Court Declarations Explained
Under California law, a court declaration is a sworn statement made in writing under penalty of perjury and can be used as evidence for or against a party in litigation. Making a well-crafted court declaration is one of the most important steps in a case. However, making an ineffective declaration can be just as important to avoid.
A court declaration is used in lieu of live testimony. Court declarations are taken under the eye of the court and have the same impact as live testimony. Therefore, when you make a sworn declaration (in other words, you declare or swear under penalty of perjury) the statements you make in the declaration will be used as evidence.
For example , if you swear under oath that your bill is $100, at trial you are bound by this statement. Meaning that if you provide additional evidence at trial that your bill is $200, and the other side objects to your new evidence you cannot get your bill in as evidence. The judge would rule that your prior statement was heard in the court and the trial judge must abide by that statement.
Therefore, it is important to make an accurate declaration and to not make any statements that cannot be proven. Even if you think you can get all of your evidence into court for the judge or jury some day. It may not be as simple as you think.
Constituents of a Declaration
These are the components that every court declaration must contain, and what details and facts should go in each of them:
Introduction: In this section, you will set forth the name of the person who is providing the declaration. In most cases, this will be the individual who is taking the witness stand at the deposition. You should also include their address in the introduction.
Statement of Facts: In this section, you will actually carry out the act of stating facts. The question that you want to answer here is, what are the relevant facts that you need to present in order to support the point you are trying to make? When you were collecting the information for your discovery deposition, you should have created a list of the key points of your case. Using this list, you should detail all of the relevant facts of the case in the statement of facts section of the declaration.
Conclusion: This is simply where you will reiterate the point that you are trying to make with this declaration.
It is imperative that you have the correct legal terminology in these sections – the name of the declarant, the declarant’s address, and the declarant’s declaration under penalty of perjury – to ensure that the declaration is created properly and to avoid having it rejected.
How to Write a Declaration – Step-by-Step
This guide assumes you don’t have complete information for your declaration (see, for example, our discussion above on what to include in a separation or divorce declaration). In this case, it’s better to start with what you do know and provide a supplementary form to add additional information later than not starting at all: I. Start with the basic details of the declaration: II. After that, you’ll want to provide details about the fact or facts your declaration is seeking to prove: III. Next, you will want to include details about the history of the fact or facts you’re proving: IV. Then, you will want to provide the outcome or result caused by the fact or facts you are proving: V. Last, you will want to conclude your declaration by stating why the order you are seeking in the case should be granted: VI. If there is any additional information necessary for your attorney to draw a complete picture, don’t forget to include that as well: The most important thing to remember while writing your declaration is clarity. The purpose of your declaration is to convince the judge that you have met the burden of proof necessary to award what you are requesting from the court. You should think about that goal throughout the drafting process to make sure that your opening statement, statements of proof, history, and conclusions maintain that focus.
Typical Pitfalls to Avoid
The typical mistakes people make when preparing court declarations include the following:
1. Combining declaration and testimony
A declaration is like a witness testimony but made in writing. It does not take the place of a testimony. For instance, a witness cannot testify about something that they did not clearly observe. Likewise, a witness cannot testify about something that someone else told them.
In a declaration, a person cannot declare something unless they are able to clearly observe it or experience it personally. Also, a person cannot declare something unless they happen to have personal knowledge about it. Opinions are usually not allowed. Also, you cannot include hearsay statements. Hearsay statements are things that you heard someone else say. Hearsay statements have to qualify as an exception to the hearsay rule to be admissible. Here’s an example, "My brother told me that he saw the defendant commit the crime." The statement is inadmissible because it’s hearsay. But if a law enforcement officer is testifying about what his brother told him, then the statement is admissible. That’s because the statement is an admission and qualifies as an exception to the hearsay rule.
Remember that in a declaration, you cannot include the testimony of someone else . This is no substitute for live testimony in a courtroom. It’s not a deposition either. Declarations in court cases are usually made under penalty of perjury. A declaration is in writing, but it is made under penalty of perjury to tell the truth.
2. Only declaring the date, time, and location of the incident
When something happens, and witnesses are called to testify later about what happens, the declaration should do well to include more of the surrounding circumstances. Putting together a simple outline would help jog the memory of the witness about a declaration.
A declaration is sworn testimony or verified testimony. There’s some common mistakes that people likely make when they prepare a declaration. In a nutshell, the declaration is the sworn testimony of a witness or party. There are also legal declarations. There are a number of legal declarations that a party can make. In a family law court, we use a FL declaration.
