Always use the words of the witness when writing an affidavit

A key trap for lawyers who are drafting affidavits for others to swear is to avoid using the words and language of the witness. Instead, the lawyer will substitute their own language (and often will “translate” what the witness has told them into more grandiose language). This practise is to be avoided.

An affidavit is the sworn evidence of the witness, not of the lawyer. It should use the words of the witness. Of course a good lawyer will write the document in a format that is accessible – the affidavit should be an ordered, digestible, logical statement of the witness’s evidence, not merely a transcript of the lawyer’s interview with them. And excessive colloquialism should be avoided because an affidavit is a formal document (although if the witness cannot find an alternative expression, the colloquialism should remain).

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Using the words of the witness is important because the witness can be cross-examined on the words of their affidavit. If they do not know what a word means – or suggest to the cross-examiner that the words are their lawyers or that “I wouldn’t have put it like that” – confidence in the affidavit can be undermined. If this occurs, the weight afforded to the affidavit as evidence may be reduced.

Conversely, if the affidavit does seem to faithfully reflect the words of the witness, the court can have confidence in that affidavit as a carefully prepared and accurate piece of evidence, put together calmly and outside the pressure of the witness box or stand. It is likely to be afforded significant weight in these circumstances.

An excellent example of using the words of the witness can be found in Hugh Grant’s witness statement to the Leveson Inquiry in 2011. The whole language of the witness statement sounds like it is Hugh Grant speaking (as it is). The statement begins:

Introduction

3. I’d like, if I may, to make this statement wearing four hats. First as a normal person who used occasionally to buy and read popular newspapers. Then as someone who became a subject of interest to those papers. Then as someone who became a student of those papers – of their methods and of their influence over the police and government. And finally as someone who takes an interest in how our laws might protect public interest journalism while dealing with the abuses of some non public interest journalism.

First Hat – Normal Punter

4. Growing up, if my brother or I happened to have bought a copy of the News of the World my mother would say, “How can you bring that filth into this house? Then, after a pause: “After you with it.” And I suppose that was my attitude to papers like the News of the World for the first 33 years of my life. It’s probably the attitude of most people. (Or was, until July.) That they were a bit of largely harmless fun.

The witness statement continues in a similar vein, but goes on to make some strong points based on the history that Hugh Grant has set out. The reader is left in no doubt that the words of the witness statement and the opinions expressed in it are those of Hugh Grant. In consequence, the witness statement is a compelling piece of advocacy.