South Carolina Lawyer38

The use of affidavits by counsel,whether submitted by the defense tosubstantiate its contention that sum-mary judgment is warranted or bythe plaintiff in an effort to show theexistence of a material issue for trial,often can be an effective method ofpresenting information critical tothe court’s evaluation of the meritsof the case. However, in manyrespects, the formalities of affidavitshave fallen by the wayside. Overtime, as courts have become less pro-cedurally formal, there has been acorresponding erosion of the stan-dards governing testamentary evi-dence submitted by practitionersand considered by courts. As stan-dards for affiant-submitted evidencehave eroded and fallen by the way-side, so has the integrity of the fact-finding process. The importance ofmaintaining and enforcing the stan-dards established for sworn state-ments is as important as the integri-

ty of the justice system itself. This article revisits and empha-

sizes the procedural and practicalrequirements for the admissibility ofsworn statements. Supporting oropposing affidavits “must be madeon personal knowledge, set out factsthat would be admissible in evi-dence, and show that the affiant iscompetent to testify to the mattersstated.” Fed. R. Civ. P. 56(e)(1). Aparty who submits evidence in theform of affidavits must do so in theproper, authenticated form. Even ata preliminary stage of trial, courtsshould not permit admission of doc-uments that do not strictly complywith procedural rules. It is impera-tive that a party’s sworn submissionbe sufficient in execution and sub-stance, as well as consistent withprior assertions, to ensure theintegrity of the process. Accordingly,practitioners should reexamine theiraffidavit forms and consider

whether they are in compliancewith the applicable rules and caselaw as to form. Practitioners alsoshould examine opposing counsel’ssubmissions and move to strike anythat do not meet the clear standardsset forth for admissible affidavitsand sworn statements.

Technical requirements for asworn statement are critical but often not met

The mere signing of a statementin the presence of a notary, or anotary’s placement of an “acknowl-edgment” on a statement, does notconstitute a sworn statement or affi-davit. In Orsi v. Kirkwood, 999 F.2d86, 91 (4th Cir. 1993), the plaintiffargued that courts should be“lenient” in accepting documents atthe summary judgment stage, “aslong as they are ‘probative,’ or atleast ‘evidence of evidence’ thatcould later be introduced at trial.”

ATTACKING AFFIDAVITSMaintaining the Integrity of

the ProcessBy Christopher M. Kelly and Laura G. Simons

South Carolina Lawyer40

The court rejected this argument,holding: “We have no desire tomake technical minefields of sum-mary judgment proceedings, butneither can we countenance laxnessin the proper … presentation ofproof.” Id. at 92. Every practitionerand court should hold to this rule toensure the integrity of the process.

In one precedential case, theU.S. Court of Appeals for the FifthCircuit was confronted with theissue of whether a party’s signedstatement, given in the presence ofa notary, constituted competentsummary judgment evidence.Nissho-Iwai Am. Corp. v. Kline, 845F.2d 1300, 1305 (5th Cir. 1988). Theacknowledgment at the end of thepurported affidavit considered bythe Court read as follows:

BEFORE ME, the undersignedauthority, on this day personallyappeared Mrs. Rukmini SukarnoKline, known to me to be theperson whose name is sub-scribed to the foregoingAffidavit, and acknowledged tome that she executed the samefor the purposes and considera-tion therein expressed.

/s/ Rukmini Sukarno KlineRUKMINI SUKARNO KLINE

GIVEN UNDER MY HAND ANDSEAL OF OFFICE this 17th dayof April, 1983.

/s/ Robert C. Bennett, Jr.Notary Public in and for HarrisCounty, Texas

Id. at 1306. In spite of opposingcounsel’s argument that the evalua-tion of its submission was “hyper-technical,” the court held that thisacknowledgment was insufficient toconvert the unsworn statement intoa valid affidavit and was thus prop-erly disregarded as competent sum-mary judgment evidence. In supportof its conclusion of law, for which ithas been positively cited 85 timesby courts throughout the country,the court held:

[T]he only evidence in the sum-mary judgment record purport-

ing to justify [appellant’s posi-tion] was her own rendition offacts contained in a notarized,self-described “affidavit.” Thisaffidavit is neither sworn nor itscontents stated to be true andcorrect nor stated under penaltyof perjury.

