Drafting Affidavits: What Not to Do

A skill that is overlooked in law school is the art of affidavit drafting. We spend much time reading judgments, discussing pleadings, and writing submissions. We do not learn how to take our client’s version of events and put it into writing in a way that is acceptable to the court. Yet, when drafting affidavits that form the backbone of an application there are many lawyers that forget about the rules of evidence that do, in fact, apply to affidavits.

It is our role and obligation to act as “evidentiary gatekeepers” when drafting affidavits: Tasci (Re), 2020 BCSC 1438 at para 59.  This guide is not meant to serve as instructive on the principles of evidence but will discuss certain issues that arise out of evidence law. It is important to ensure you understand when certain evidentiary rules and their exceptions will apply to your client’s affidavit. This guide provides the top mistakes that lawyers – yes, many senior counsel are guilty of drafting bad affidavits – make when drafting affidavits.

1. Do Not Make It Long and Complicated

Many of us start out with the idea we will keep the affidavit straightforward but after a few rounds of revision, it has taken on a life of its own. However, drafting in a simple and organized way makes it easier for the reader to follow your train of thought. This helps you ensure that each paragraph has a purpose, you have not muddied facts together, and, when read out, the affidavit sounds like your client.

Remember, the affidavit is to be written in your client’s voice. Yes, you may take certain liberties to polish their language but if doing so changes the tone or purpose of the statement, you have gone too far. A general rule of thumb for affidavits is to avoid writing paragraphs longer than two to three sentences.

If you can be chronological and linear, you will be able to present your client’s evidence more cohesively. Use the same defined terms as in your notice of application (if applicable) and use names rather than vague pronouns. If you have specific dates of events, use them. It is also helpful to use headings to group facts that relate to aspects of your notice of application.

2. Do Not Include Speculation

One of the most common mistakes that appears in affidavits is the inclusion of speculative or opinion-based statements. Affidavits are for providing facts, along with supporting documentation if available, to support their position. The facts an affiant can swear to, just as if they were giving viva voce evidence, are things they saw or did. Many lawyers find it difficult to explain to their client that they cannot include a certain statement because the client has no evidentiary backing or reasonable grounding for the statement. Speculation or beliefs are not admissible: McMahon v Harper, 2017 BCSC 2328 at para 110.

3. Do Not Include Opinion

Much like allowing a client to speculate, many counsel succumb to pressure from a client to express their opinion of a matter in their affidavit. Your job as the drafter is to neutralize the language of opinions. This means you look for the kernel of factual basis to the client’s opinion and write the paragraph from that perspective. If there is no kernel of factual basis and only the client's opinion, then you exclude that paragraph from the affidavit: Tasci (Re), 2020 BCSC 1438 at para 60.

4. Do Not Include Emotion

This is particularly important in family law as a client’s point of view on the legal issues can be skewed by the emotional impact of the situation. It is not uncommon for counsel to allow the emotions of a client to creep into the affidavit, but this is not appropriate. One way to spot inappropriate emotional language is to watch for excessive adjectives that are used in describing an opinion of another party: LMU v RLU, 2004 BCSC 95 at para 40, citing Creber v Franklin, [1993] BCD Civ 159-03, [1993] BCWLD 2255 (SC) at paras 8-9. Allowing character attacks or personal commentary about the other party’s character to find its way into an affidavit will end with content being excised and may negatively impact your client’s credibility.

5. Do Not Include Argument

Similar to the points on opinion and speculation, affidavits are not the place for your client to make their argument – that is what your submissions are for. Affidavits should also not be an opportunity for you to spin the client’s version of events into a legal conclusion: Tasci (Re), 2020 BCSC 1438 at para 60.

6. Do Not Include Hearsay (*without an admissibility exception)

It is a generally accepted principle that hearsay is inadmissible but for some exceptions. Drafting affidavits is no different. If the person who made the statement is able to swear an affidavit confirming what they said, have that person swear an affidavit. It becomes even more difficult when a client brings you double hearsay about a material fact at issue.

For example, if the client tells you about a conversation that their business partner or mother had with their now former spouse, that is not an appropriate inclusion in the client’s affidavit. Seek out the business partner or mother to swear an affidavit as to what they said and heard directly.

That said, on interlocutory matters, a client could state what they believe to be a fact based on external sources but you must make note of this belief specifically. You will see in the example affidavit the format of such a statement highlighted in green.

7. Do Not Use Inadmissible Documents as Exhibits

Even when we include documents as exhibits to an affidavit and they support our client’s position, we must still ensure that they are admissible. This is important if you are entering the document as an exhibit and are doing so as proof of its contents. The person swearing the affidavit must have some kind of firsthand knowledge, either from drafting the document themselves or learning about the document’s contents by the author or someone with direct knowledge of the document, when referring to a document for the purpose of establishing the truth of the contents of the document: LMU v RLU, 2004 BCSC 95 at paras 31-37.

8. Do Not Add Exhibits After Witnessing

You must ensure all exhibits you intend to have included in the affidavit must be attached and confirmed by the client before they sign the affidavit. You cannot simply add an exhibit after the client has sworn or affirmed the affidavit on the promise you will have a copy of the bank records from them before you need to file. You must have all documents before you proceed with swearing or affirming the contents of the affidavit, which includes all pages of the exhibits.

9. Do Not Forget to Number All Pages

When you have added all the exhibits to the affidavit, do not forget to number the pages. If you have an assistant, this is something they will likely be helping with. As an articled student, this very well may be one of your tasks. Numbering the pages is an important and helpful task. It allows you (or your principal) to navigate sometimes lengthy affidavits by page number while making submissions.

10. Do Not Leave SWEAR (OR AFFIRM) in an Affidavit

Many lawyers leave in SWEAR (OR AFFIRM) in an affidavit. This is not appropriate as they mean two different things. Speak with your client and administer the oath they choose, ensuring the affidavit reflects their choice.

The affidavits shown below include errors for educational purposes. Be sure to click on the comments in the PDF for explanations about which of these statements can and can not be used in this type of document, and why.