Drafting Mitigation Declarations

Kirsty DavisApril 2011

Uses for DeclarationsBasis for experts’ opinionsSupport for allegations in the petition

Proffer in support of a motion for an evidentiary hearing

Testimony

GoalsCreate a compelling narrativeCorroborate other’s narrativesProvide legally significant evidence

Litigation PitfallsDisavowal of content (counter-declaration or testimony at a hearing)

Inaccuracies and inconsistencies (previous statements, documents, testimony, and declarations or statements of other witnesses)

Harmful informationDiscrepancies with general case themes

Discrepancies with Case ThemesCLIENT was a superb worker. He often recognized inefficiencies in our industry and recommended insightful solutions. I found myself relying on his excellent observations in devising changes in our workflow procedures and reducing injuries to our workers.

Two Problems:

1. CLIENT picked up garbage and once “recommended” that the workers be given work gloves because he cut his hands, a recommendation that he got from the driver of the truck.

2. Theme: CLIENT is mentally retarded.

Keys to Successful DeclarationsPreparing for the interviewConducting the interviewDebriefingDraftingEditingSigning

Preparing for the InterviewUnderstanding focus/themes of the case

Educating yourself about the witness (case and non-case investigation)

Formulating topics, questions, and approaches

Understanding the witness’s role

Conducting the InterviewConditions of interview

Interview witness individuallyLocation where witness is comfortable

Note takingWitness considerationsBalance accuracy with attentionUse of outlineHarmful informationWhat to do with the notes

Explaining the declaration process to the witness

DebriefingPost-interview team discussions

Harmful informationProcessing significance of information obtained

Discussion of difficulties interview presented (stress of interview)

Need for follow-up interview(s)

Drafting DeclarationsStructure:

1st (or 1st and 2nd) paragraph(s): Witness’s relationship to client and/or the case and characteristics that make the witness credible

Body/ContentPenultimate paragraph: not contacted by

defense, or not asked questions that would have elicited the information included in this declaration, would have been willing to testify

Last paragraph (not numbered): penalty of perjury. No need to include location where declaration was signed.

Level of Detail in Social History DeclarationsInstead of conclusion: “He was slow.” Frank reported directly to James Cooper. He was the

only one of the workers, besides the supervisors, to do this. He cleaned the office in the mornings and then checked with James to see if he should go to work at James’s house or at one of the work sites. At James’s house, Frank cleaned inside and took care of the dog and cleaned up outside on the patio. On the construction site, his main task was to clean, and on occasion he helped with demolition. He did not have construction skills, and he could not do complex work or tasks. When he finished a task at a work site he asked me what to do next. I never assigned him any task other than cleaning. He was obedient and recognized that I was in a position of authority.

Instead of conclusion: “They were poor.”I had not realized how poor they were, and I was shocked by the conditions in which they were living. When I ate with them, they had only one potato that they had to divide between all of them. Because I was their guest, I was given two pieces of potato while the rest of them had only one piece. Jimmy and his brother Peter only had simple sandals with a rubber bottom. That was terrible because the roads were not paved and when the rains came, everything became muddy. I knew that Jimmy’s family suffered because his father was gone, but Jimmy and Peter were so poor I gasped when I saw how they were living.

Goals in Drafting DeclarationsCreate a compelling story by an interesting

character.Historical factsEmotions and impressions

Ensure accurate and supported information. Two sources are better than one: each material fact should be corroborated by another witness or a document

Respect the voice of the witness while ensuring that the witness’s in-court testimony is reflected in the declaration

Style of the DeclarationWouldAlways/neverI [do not] remember/I recallI think/I believeSlangQuotes

EditingParticipation by team membersFact-checking

Signing DeclarationsWhen to sign

Fact-checking completedAfter ensured consistent with other

evidence (or credible explanations for inconsistencies) and with case themes

Witness availability (health and location considerations)

In time to submit to relevant experts for consideration

Signing DeclarationsCopies?Will witness have to testify?Who will see the declaration?Witness is reluctant?Changes?Illiterate or impaired witness?