Id. at 1305-06. A recent federal courtruling in Texas similarly demon-strates this pitfall. Schelsteder v.Montgomery County, Tex., 2006 WL1117883, at *3 (S.D. Tex. 2006). InSchelsteder, the court held that state-ments that merely bear the signa-ture of a notary, as were profferedby the plaintiffs, constitute neitheraffidavits nor sworn statementsappropriate for the court’s consider-ation upon the defendant’s motionfor summary judgment. The courtrejected the plaintiffs’ submissionsas proper evidence, holding:

Plaintiffs have filed a number ofwitness statements thatPlaintiffs’ counsel characterize as“affidavits,” but they are notsworn to nor are they state-ments made under penalty ofperjury. The mere signing of astatement in the presence of anotary, or a notary’s placementof an “acknowledgment” on astatement, does not constitute asworn statement or affidavit. …Accordingly, the [statements] donot constitute summary judg-ment evidence under [Rule56(c)], and are not consideredon the pending motion.

Id. The plaintiffs’ failure to presentproper statements, made underpenalty of perjury, warranted thecourt’s disregard of the proposed“affidavits” and its granting of sum-mary judgment in favor of thedefendants. Courts throughout thecountry unanimously agree with theNissho-Iwai court’s holding, that themere signing of a statement in thepresence of a notary or the notary’splacement of an acknowledgmenton the statement does not then ren-der the document a sworn statementadmissible as evidence.

It is important to consider thespecific elements a statement must

satisfy in order for it to constitutean affidavit upon which courts willrely. The proffered statement mustsatisfy three essential elements: “(1)a written oath embodying the factsas sworn to by the affiant; (2) thesignature of the affiant; and (3) theattestation by an officer authorizedto administer the oath that the affi-davit was actually sworn by the affi-ant before the officer.” 3 AM. JUR. 2DAffidavits § 8 (2008). Perhaps mostcritical to the evaluation of the suf-ficiency of a party’s submission isthe court’s consideration of whetherthe affiant provided the statementwith a true understanding of thesignificance of his submission.Tishcon Corp. v. SoundviewCommunications, Inc., 2005 WL6038743, at *4 (N.D. Ga. 2005);United States v. Bueno-Vargas, 383F.3d 1104, 1111 (9th Cir. 2004). InTishcon, the plaintiff submitted astatement in which he incorporatedthe phrase, “hereby declares underpenalties of perjury the following,”but neglected to declare his state-ment “true and correct.” Id. Thecourt held that of greatest impor-tance in its evaluation of the state-ment is whether the person “sig-nal[s] that he understands the legalsignificance of his statements andthe potential for punishment if helies.” Id. If a party’s submissiondemonstrates a lack of understand-ing of the statement’s legal signifi-cance, or perhaps an indifference tothe penalties of perjury, the submis-sion should be properly excludedfrom the court’s evaluation.

The requirements for a swornstatement or affidavit do not existmerely to irritate practitioners withinconsequential formalities. It hasbecome too commonplace for practi-tioners to ignore the requirementsfor a proper affidavit and for somecourts to avoid enforcing therequirements for fear of being per-ceived as too hyper-technical. Therequirements for sworn statementsand affidavits exist to protect theintegrity of the truth-seeking processand to guard the rights of the partiesfrom abuse. Failure of practitionersand courts to strictly enforce therequirements undermines the legiti-macy of a justice system that is

January 2010 41

dependent on truthful testimony.

Substance of a party’s submis-sion must constitute admissibleevidence

Affidavits submitted by a partymust be made on personal knowl-edge and must set forth facts thatwould be admissible in evidence.Rule 56(e)(1), FRCP. Just as therequirements for the form of a state-ment should not be relaxed, eviden-tiary requirements also should bestrictly enforced. Failure to analyzethe substance of an affidavit, inlight of the requirements of theRules of Evidence, can underminethe integrity of the process.

