Drafting Persuasive Affidavits
Richard Mahler
Accredited Specialist – Family Law
Firm Principal – Mahler Family Law
A paper presented at the Inaugural Darling Downs Family Law Intensive held in Toowoomba, September 2008.
Introduction
Lawyers are trained in the art of using words (both spoken and written) to persuade others, in particular the Court, other lawyers and, at times, other parties to a dispute. An Affidavit is a sworn statement of evidence and as such is one of a lawyer’s best tools in the art of persuasion. A well drafted Affidavit not only provides the Court with a statement of relevant facts to be used as evidence in its decision-making process, but can also have the indirect effect of facilitating future communication and negotiation between the parties. Therefore, the issued of drafting Affidavits has direct relevance to the theme of the Inaugural Darling Downs Family Law Intensive in Toowoomba, which is “building better working relationships to assist parents and others achieve better outcomes for children”.
The immediate benefit of drafting a persuasive Affidavit is that it is more likely that a favourable outcome from the Court will be achieved. Conversely, a poorly drafted Affidavit containing irrelevant “low quality trash” (as I heard described by one senior Barrister at a recent Hearing) of baseless allegations, does not assist the Court and only serves to waste the Court’s time and resources (which never promotes a more favourable outcome for a party).
A significant secondary benefit is the effect that a persuasive Affidavit will have on the parties to the dispute. Most Lawyers can recount stories of a clients pouring over and Affidavit prepared by the other party and becoming highly agitated, asking “how can they get away with telling the Court so many lies?”. This scenario outlines the fact that Affidavits can impact upon the emotional wellbeing of parties, which in turn affects their willingness and ability to negotiate effectively and thus fully utilise the services of Alternative Dispute Resolution (“ADR”) providers. As with the Court, inflammatory or “trash” comments do not aid negotiations but only serve to polarise the parties and thus reduce the overall effectiveness of the ADR process.
In this paper, I discuss various tactics that lawyers can incorporate in order to draft more persuasive Affidavits and thus have a greater potential to achieve better outcomes for their clients.
The rules of evidence
The rules of evidence are Common Law (judge-made) principles that have been developed for over a Century to ensure that the Court can adequately test any evidence brought to it.
Section 69ZT of the Family Law Act is, in my view, one of the most misunderstood points of family law. The Section provides that the rules of evidence do not strictly apply to children’s cases. However, the basis of its inclusion into the Act was to limit endless objections to evidence at the commencement of a Trial – not to give lawyers Carte Blanch to fill their clients’ Affidavits with groundless allegations.
Furthermore, many lawyers fail to recognise the importance of Subsection (2) which allows the Court to give no weight to evidence that would ordinarily be inadmissible under the rules of evidence. It is therefore important for lawyers to challenge their clients in order to test the validity and relevance of alleged facts that are to form part of an Affidavit. Therefore, the vast majority of evidence which fails to adhere to rules of evidence will not be given any weight by the Court and will simply slow down (and thus frustrate) the Court in its decision-making process and, ultimately, be far from persuasive. I suggest that a relevant exception may be where there is a reasonable likelihood that a child is at serious and imminent risk of harm.
Relevance
It is hardly conducive to a property settlement negotiation or an ongoing workable parenting arrangement to reference trivial grievances or include fabricated events or crimes in an attempt to gain a more favourable outcome at Trial. I have heard members of the bench dispel the myth that putting a “pink elephant” before the bench means that the seed has been planted in a judge’s mind, regardless of the legitimacy of such an allegation. In fact, I have heard members of the bench indicate that all this does is aggravate the Court and place it on notice that the Affidavit may simply be full of rubbish.
Federal Magistrate Slack recently commented in his paper “Advocacy in the Federal Magistrates Court of Australia” that, “There is a duty [on lawyers] to exercise care by testing any instructions before making allegations of misconduct against anyone.” Thus, we see that including such comments at the request of a highly emotive and possibly vengeful spouse without first testing the accuracy of such statements great prohibits the progression and speedy resolution of the matter. Where there is an “Archilles heel” in the case, plead it clearly and concisely, as this then essentially disarms the other party from using it by surprise, and puts the Court on notice that it is unlikely that the deponent has any relevant “skeletons in the closet”.
In any event, an outcome that is fair and equitable for both parties and in each parties’ best interest is, in my experience, generally attained through joint negotiation and compromise on every detail rather than the decision by the Court taking a relatively “broad brush” approach, given the inherent limitations on time and resources.
Opinion
Affidavits that include speculation and the opinion of those not in a qualified position to provide such, are not relevant to litigation. The Court is the one to make inferences from evidence and to reach conclusions as to the matters of fact and law. It is not the place of the parties, or their lawyers, to draw conclusions or include legal submissions in Affidavit material.
