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August 16, 2007

Redux: Sensitive Litigation Moment No. 3: "Declarations" as Substitutes for Affidavits.

In 1976 Congress passed a barely-noticed housekeeping addition to Title 28, the part of the U.S. Code that deals with federal courts. Among other things, 28 USC section 1746 allows a federal court affiant or witness to prepare and execute a "declaration" rather than an affidavit--and do that without appearing before a notary. Under section 1746, a "declaration" has the same force and effect of a "regular" notarized affidavit.

Many lawyers who practice in federal courts don't know about the existence of section 1746. I wouldn't have known about it either--a DOJ lawyer clued me in about it years ago. But an un-notarized declaration with the simple oath required by section 1746 can be used any time you need an affidavit, e.g., an affidavit supporting (or opposing) a summary judgment motion. A useful and convenient rule, which makes you feel like part of a special cult when you use it. Federal judges understand and accept it. It saves witnesses and lawyers the time, cost and aggravation of getting client statements notarized. Notaries, however, don't talk about the provision much.

Posted by Holden Oliver at August 16, 2007 08:23 AM


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