Case law helps shed light oncourts’ potential treatment ofhearsay and other evidentiary viola-tions with regard to affidavits. ANorth Carolina federal district courtin 2008 was confronted with an affi-davit that constituted hearsay. Gellv. Town of Aulander, 252 F.R.D. 297(E.D.N.C. 2008). In Gell, the plain-tiff had been acquitted of criminalcharges and subsequently filed acivil suit against persons involved inhis criminal investigation and pros-ecution. The defendants moved forsummary judgment. Id. at 299-300.In response, the plaintiff submitteda document prepared by an investi-gator working on his behalf whohad met with a witness for the pur-pose of conducting an interview.The investigator asked questions ofthe witness and “created a draft affi-davit” for her based on her respons-es to his interview questions. Id. at300-301. The defendants argued,and the court agreed, that theseunsworn statements in the form ofresponses to questions, made by awitness and simultaneously record-ed by the interviewer, were inadmis-sible hearsay. In accordance withthis holding, a person’s unswornresponses to interview questionsthat have been recorded by a thirdparty are inadmissible hearsay whenoffered for their truth and thus areto be excluded from the court’s con-sideration upon a party’s motion forsummary judgment. Id.

In another case involving simi-lar circumstances, several dischargedpolice recruits filed suit against the

city for wrongful discharge on thebasis of race and gender. Friedel v.City of Madison, 832 F.2d 965 (7thCir. 1987). After nine months of dis-covery, the defendants filed amotion for summary judgment withaccompanying affidavits. The courtheld that the plaintiffs’ counsel pro-vided an “object lesson in how notto respond to a motion for summa-ry judgment.” Id. at 969. Plaintiffs’counsel provided their own affi-davits, to which they attached anumber of unsworn interviews ofpolice recruits. The court rejectedthese unsworn interview questionsand responses as inadmissible evi-dence, holding:

The use of affidavits by counselis in certain carefully confinedsituations undoubtedly appropri-ate, but it is a tactic fraught withperil, and counsel must remem-ber that the requirements ofRule 56(e) are set out in manda-tory terms and the failure tocomply with those requirementsmakes the proposed evidenceinadmissible during the consid-eration of the summary judg-ment motion. Supporting mate-rials designed to establish issuesof fact in a summary judgmentproceeding must be establishedthrough one of the vehiclesdesigned to ensure reliability andveracity—answers to interrogato-ries, admissions and affidavits.

Id. at 970 (internal quotations omit-ted). The answers to interview ques-tions were based mostly on whatthe persons “heard” or “felt” to bethe case and thus exhibited “serioushearsay and other evidentiary prob-lems and [ran] against the literalrequirements of [Rule 56(e)].” Id.

Essentially, the Friedel court heldthat unsworn interview responsessimply do not qualify as “vehiclesdesigned to ensure reliability,”which is required for admissibility ofa party’s evidence in opposition tosummary judgment. Other courts’holdings also support this conclu-sion. The Fourth Circuit Court ofAppeals has recognized that inter-views conducted by an attorney whohas an interest in the litigation,

whereupon interviewees’ affidavitsare created, are “not conducive tofrank disclosures,” such that theinterview responses and affidavitsthat reflect interviewees’ answersmay be properly discredited. Nat’lLabor Relations Bd. v. Lifetime DoorCo., 390 F.2d 272, 275-76 (4th Cir.1968). In addition to the danger ofunreliable responses in theseunsworn interview settings, onecourt has also discussed the dangersassociated with an affiant’s “fillingin the blanks” of a preprinted form.State v. Bowman, 1989 WL 83313, *4(Tenn. Crim. App. 1989). In spite ofthe fact that this case arose in thecriminal context, the court’s reason-ing provides helpful insight intocourts’ potential evaluation of thedeficiencies that inevitably resultwhen an affiant merely circles or fillsin responses to a questionnaire andsubmits it to the court to support hisposition. The court here held:

The danger with [questionnaires]is that they inevitably tend tolull users into what might betermed a “check-off and fill-in-the-blank mentality” which …produces a dearth of informa-tion. If the [affiant] here hadbeen called upon to draw theaffidavit largely from scratch, hemight have fallen back on thetrusty technique of setting outwho-what-when-where-why, andthus would have avoided thedeficiencies in the affidavit.

