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July 08, 2009

Motions: Using "Declarations" rather than Affidavits.

The rule is very handy here: Your three resident notaries--Nadine, Crystal and Raphael the Librarian--are in the office every day without fail, together with their notary kits, except the exact few days each year you need them to notarize something.

Not exciting. Just useful. In October of 1976, Congress passed a barely-noticed housekeeping addition to Title 28, the wide-ranging tome inside the U.S. Code governing federal courts, the Justice Department, jurisdiction, venue, procedure and, ultimately, virtually all types of evidence. 28 U.S.C. Section 1746 is curiously entitled "Unsworn declarations under penalty of per­jury".

It allows a federal court affiant or witness to prepare and execute a "declaration"--in lieu of a conventional affidavit--and do that without appearing before a notary. Under Section 1746, the declaration has the same force and effect of a notarized affidavit. Read the 160 word provision--but in most cases it's simple. At a minimum, the witness at the conclusion of her statement needs to do this:

"I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.

A "unsworn" declaration with the oath required by section 1746 can be used almost any time you need an affidavit, e.g., an affidavit supporting (or opposing) a summary judgment motion.

Many lawyers who practice in federal courts don't know about the existence of Section 1746, (probably because so many of us practice primarily in state courts, and we stick to comfortable state practices and folkways). I wouldn't have known about it either; a Justice Department lawyer clued me in on it 15 years ago.

Federal judges understand and accept it. It saves clients, witnesses and lawyers the time, cost and aggravation of getting client statements notarized. Your three notaries--Nadine, Crystal and Raphael the Librarian, together with their notary kits--are in the office like clockwork, except, of course, the very days you need to have them witness and notarize a document. So it's a useful and convenient provision. Not exciting--but it is one of the few efficient, and reliable, moments anyone sees in the trial process.

Posted by JD Hull at July 8, 2009 12:16 AM


It is an amazement to me that this practice strikes anyone as novel, but that is only a product of my own history in practice. The unsworn declaration in lieu of an affidavit has been the default approach in California for as long as I've been in harness to the law (ca. 1981) and then some.

Practical and effective, those unsworn declarations, albeit they may lead to increased unemployment among notaries public if adopted in earnest. (Section 1746 must be due for repeal, I suppose, in the name of "stimulus.") I have been so used to them as the standard practice that I was amazed when I recently became involved in a Federal case in New Mexico and had a Very Experienced New Mexico attorney question the legitimacy of the evidence I submitted in that format. The Court, I am happy to say, was untroubled.

Posted by: George Wallace at July 7, 2009 11:46 PM

GW: It IS weird that more people didn't catch on to this one--but it's happening a lot more. Catching on. Still, no one ever talks about it. Our adversaries, once they see it when we use it--which is pretty much in every case due to our practice--start also using it as if "yeah, I knew that one". At first, though, they look at it like it's an odd thing.

I have had people question it--but always very gently. It's not the kind of thing you would make up--and it makes sense the moment you read the short provision.

Posted by: Hull at July 8, 2009 12:16 AM

"Affiant" ?! What an ugly word ! Whoever coined it deserves be "off-ed" :-)

Over here, we call the affidavit witness a deponent.

Posted by: Fergus O'Rourke at July 15, 2009 01:47 PM

This from a bunch of island dwellers who think "hockey" is played on grass (whatever that means)?

Go to your room.

Posted by: Rob Bodine at July 15, 2009 08:41 PM

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