Draft Affidavit Language & Select Affiant - Next Generation Bar Exam

1. How should an affidavit establish the affiant's personal knowledge?

   By stating the facts showing how the affiant knows the matters asserted. For example, an affiant may state that she witnessed the event or holds a position giving access to the records.

2. Under 28 U.S.C. 1746, what may substitute for a sworn affidavit in federal court?

   An unsworn declaration signed under penalty of perjury in the statutory form. The declaration must be dated and state that it is true and correct.

3. What is the effect of a statement in an affidavit made 'on information and belief'?

   It does not satisfy the personal-knowledge requirement for summary judgment. Such statements do not show the affiant could testify to the fact.

4. To prove that a tenant was served with a notice, which affiant is best: the landlord, who mailed nothing, or the process server who delivered it?

   The process server who delivered the notice. The process server has personal knowledge of the service.

5. Who is the best affiant to authenticate a business record in an affidavit?

   A custodian or other qualified witness familiar with how the records are made and kept. The affiant must be able to establish the elements of the business-records foundation.

6. How should affidavit language state facts?

   As specific facts within the affiant's personal knowledge, not conclusions. Statements such as 'the defendant was negligent' are legal conclusions, not facts.

7. How should an affidavit be organized to support each element to be proved?

   In numbered paragraphs, each stating a discrete fact tied to an element. Clear organization lets the court match facts to elements.

8. Who is the best affiant to prove a fact in an affidavit?

   The person with personal knowledge of the fact. An affiant without firsthand knowledge offers inadmissible hearsay or speculation.

9. What is the sham affidavit doctrine?

   A party may not create a genuine dispute by an affidavit contradicting the party's own prior sworn testimony without explanation. Courts may disregard such affidavits at summary judgment.

10. A company's sales manager, who did not attend a meeting, signs an affidavit describing what was said there. What is the defect?

    The manager lacks personal knowledge of the meeting. An attendee should be the affiant.

11. A draft affidavit says, 'The contract was breached.' What revision is needed?

    Replace the conclusion with specific facts showing what the other party failed to do. Affidavits must set out facts, not legal conclusions.

12. Under FRCP 56(c)(4), what must an affidavit or declaration supporting or opposing summary judgment do?

    Be made on personal knowledge, set out admissible facts, and show the affiant is competent to testify. Affidavits failing these requirements may be disregarded.

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