Id. An affidavit or sworn statementmust set forth facts that conform tothe Rules of Evidence. It must beprovided under circumstances thatare conducive to eliciting frank dis-closures. Information regarded bythe court as inherently unreliable orlacking in specificity is insufficient.Accordingly, courts and practition-ers should spend as much time dis-cussing the admissibility of theinformation contained within anaffidavit as they do discussing thesubstance of it.

Sworn statements and affidavitsmust be consistent with priorsubmissions and statements

Too often practitioners believe

South Carolina Lawyer42

that they can correct or contradictprior testimony by way of affidavitand therein create an issue of fact.This practice often takes the role ofadvocate a step too far and canundermine the integrity of theprocess. Where a party submits anaffidavit to the court that containsinformation inconsistent with theparty’s prior deposition testimonyor other sworn submission, courtshold that these contradictory affi-davits should be disregarded as“shams” or “competing affidavits.”See Margo v. Weiss, 213 F.3d 55, 63(2nd Cir. 2000); Rohrbough v. WyethLabs. Inc., 916 F.2d 970, 976 (4thCir. 1990); Martin v. Merrell DowPharms., Inc., 851 F.2d 703, 705 (3rdCir. 1988). Courts will disregard asubsequent affidavit as a sham—that is, as not creating an issue offact for purposes of summary judg-ment—in the event that it contra-

dicts the party’s own prior swornstatement. All federal circuits andmost state jurisdictions have adopt-ed the sham affidavit doctrine insome form. Cain v. Green Tweed &Co., Inc., 832 A.2d 737, 740 (Del.2003) (citing Shelcusky v. Garjulio,172 N.J. 185, 797 A.2d 138 (N.J.2002) (collecting cases)).

Essentially, this doctrine pro-vides that a plaintiff cannot submitan affidavit in which he alleges newor different facts from those previ-ously asserted in an attempt to cre-ate a material issue for trial. In dis-tinguishing between a sham affi-davit versus one that merely cor-rects or clarifies an issue previouslyaddressed by the party, some courtshave developed the following con-siderations for guidance:

(1) whether an explanation isoffered for the statements that

contradict prior sworn state-ments; (2) the importance to thelitigation of the fact aboutwhich there is a contradiction;(3) whether the nonmovant hadaccess to this fact prior to theprevious sworn testimony; (4)the frequency and degree ofvariation between statements inthe previous sworn testimonyand statements made in thelater affidavit concerning thisfact; (5) whether the previoussworn testimony indicates thewitness was confused at thetime; (6) when, in relation tosummary judgment, the secondaffidavit is submitted.

Cothran v. Brown, 357 S.C. 210, 218,592 S.E.2d 629, 633 (S.C. 2004) (cit-ing Pittman v. Atl. Realty Co., 754A.2d 1030, 1042 (Md. 2000)). Wherea party submits a competing affi-

At the pendente lite stage ofdomestic proceedings, the affidavit canbe a crucial instrument in the determi-nation of the outcome. If it is sufficientand properly prepared, the clientmight spend the next year or two liv-ing with a good result in terms of visi-tation and support while workingtoward a final hearing. If it is defectivein substance or admissibility, the clientmight spend the same time complain-ing to your office and scrambling tofind a change in circumstance thatmight provide sufficient reason to seeka modification of a temporary order, ormight seek new counsel altogether.

Because Rule 21(c), SCRFC, specif-ically makes Rule 6(d), SCRCP, inappli-cable to temporary hearings in familycourt, affidavits are not filed inadvance of the hearing, and often-times the lawyers receive the oppos-ing party’s affidavits at the onset ofthe hearing and at the same time asthe presiding judge. Thus, the practi-tioner has little time to review thesubmissions and must try to quicklyabsorb the substance and provide theclient the chance to do the same,

while at the same time incorporatinganything gleaned into any allowedoral argument. Therefore, it is possibleto miss defects, especially beforecourts that place no limit on the num-ber or length of submissions, withnumerous affidavits to review.

Practitioners should note that Rule6(d), SCRCP, still applies to othertypes of motions in family court, andaffidavits must be provided with themotion. For those who practice exclu-sively domestic law, this rule is oftenoverlooked by the movant as well asby the opposition, and a timely objec-tion to last-minute affidavits from themoving party can be a useful strategyunder the right circumstances.

Still, the affidavit is the workhorseof the temporary hearing. A practi-tioner’s ability to adhere to the rules,know what to present, and knowwhen the opposing affidavits aredefective can make the difference inobtaining a favorable result or inestablishing a record for supersedeas. Reviewing the jurat (the certificationat the foot of the affidavit where thenotary signs) for technical defects is

certainly advisable, but one shouldalso look closely for things that mightreveal intentional deceit. As notariesabound in South Carolina, it is notunusual for clients to deliver affidavitsfrom witnesses already notarized. And,with high stakes and emotioninvolved, opposing parties and evenclients can’t necessarily be trusted inthis respect. Real-life examples of“questionable” jurats include affidavitspurportedly signed by the samenotary but with noticeably differentsignatures; the back-dated affidavit inwhich a notary signed with a marriedname instead of the maiden name shehad on the back-date of the affidavit;the notary who purportedly witnessedmultiple affidavits, but all of whichhad varying commission expirationdates; or simply the made-up notary.

Simply the proper selection of affi-davits can be an important strategy.As family court judges often advise,affidavits from mothers and fathers oflitigants who declare their child is agood parent carry little weight, and itis not necessary to include affidavitsthat offer no substance. However,pointing out to the court that an in-law provided a supporting affidavit orpointing out that a party who claimsto have tremendous family support

The Family Court Affidavit: Uses and MisusesBy David C. Shea

January 2010 43

has only affidavits from distant, out-of-state relatives can be helpful in pre-senting your client’s case.

Hearsay can get you in troubleHearsay in affidavits is an ongoing

problem in the family court. In anEthics Advisory Opinion that wentlargely unnoticed within the familycourt bar, S.C. Bar Ethics Adv. Op. #08-14, the question posed by a familycourt practitioner was:

May a lawyer representing a clientin a divorce action file affidavits insupport of ex parte requests ortemporary hearings that includehearsay or information that is notbased on the witness’s personalknowledge?

The opinion states that a lawyer“may file affidavits that include hearsayor information not based on a witness’spersonal knowledge in support of exparte requests or temporary hearings,”but only so long as it is “clearly identi-fied as such.” Further, the opinionstates that if the lawyer knows an affi-davit to contain hearsay that is notidentified as such, the lawyer has aduty to advise the court of the hearsay.In practice, this does not often happen.

While some hearsay is unavoidablein witness affidavits obtained by clientsand drafted without the assistance ofcounsel, it is still prudent for the practi-tioner to review all affidavits submittedto the court not only to comply withthe advisory opinion, but to ensurethat the affidavits actually advance theclient’s position and to comply withthe general directives of diligence. Itcan be quite embarrassing to a practi-tioner when a client’s own witness affi-davits conflict with one another andthe lawyer did not review them aheadof time and realize the problem.

Ex parte means full disclosureThe advisory opinion also reminds

the practitioner of the duties ofSCRPC 3.3(d). While it is well settledthat ex parte orders are condemnedby our courts, the exception is whenthey are justified by exigent circum-stances. Dunnavant v. Dunnavant, 278S. C. 445, 298 S. E. (2d) 442 (1982);McSwain v. Holmes, 269 S. C. 293,237 S. E. (2d) 363 (1977). In thefamily court, exigent circumstancesmost often arise when the physicalsafety of a child or spouse is threat-ened. In ex parte applications foremergency or expedited relief, thecourt’s decision must, by necessity,

be made primarily from the contentsof the affidavits attached to the peti-tion. Rule 6(d), SCRCP.

Rule 3.3(d) requires that in an exparte proceeding, a lawyer shall informthe tribunal of all material facts knownto the lawyer that will enable the tri-bunal to make an informed decision,whether or not the facts are adverse.Again, in practice this does not oftenhappen. While volunteering adversefacts may seem unnatural to an advo-cate, the rules exist for a reason.

Disclosure of adverse facts means,for instance, that if your own clienthas told you that he or she has thesame drug problem as the spouse, it isa material fact and should be disclosedif that is the basis for the emergency.Or, if there is a police report (which ishearsay in itself) that relates that themovant was the instigator in a dispute,it should be disclosed. However, askilled attorney can include adversefacts and still provide support for theex parte request by focusing on thethreat, and then providing a supple-mental affidavit at the hearing itselfthat might better express points ofadvocacy within the facts.

