive statements of fact and/or negative averments. Place the burden of proof on your opponent. An averment is a formal statement or declaration asserting some fact or truth. A negative averment is an assertion in which a negative is asserted. For example, if your opponent (and/or the court) assumes a fact about you which is untrue and which has not been entered into evidence, a negative assertion will force your opponent to provide the evidence on the record, or be estopped from making the positive asser- tion. Rather than stating an opinion as a negative: "I did not run a red light." Instead state, "I am not in receipt of a verified complaint naming an injured party as a result of any of my actions." (The implication being: the action of running a red light.) If there is no verified complaint from an injured party, there is no case. In other words, there is no claim upon which relief may be granted.
- The affidavit must be certified (witnessed) by an officer of the state authorized to administer oaths, usually a notary public. Or a signed witnessing by two or three people who personally know the affiant firsthand to be the person he (or she) is claiming to be is sufficient under the common law for a sworn verification. If it is not so sworn, it will not be considered to be a verified affidavit. In addition, each page must be signed (usually at the bottom right hand side) by the deponent (the person making the affidavit).
- The affidavit should have all paragraphs numbered, for the purpose of identifying particular points or passages for future reference should a rebuttal by the opposing party be attempted.
- Your affidavit should contain as many points of fact as possible to state your truth, each of which must be rebutted under oath by your adversary; the more points, the more formidable.
- An affidavit constitutes one of three kinds of testimony, the other two being a deposition and direct oral examination. Additionally, it stands as uncontroverted evi- dence (or truth) in the matter if not timely rebutted point-for-point by a proper counter affidavit executed by the adverse party.
- The affidavit must be executed with the following verbiage as being sworn "true, correct, and complete," that is, under oath, defining the degree and nature of the com- mercial liability being claimed by the affiant for the veracity, accuracy, relevance, and verifiability of everything stated in the document.
- An affidavit can be invalidated or nullified only by being rebutted point-for-point by a counter affidavit sworn "true, correct, and complete." Your affidavit will stand as the truth concerning each point that is not rebutted by counter affidavit as above; the entire affidavit stands as the truth in the matter if it is not answered at all.
- Your affidavit will stand in full as the judgment (application) of the law (under common law) if your adversary fails to rebutted any or all of the facts so stated by counter affidavit as above; this invokes execution of the law concerning the points in the affidavit that are not expressly rebutted in a counter affidavit.
- To be valid, your affidavit needs to contain an express certification of the facts contained therein by the affiant. An exhaustive swearing used as the closing statement in a commercial process would be: "I, the undersigned Affiant, swear on my own commercial liability, that I have read the foregoing instrument and know the content thereof and that, to the best of my knowledge and understanding, it is true, correct, complete, and not misleading, the truth, the whole truth, and nothing but the truth." A less exhaustive, but still very binding closing statement is: "I certify that the foregoing is true, correct, complete, and not misleading." It's interesting to note that use of the phrase "true and correct" is not the same as "true, correct, and complete." "True and correct" is perjury by omission as to every material matter; whereas the addition of the word "complete" alludes to the aspect of the material matter of the statement. Finally, always place a reservation of rights before (above) your signature: "Subscribed and sworn with all rights reserved, without prejudice, no value assured," or something similar. By making your choice of law known through your affidavit, you are challenging the jurisdiction and venue of the setting, be it in a court of administrative law or the court held out on the street by the attending officer, who presumes you to be within his jurisdiction. When you properly rebut the presumption, the fictitious charges (if they indeed are such) miraculously disappear!
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