Hearsay
There is one school of thought that says that at an Interim Hearing effectively “anything goes”, but that at a Trial the Affidavit material must be drafted mores strictly. While opinions on this topic will vary, I find that in practice it is always best to adopt a common sense rather than strict approach. Where information falls within the ambit of what can be reasonably imputed knowledge in all of the circumstances, then it can probably go in; otherwise, leave it out. I have adopted the motto: “When in doubt, leave it out!”
Should baseless allegations founded upon hearsay be responded to? It is true to say that any allegation that is not responded to may be deemed admission by the other party as to its authenticity. This is probably why lawyers go to great lengths to respond to each and every allegation raised by the other party. In my view, it is appropriate to succinctly respond to such allegations; however, parties should be counselled against falling into the trap of “fighting fire with fire” and descending into a mud-slinging contest that will not assist the Court one iota in its decision-making process.
Start Early
An Affidavit can be much more than a sworn statement provided to the Court. When drafted at the commencement of the retainer, if can be used by lawyers to “proof” their client so that lawyers can ascertain the merits of the case and fully apprise themselves of the facts of the matter. The more correct the details, the more chance of achieving a just outcome. A draft Affidavit can also be a useful reference at a Conference or Mediation, as it should set out the chronology and facts of the matter and (in part) the Orders the party is seeking, which will ensure that negotiations are based on agreed facts and rational expectations rather than vengeful half-truths and demands concocted by the client in the heat of the moment. Getting the facts of the matter correct also assists lawyers in providing proper advice to their client and managing realistic expectations. Therefore, in my view, it is best practice that lawyers begin to develop a chronology at the initial client interview.
Preparing a rushed Affidavit, prepared just before a Court Hearing, can complicate the thinking process of a party. In my experience, if the matter has been on foot for some time, my clients cannot always recall each specific event as clearly as they did at the commencement of the retainer, or cannot think quite as impartially once proceedings have commenced. Thus, a tardily prepared Affidavit can result in a poor or inaccurate understanding of the matter and thus an unrealistic or unjust expectation by the client. This can also necessitate undue stress upon the client and extra expense by way of extended and unnecessary communication in clarifying information, instructions and advice.
An additional benefit of preparing early is that it allows for appropriate time to be taken to ensure that the client understands the content and language used in the Affidavit and “owns” the document rather than hastily casting an eye over it prior to swearing to it. This will save embarrassment for lawyers and their client in avoiding having the party being clearly unfamiliar with their own Affidavit when pressed under cross-examination, which obviously adversely affects the persuasiveness of their case.
Annexures
A common message that lawyers hear from the bench is to avoid “Trial by Annexure”. The only material annexed to an Affidavit should be that which gives evidence in relation to the issues in dispute, and which cannot be adequately dealt with by disclosing the document to the other party. The vast majority of correspondence between lawyers falls into the former category!
Section 131 of the Evidence Act 1995 (Cth) (“Evidence Act”) prohibits an Annexure from containing any document in connection with attempted negotiation for settlement purposes unless the document included a statement that stated it was not confidential, the other party has expressed or implied consent to the document’s inclusion, the document was created in relation to power abuse or illegal activity, the document can shed light on power abuse, illegal activity or misleading information, or if the document is relevant to the issue of costs.
One final tip for Annexures is to use colourful tabs to differentiate them (particularly if there are more than a couple of Annexures). In short, draft an Affidavit from the perspective of the reader and make it as user-friendly as possible to navigate through the document. Thus, write to the intended audience – the bench.
Run a positive argument
Lawyers have a duty to present any relevant facts to the Court in respect of improper conduct by a party. However, they should remember that an allegation that cannot be substantiated by independent evidence generally only serves to inflame the other party, does nothing to further their client’s case and runs the risk of putting the Court offside. In my experience, a persuasive case generally revolves around running a positive argument as to why a party should receive a certain property settlement entitlement or why the other party should receive a lesser property settlement entitlement or why a child should be kept away from the other party.
In children’s matters, the paramount consideration is what is in the child’s “best interests” as per Section 60CC of the Family Law Act 1975 (Cth) (“Family Law Act”). To show the Court that a party does not view this as simply a “who’s the best parent?” contest, they should refrain from unhelpful “parent bashing” and instead include some positive aspects of the other party to illustrate to the Court that the party is not selfishly tunnel-visioned as to what is in a child’s best interest. Preventing a child from living with a less-than-perfect parent is not necessarily in a child’s best interest and it would be best for a party to be supportive of a child’s relationship with the other party to the extent to which it is in the child’s best interests. In essence, the merits of a party’s case must be established rather than simply pointing the finger of scorn at the other party.
Avoid humour like the plague
Another writing style I would caution against when preparing an Affidavit is the use of humour. The medium is not befitting the context in which this document will be read. It may even be inferred by the Court that the party is not taking their matter seriously. I can only assume that some lawyers think that traces of light humour or joviality will make their material more memorable to a judicial officer who has read many an Affidavit before.