David C. Shea is a sole practitionerin Columbia.

davit that attempts to create an issueof fact, the court may properly disre-gard the party’s subsequent conflict-ing affidavit or sworn statement.Practitioners should avoid losingsight of their role as officers of thecourt, allowing it to be subsumed bytheir role as advocates for theirclients, by submitting contradictoryand competing sworn statements.

Practitioners should attack insuf-ficient submissions with motionsto strike or objections

Affidavits that fail to complywith the Rules of Procedure “shouldbe stricken and disregarded.” 35BC.J.S. Federal Civil Procedure § 1214(2008). The proper avenue by whichcounsel should seek such exclusionon pending motion for summaryjudgment is by motion to strike pur-suant to Rule 56(e) of the Rules ofCivil Procedure or, alternatively, by

raising a more general objection tothe admissibility of the contents ofthe submission. Saucier v. ColdwellBanker JME Realty, 2007 WL2475943 *3 (S.D. Miss. 2007) (citingAuto Drive-Away Co. of Hialeah, Inc.v. Interstate Commerce Comm’n, 360F.2d 446, 448-49 (5th Cir. 1966));Larouche v. Webster, 175 F.R.D. 452,454 (S.D.N.Y. 1996).

Case law is clear, however, thatsuch motions must be timely made.In the case of summary judgmentmotions, the motions to strikeshould be made while the motionfor summary judgment is pendingbefore the court. It is settled lawamong federal and state courtsthat testimony to which no objec-tion is made may be considered bythe trier of fact; an analogous ruleapplies to testimony providedwithin an affidavit, wherebyimproper affidavits may be consid-

ered by the court on motion forsummary judgment where counselraises no objections. Klingman v.Nat’l Indem. Co., 317 F.2d 850, 854(7th Cir. 1963) (citing Monks v.Hurley, 45 F. Supp. 724 (D.C.D.Mass. 1942)). Accordingly, in theabsence of a motion by counselopposing admissibility of animproper affidavit, formal defectswithin the affidavit ordinarily arewaived. Auto Drive-Away Co. ofHialeah, 360 F.2d 446 at 449 (citingU.S. for Use and Benefit of Austin v.W. Elec. Co., 337 F.2d 568 (9th Cir.1964)). However, when motions tostrike or objections are timelymade by counsel, nonconformingaffidavits or any nonconformingportions thereof should be strickenfrom the record by courts and dis-regarded as evidence. Larouche, 175F.R.D. 452 at 455. As such, in

Continued on page 50

Court imposed a six-month suspen-sion on Michael E. Atwater forfailing to respond to the Office ofDisciplinary Counsel in the investi-gation of five matters.

By order of October 26 theCourt imposed a definite suspensionof nine months on William H.Jordan of Charleston for miscon-duct involving a criminal act.

By order of November 4 theCourt imposed a 90-day suspensionon George A. Harper, retroactiveto March 31, based upon his guiltyplea to willful failure to file a stateincome tax return and failure topay taxes.

By order of November 9 theCourt disbarred Oliver W.Johnson III for misconduct whichinvolved a pattern of financial mis-conduct, neglect, guilty pleas to taxevasion and assault and battery, andfailing to pay a court reporter andexpert witness.� �

By order of November 9 theCourt indefinitely suspendedKenneth L. Mitchum for miscon-duct which included failure to keep aclient reasonably informed, failure todiligently pursue a case and attempt-ing to provide financial assistance toa client in connection with pendingor contemplated litigation.��

By order of November 9 theCourt imposed a public reprimandon former Probate Court JudgeRebecca A. Allen (not a Bar mem-ber) for misconduct involvingembezzlement of public funds.

ReinstatementsBy order of October 6 the Court

reinstated Eric P. Kelley ofHermitage, TN, to Active status.

By order of October 8 the Courtreinstated Samantha D. Farlowto practice.

By order of October 8 the Courtreinstated PatrickHollingsworth Moore ofColumbia to Active status. ��

By order of October 20 the Courthas reinstated Pete A. Lang of FortMill to Inactive member status.

