Why a Witness Affidavit May Not be Enough in Your Personal Injury Case

What’s an Affidavit?

An affidavit is a written statement of a witnesses’ personal observations. A witness states their version of events and swears that it’s the truth.

Related: How To Write a Car Accident Witness Statement

When you’re hurt in an injury case, you might use an affidavit as a way to record your own statement. You might also use an affidavit to record the statement of another party. The hallmark of an affidavit is that it’s sworn. When you prepare an affidavit, you swear or affirm that you’re telling the truth.

What Does an Affidavit Contain?

The affidavit contains the person’s statement of events. It also includes their signature. The person who makes the affidavit can only talk about things that they know based on their personal knowledge rather than what they’ve heard from someone else.

According to Nevada Rules of Court Rule 13, an affidavit can’t be based on opinion. It can only be facts. In other words, the affidavit should include only things that would otherwise be admissible if the person testified in court. If the affidavit refers to documents or photographs, those must be attached and identified.

An affidavit typically contains a declaration that says that the testimony is the person’s true statement based on their knowledge and information. Nevada law 53.045 gives a person multiple options for preparing an affidavit in Nevada. The affiant can swear to the truth of their statement, or they can declare that their statement is true and correct under penalty of perjury. The words are slightly different if you’re preparing an affidavit outside the State of Nevada for a Nevada case.

An Affidavit Usually Isn’t Admissible at Trial

By itself, an affidavit isn’t admissible at trial. If you try to admit an affidavit at trial, the other side can object. The court will agree that the affidavit is inadmissible hearsay, and the court will prevent you from presenting the affidavit to the jury.

Related: Reasons You May Not Want to Settle Your Case

Why Isn’t an Affidavit Admissible at Trial?

The courts don’t allow affidavits at trial because they say that it isn’t fair to the parties. If you submit an affidavit, the other side doesn’t have a chance to ask the witness questions. The courts think that to fairly present the testimony of a witness, it’s only right that both sides have an opportunity to question the witness. The other side must have an opportunity for cross-examination.

Cross-examination ensures that both sides get the chance to question the witness’ memory and credibility as well as the plausibility of their statement.

The courts also believe that seeing a witness testify live is essential for the jury to be able to assess their credibility. It’s up to the jury to decide who’s telling the truth. It’s easier for the jury to weigh testimony when they’re able to look at each witness while they testify.

Also, affidavits are often incorrect or incomplete. A notary might not correctly follow the steps to complete the notary process. The affidavit might contain hearsay or irrelevant information that the jury shouldn’t see. Requiring live testimony prevents these errors from reaching the jury’s ears.

If an Affidavit Isn’t Admissible at Trial, How is it Helpful to my Case?

Even if an affidavit isn’t admissible at trial, it may still be helpful to your case. You can use an affidavit to lock a witness into their story. If the witness later testifies differently at trial, you can bring up the affidavit and question them on the inconsistency. An affidavit can also act as a recorded recollection to refresh the witness’ memory about things they may have forgotten.

Are There Any Times When an Affidavit Is Admissible at Trial?

There are a few limited circumstances where an affidavit may be admissible at trial. If you want to admit a business record or another record that a business or organization ordinarily keeps in the course of their activities, you may be able to use an affidavit of the individual to admit the business record.

Nevada Rules 51.135 and 51.175 allow parties to use an affidavit of the records custodian to authenticate a business record. The purpose of this rule is to not have to inconvenience the records custodian when their testimony is usually ancillary to the major issues in the case. If the authenticity of the record is in dispute, however, you may raise the issue with the court and ask them to rule on the admissibility of the documents.

Affidavits in a Motion for Summary Disposition

There are times when an affidavit can be critical to the case. If the other side files a Motion for Summary Disposition asking the court to dismiss the case, an affidavit can be vital to defending against the motion.

According to Nevada Rules of Civil Procedure 56(e), it’s not enough to state that the defense’s theory of the case is incorrect. Instead, you’ve got to present affidavits or other documentation of the evidence that supports your position in the case. An affidavit can come in handy when you’re preparing your response to the opposing party’s Motion for Summary Disposition.

What If a Witness Won’t Prepare an Affidavit?

An affidavit is a voluntary statement. There’s no way to coerce a witness to complete an affidavit if they don’t want to. However, if you need a witness’ statement to build your case, there are other things that you can do to get their testimony. You can send them a subpoena to sit for a deposition. You can also call them to testify in court.

How Can a Personal Injury Lawyer Help?

If you’re hurt in a personal injury case, you will want to work with an attorney to secure the best outcome possible. Your attorney knows how to prepare affidavits and how to use them to your advantage in the case.

If it’s helpful to your case for you or a witness to prepare an affidavit, your lawyer can help ensure that the affidavit is proper and thorough. Regardless of what you need to prepare your case, working with an experienced lawyer is the best way to get the compensation you deserve.