I would suggest that a well-worded and concise Affidavit can be recalled readily enough by the bench and would think this a more favourable circumstance that the bench recalling a party’s peculiar sense of humour (or lack of it) and perhaps inferring that the party has a lack of respect for the Court and/or the proceedings.
One further point, let Counsel put the final spin or twist on the case (and perhaps adopt a little humour). Adding a touch of humour in an Affidavit runs the risk of taking some of the steam away from Counsel when addressing the bench.
Structure & Style
The Family Court of Australia and Federal Magistrates Court of Australia (collectively “Family Law Courts”) have limited resources to give each matter, and thus a well drafted Affidavit in its very style and structure should employ strategies to minimise the time spent in perusal in order to avoid frustrating the bench, thus, being as persuasive as possible. It is also important to set out at the beginning of an Affidavit what the proceedings are about and what the deponent is seeking, so that all subsequent material can flow on from those two propositions in a logical and orderly fashion.
Length
The length of an Affidavit should reflect the level of complexity (or lack thereof) involved in the case. Therefore, an Affidavit should only reference material that will highlight the issues in dispute and support the Orders Sought. I have heard at least one member of the bench make the comment as to Affidavits that “short is good!”.
Paragraphs
The paragraphs used in an Affidavit should be numbered and in 1.5 paragraph spacing for ease of reference and sub-headings should be used to sum up the contents of each section and orient the reader in what can sometimes be quite a lengthy document.
Sentences
The sentences used in an Affidavit should be short and succinct, as extended waffling phrases and grandstanding dialect is not only irritating to the reader and confusing to the deponent, but it takes up more of the Court’s time and variably frustrate the bench. A well-phrased, succinct paragraph will often do more to illustrate a point than multiple pages dwelling on the same topic. However, using short and succinct sentences should not be used as an excuse to implement broad and nondescript statements such as “my husband was abusive”, “my wife did nothing” and “30:70% split”. While opinion or inference should be included, the relevant facts should be fully fleshed out in all their specifics and not merely summarised. Generalised comments are merely fodder for cross-examination. The bench is then left to wonder whether other material in such an Affidavit is self-serving and exaggerated.
Words
The specific words used really matter. A broad-brush approach is never appropriate. Be sensitive to avoid unnecessarily offending the other party. In children’s matter, avoid labels such as “resident parent” or “non-resident parent”. Using the first names of parties to a dispute is generally better than phrases such as “Applicant Father” or “Respondent Mother” as these terms help keep parents somewhat connected in their ongoing parenting relationship.
I have been approached by numerous mediators, psychologists and counsellors over the years who have told me that they spend far too much time mopping up the mess caused by unfounded allegations contained in Affidavit material. Lawyers generally only read an Affidavit once or twice in the context of the particular proceedings currently before the Court. However, lawyers need to think twice before swearing up and filing an Affidavit, as they may unwittingly be sending of a time-bomb that will go off in the homes of parties who read and re-read the Affidavit material over and over again, stewing over every word contained therein. This not only fails to convince the Courts, but polarises parties to a dispute and thus reduces the effectiveness of the ADR processes, which is hardly in a party’s best interests.
At the end of the day lawyers are problem solvers and should not be creating further problems for parties who already face a crisis situation in their lives ad need to be able to rely on an independent and objective professional who can guide them through these troubled waters to safe ground where they can move on with their lives.
Conclusion
An Affidavit should be a clear and concise statement of fact relevant to the issues in dispute. It should be prepared early and be well structured. It should be easy to understand and navigate through. It should brief the Court fully on the specifics of the matter in such a way that it becomes a tool in assisting the Court in its decision-making process.
A persuasive Affidavit will assist the writer by apprising them of the matter, assist the deponent in resolving their matter without unnecessary litigation, aid the working relationship between the parties and with ADR practitioners, and alleviate the burden placed on the Court (thus resulting in lawyers being more persuasive advocates).
From these principles, I would suggest that the attached list of “Top Dos and Don’ts” are a ready reference to help lawyers maintain best practice in being both an effective advocate and also promoting ADR processes to provide the best outcomes possible for their clients.
Dos
Prepare early
Adhere to the rules of evidence
Be relevant
Be specific
Be succinct
Keep to the facts
Length indicative of complexity
Be upfront with weaknesses in the case
Be positive about the other party
Only annexure material in dispute
Don'ts
Avoid hearsay
No opinion
No summarising
No legal submissions
No speculation
No waffling
Avoid humour
Don't be dramatic and emotive
No lies
Don't draw conclusions
If you would like to obtain family law advice specific to your personal circumstances, please contact me on: richard.mahler@mahlerfamilylaw.com or (07) 4638 0811.
Best of luck in the journey that lies ahead.
Disclaimer: This is an opinion piece, and is Family Law information, not to be taken as Family Law advice.
Please click this link for a PDF version of this document:
