“WELL, I DECLARE!” – OF AFFIDAVITS AND DECLARATIONS

Attorneys often find themselves in need of an affidavit or sworn testimony on a particular issue. For litigators, this commonly occurs with dispositive motions, motions seeking an injunction or other matters for which our clients bear a burden of proof.  Obtaining an affidavit presents its own challenges, as under Michigan law the person signing the affidavit must be sworn and the signature witnessed and notarized by a notary.  This can be particularly troublesome where the affiant is out of state, has no easy access to a notary or the affidavit is needed immediately (not that we lawyers ever procrastinate but . . . ).

If you practice in federal court there is a seldom-used solution I came across years ago that makes life much easier – 28 U.S.C. §1746. §1746 provides for “unsworn declarations under penalty of perjury.”  This statute provides:

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1)  If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).
(Signature)”.
(2)  If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).
(Signature)”.

You read that right – §1746 provides for an unsworn, non-notarized declaration that has the same effect as an affidavit and can be used wherever a federal law, rule, regulation or order requires something to be proven by sworn testimony.  This includes the Federal Rules of Civil Procedure and motions for summary judgment, injunctive relief or other evidentiary matters.  As long as the declaration is in proper form or “substantially” so (all one need do is copy the language of §1746) it will suffice as evidence to be considered.

While your opposing counsel may argue that your affidavit is not proper because it is not notarized, they will be easily proven wrong with the clear terms of §1746 and the numerous cases decided under it, including those finding it to be reversible error for a court to not consider a proper declaration under §1746.  In that event, you will be able to pass on this golden nugget of evidentiary procedure to them so that they may also enjoy it in the future.

Well, I declare!