Posted on: January 25, 2010
Often in South Carolina car accident cases, there is a dispute between the drivers about the facts of the accident and whose fault the accident was. This is where a lawyer must act quickly to establish liability, gathering all of the facts before physical evidence disappears, cars get repaired or destroyed, or people’s memories fade.
One way to preserve evidence of a witness is with something called an “affidavit”. An affidavit is a written statement of the facts that the witness (called the “affiant”) signs, swearing that the statement is true, and that if it is not true, the affiant could face criminal liability for perjury. Affidavits are useful in various stages in the legal process, but the bottom line is that they preserve a witness’s recollection of the events while the witness is available and while the events are fresh in the witness’s mind.
A recent article gave some pointers for creating affidavits for use as evidence that will withstand an attack on its validity by the opposing party. Christopher M. Kelly & Laura G. Simmons, “Attacking Affidavits: Maintaining the Integrity of the Process”, South Carolina Lawyer, Jan. 2010. Here are some common deficiencies in affidavits and the remedies for these deficiencies, as pointed out by the authors.
- Meet the technical requirements. To be an admissible Affidavit, the acknowledgment must be sworn to be true and correct to the best personal knowledge of the affiant. Furthermore, the affiant must declare that the statements contained in the Affidavit are true and correct under penalties of perjury.
- The substance of the affidavit must be admissible evidence. An “Affidavit” that is based on an investigator’s interview with a witness, not sworn to by the witness, is not admissible. An “Affidavit” that is in the form a questionnaire where the affiant fills in the blanks is also inadmissible.
- Sworn statements & affidavits must be consistent with prior statements and affidavits.
- Attorneys should attack defective submissions with motions to strike or objections. If a party fails to object to the affidavit in court, technical defects within the affidavit ordinarily are normally not appealable.
When it is necessary to establish liability in a South Carolina personal injury claim arising out of a car accident, we obtain affidavits from independent witness to the accident that caused our client’s injuries. It is essential that the affidavits comply with the requirements above. There are many pitfalls in handling an auto accident claim, and it takes experience to know the technical requirements of the legal process. A technically proper and admissible affidavit is one of the many tools that a South Carolina lawyer experienced in personal injury claims can use to establish who was really at fault.
The information relayed in this blog is for educational purposes only and is not legal advice. The cases referenced and explained by the blog’s author(s) are for informational purposes only and are not intended to imply that certain, or similar, results may be achieved in each client’s case.