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August 04, 2011
Sensitive Litigation Moment #1: In Federal Courts, Use Declarations--not Affidavits.
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Crystal, The Missing Oversexed Boozy Notary.
The rule is very handy here: your three oversexed resident notaries--Nadine, Crystal, and Little Sammy the Librarian--are in the office every day without fail, together with their goofy little 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.
(from past posts)
Posted by JD Hull at 12:00 AM | Comments (0)
August 03, 2011
Are We Not Men?
I peered hard into the blackness, but could distinguish nothing.
“It is a man,” the voice repeated. “He comes to live with us?”-HGW
Posted by JD Hull at 05:53 PM | Comments (0)
August 02, 2011
An Eternal Reason to Live.
"They don't believe in this love of mine..."
Posted by JD Hull at 11:50 PM | Comments (0)
Some, Too, Are Talented.
"All heiresses are beautiful." --John Dryden
Dylan Lauren (1974- )
Dryden (1631-1700)
Photo: Rabbani & Solimene
Posted by JD Hull at 11:47 PM | Comments (1)
August 01, 2011
Debt Ceiling Deal Done. Obama Tax Raise Bid Shut Down. Are We Yanks Short-Sighted Tools or What?
It's not over yet. But see Washington strikes deal on debt ceiling, by David Espo, Associated Press. It begins:
WASHINGTON — Ending a perilous stalemate, President Barack Obama and congressional leaders announced historic agreement Sunday night on emergency legislation to avert the nation's first-ever financial default.
The dramatic resolution lifted a cloud that had threatened the still-fragile economic recovery at home — and it instantly powered a rise in financial markets overseas.
The agreement would slice at least $2.4 trillion from federal spending over a decade, a steep price for many Democrats, too little for many Republicans. The Treasury's authority to borrow would be extended beyond the 2012 elections, a key objective for Obama, though the president had to give up his insistence on raising taxes on wealthy Americans to reduce deficits.
Posted by JD Hull at 11:24 PM | Comments (0)