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An attorney affidavit is a statement written and signed by a lawyer, then entered into an official court record — typically as a piece of evidence or testimony for a case in which the lawyer is representing one or more parties. Sometimes the affidavits are simply statements of fact, but not usually. Attorneys can almost always make general statements in person to the court, which is much more direct. Affidavits are usually the most common in situations where the clients wish to remain anonymous, at least at first; an abuse victim, for instance, may wish to file court proceedings through attorney-led filings until the case gets underway and he or she can petition the court for more formal protection. Attorneys may also use these sorts of filings on behalf of clients who are incapacitated, whether medically or psychologically. In nearly all cases the sworn statements have the same effect as testimony granted in person, and typically become a part of the permanent case record. They aren’t as common in most legal systems today as they have been in the past, and are the subject of some controversy, at least among legal scholars. Just the same, they’re accepted and permissible most of the time, though this does depend on local court rules.
In general, affidavits are sworn written statements. They’re accepted in and used by courts around the world, though they do tend to be most common in countries using English Common Law or some variation of it, which includes the United States, Canada, Australia, and India as well as Great Britain. By affixing his or her signature, a person is basically swearing that the statement is personally known to be completely true. It’s usually seen as equivalent to a sworn statement made orally in a courtroom or before a judge. An exclusively attorney affidavit is one made by or sworn to by a lawyer who is somehow involved in the case.
It isn’t common for an attorney representing a party in a legal case to submit an attorney affidavit, as most cases are premised on the affidavits, depositions and live testimony of the parties to the matter. However, there are instances in which an attorney will decide it is in the best interests of his or her client to create and file the affidavit individually, especially early in a case, perhaps during pre-trial motions or during discovery.
This is most common in situations in which anonymity may be required. This may happen in situations in which a particular witness fears the revelation of his or her identity could lead to retribution. Also, an attorney may file an independent affidavit in matters of extreme medical hardship of a client, which may be necessary when the establishment or transference of medical or durable power of attorney is sought.
The process for creating and entering an attorney affidavit is usually the same as it would be for any other type of legal affidavit, but the process doesn’t typically require formal deposition with counsel present. In fact, all that an affidavit usually requires is the written statement by the affiant with a notary present as a witness for authentication.
There is a growing level of interest in legal theory and case law review about the rather peculiar rarity of the attorney affidavit. At least in the U.S., some scholars have claimed that the practice of attorneys creating and filing their own legal affidavits simply went out of fashion between the 19th and 20th centuries. This, they argue, was due in part to American legal jurisprudence shifting away from British Common Law toward precedent-based case law that is now the standard in contemporary U.S. legal proceedings.
Other legal scholars argue that these sorts of affidavits is simply not overly persuasive during trial since it is the rough legal equivalent to an unsourced news story. They claim that facts and sworn testimony typically are much more effective coming from the parties directly concerned with the matter, be they the plaintiff, the defendant, or a witness. Any properly sworn affidavit is considered a legal statement of fact fit for admission in a court of law, though, and this means that it the full weight of penalty for per jury that any false testimony does. This weightiness, some argue, can help keep the practice pure and uncorrupted.
You will still find a lot of attorney affidavits in eviction cases in a lot of states. The attorney, acting as an officer of the court, simply states that the plaintiff is entitled to the possession of the premises because the tenant is paying rent or has broken some term of the lease.
In those cases, the attorney affidavit acts as an assurance to the court that everything has been done in accordance with the law. Such assurances are necessary (in the states that require them) because removing someone from his or her home is a serious matter and courts want to make sure things are done the right way.
I do believe the reason an attorney affidavit is so rare is because lawyers had rather have their clients go on record then themselves. Let's say an attorney files an affidavit based on client testimony that turns out to be full of lies. The attorney, acting on that testimony, might be accused of lying under oath.
No lawyer wants to do that.
For that reason, attorneys had much rather get the person giving the testimony under oat than the lawyer himself. If the witness is lying, then that will fall back on the witness and not the lawyer so long as there is no sworn statement from the attorney attesting to the truth of the matter.
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