By order of November 4 theCourt reinstated Vannie Williams

Jr. to the practice of law subject toconditions.

ResignationsBy order of October 9 the Court

accepted the resignation from theBar of Susan Barnes. n

accordance with case law, it isimperative that practitioners takean aggressive approach in consid-ering the admissibility of oppo-nents’ submissions and that theyraise their objections while themotion is pending. Otherwise,such right may be forfeited.

ConclusionGiven the frequency of parties’

submissions of affidavits and theseemly increasing informality inmany courts, it is perhaps not sur-prising that practitioners’ adher-ence to procedural requirements inthe crafting and submission of affi-davits has waned. Certain affi-davits and sworn statements,which lack procedural formalitiesor assurances that the affiantunderstood the significance of hissubmission or the penalties forperjury, should be attacked byopposing counsel in their role asclient advocates and as officers ofthe court. Insufficient statementsshould be excluded by courts. Inaddition, even if technicallysound, there always should be anevaluation of the admissibility ofthe affidavit. Finally, an analysis ofwhether its contents contradict theparty’s prior statements or submis-sions is necessary and any suchstatements should be disregarded.Practitioners should refine theiraffidavit forms and practices toensure compliance with proceduralrequirements and should be will-ing to take an aggressive approachin assessing and attacking oppos-ing affidavits to ensure the contin-ued integrity of the court.

Christopher M. Kelly is a share-holder and Laura G. Simons is anassociate with Gallivan, White &Boyd, PA in Greenville.

South Carolina Lawyer50

Office Space Available

A BIG BEAUTIFUL, FURNISHED LAWOFFICE IN COLUMBIA; available now. Idealfor one or two new attorneys, with room toexpand. Reception, conference, attorney offices,computers, Internet, copier, phone. Even somesupplies. Phone answering available. Four park-ing spaces.1.5 blocks from Richland CountyCourthouse. Flexible lease—three months to oneyear—your choice. Great price. Please call AdelePope at (803) 779-1870.

Position Available

VETERANS AFFAIRS, COLUMBIA REGION-AL OFFICE, WILL RECEIVE APPLICATIONSfor the full-time position Rating Veterans ServiceRepresentative (RVSR). As a RVSR, you will serveas a specialist and decision maker for disabilityclaims, evaluate medical evidence to determinelevel of disability, and establish entitlement to ben-efits. J.D. degree. Start salary $46K. E-mail resumeto resume.vbacms@va.gov.

SOLO LAW PRACTICE FOR SALE IN SPAR-TANBURG COUNTY, SOUTH CAROLINA,serving clients with real estate, probate, personalinjury and business needs. The firm has a large,well-established client base which is increasing atthe rate of more than 150 new clients per year.Substantial equipment, furnishings and suppliesto be sold with the practice. Please direct inquiriesto P.O. Box 578, Landrum, SC 29356.

OFFICE SHARING ARRANGEMENT: Acrossthe street from Richland County Courthouse.Conference room, extensive library, Westlawavailable, two furnished offices, breakroom, sec-retary/paralegal. Free parking. Send inquiries tosgwin@complexlaw.net.

Practice for Sale

Services Available

HOMEOWNERS ASSOCIATION EXPERTWITNESS: 30+ years experience in communityassociation governance, accounting, budgeting,complex amenity structures and property opera-tions. Contact IPM Corp., AAMC at (866) 978-3839, ext. 6873 or sdavis@ipm-corp.com or visitwww.ipmhoa.com.

The advertising deadline for the March issue is January 29.

Bar News(continued from page 7)

Attacking Affidavits(continued from page 47)

Classifieds

Property for Sale or Rent

SALUDA, N.C.: (1) LAKE HOSEA—Lake fronthome. Four bedrooms, three baths, big deck, twofireplaces, many recent upgrades. A-framedesign. Spectacular view of the lake. $297,000.(2) LAKE SHEILA—Three bedroom, two bathlog home. Stone fireplace, large covered porch,open deck, sunroom, private setting. $265,000.(3) 1800s FARM HOUSE with four acres ofland. Pastures/fields. Private. $68,000. ContactArrington Properties at (800) 749-3114 orwww.arringtonproperties.com