A declaration must contain:
- A statement of facts, usually in a numbered format
- Witness’ name
- The person who signed the document must verify under penalty of perjury that the information contained in the declaration is true
- The date of the statement
There is no limitation as to the number of declarations that a party can make.
Example Court Declaration
Below is a sample of a court declaration (plaintiff’s declaration in opposition to defendant’s motion for summary judgment in a false advertising case).
California – A Plaintiff’s Declaration Supporting Opposition to Summary Judgment SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO KEVIN KOTENCIK, PLUMBING, INC., on behalf of himself and all others similarly situated, Plaintiff, vs. SIEBENHORN PLUMBING & HEATING, INC., Defendant. Case No. 37-2010-00102671-CU-FR-CTL Declaration of Ken Kotencik in Support of Opposition to Defendant’s Motion for Summary Judgment I, Ken Kotencik, hereby declare as follows: 1. I am the Plaintiff in the above-referenced case and am competent to give this declaration. The facts set forth herein are within my own personal knowledge and belief. 2. I sell plumbing and other related goods and services under the Trade Name Classic Plumbing & Rooter. 3. As described in my Complaint, Defendant Siebenhorn Plumbing & Heating, Inc. falsely advertises and represents that its websites are for "Emergency Service – 24 hour service draws customers from all over San Diego, great for emergency calls, plumbing or heating." 4. As described more fully in Opposing Papers filed herewith, Plaintiff has submitted evidence to show that defendant’s claims are false and deceptive. In my opinion, those statements and representations are particularized to their advertising and flyers throughout California. (K. Kotencik Decl ¶4). 5. The actual advertisements at issue are particularized to their advertising and distribution in California and would help to propagate their deception. 6. Siebenhorn Plumbing & Heating, Inc., is not available for 24-hour Emergency Service. I have called their number to check on these representations and was told by their employee they are not available for 24-hour Emergencies. (K. Kotencik Decl ¶3-4) 7. As a consumer, I expect that ads offer goods and services that are advertised and that if I receive something in writing that offers me certain benefits, I should have them. For example, I expect to receive benefits I paid for and not be left hanging expecting 24-hour service but not receiving it. (K. Kotencik Decl ¶5-6).
Obtaining a Lawyer and Other Help
It is important to remember that a court declaration is valuable evidence. Professional legal assistance can be essential to preparing and/or reviewing the declaration. Every case is very fact specific, and there may be additional information the user should include in the declaration. Therefore, before you file a declaration with the court, you should consult a lawyer for guidance in preparing your declaration. Even if you are able to complete your own court declaration, you should consider having a lawyer review it and provide comments before you file it with the court.
If you need more help than you already have, and you can’t afford a lawyer, there are some resources available to assist you. Napa Legal Aid is a non-profit organization that provides free legal assistance, if you are a low-to-moderate income family. Napa Legal Aid can be reached at 707-252-1864. You can also visit www.napalegalaid.org for more information about their organization.
The California Courts website has a list of court information desks, self-help centers, and family law facilitators. (California Courts, Finding Legal Help). It is up to each individual county to decide whether or not to provide assistance at the courthouse, and range from limited services in some jurisdictions to extensive assistance in others.
You may be able to get an attorney to review your declaration using the ServiceNow program through the Napa County Bar Association. The program may be limited to a 30-minute consultation, and the consultation is usually done over the phone . The nonprofit ServiceNow program assists low-income Napa County residents who would like a referral to an attorney. Attorneys volunteering for this program agree to provide an initial consultation at a substantially reduced fee for family law cases and landlord-tenant cases. There is never a charge for domestic violence restraining order cases. For an initial consultation in family law, the fee is $40. For a landlord-tenant case and domestic violence restraining order case, there is no charge. To determine if you are eligible and to make an appointment, call (707) 265-2517.
The Modesto Bee recently published an article that gives a brief overview on the available legal assistance in Stanislaus County. Assistance options include: the Family Law Facilitator, Legal Aid, and the Divorce Center of Modesto. You can access the full article on the Bee’s website.
Depending on your circumstances you may be eligible for assistance from legal aid services. Although those services vary by county, you can just get online and do a search for legal aid services in your particular county, and it should show you what is available. You should also check to see if there are any pro bono programs available in your county as well.
There are a number of free online templates available for individuals seeking help in preparing their own court declaration, many of which can be found with an online search. However, you should be aware that these templates may vary in form, depending on the required format for the applicable court jurisdiction. It is also preferable to develop your own declaration rather than to use a template verbatim.