Courts generally require testimony to be live. We want juries to watch how people answer important questions about your case so they can assess for themselves whether to believe it or not. However, there are some kinds of testimony where there's no concern about a witness' credibility. In those cases, a judge may allow the testimony into the case through an affidavit. What is an affidavit?

Answer: Affidavits are a tool to allow testimony into court without the witness being physically present.

In modern trial practice, courts allow some forms of out-of-court testimony that, while not central to your case, is needed. This testimony can be submitted on paper as a sworn statement—that's what an affidavit actually is. Below, we'll discuss how and why courts deviate from the standard rule that witnesses have to be put on the stand to testify.

Litigants Can Only Use Affidavits for Limited Purposes.

Lawsuits would be rather mundane affairs if every witness could give their side of the story just by writing it out on a sheet of paper. Each case would come down to written statements saying the defendant caused the accident on one side, and no, the plaintiff is at fault on the other. You don't have to be a lawyer to know how worthless this would all be. How would the these statements be judged? By who has more? By whose are more passionate and/or detailed? Instead, we want important testimony cross-examined in the plain light of day before the jury, in order for jurors to assess the witness' credibility.

But there are dozens of less important issues where live testimony testimony doesn't make a difference. No juror is judging the credibility of a hospital administrator regarding the cost of medical care that a victim receives. They just need to know that the hospital billed the victim for services.

That's where affidavits come in. When the only determination that matters to a case is whether or not a piece of evidence is genuine (like the hospital bill we just discussed), a sworn statement from the hospital testifying that the bills are legitimate is all a court needs to accomplish that.

You may here lawyers or courts call this process proving up records. For example, let's say you want a 911 call transcript to come into evidence. It's great for your case because the person who called told the 911 operator that "I just saw this blue car [yours] hit by a red car [the defendant's] after the red car ran a stoplight." It might seem logical that all you'd have to do is order the transcript from the police department and enter it into evidence. But the court doesn't just automatically believe you that the transcript is legitimate.

After all, it could be a recording that you and a friend made in your garage for all we know and not the real transcript. So rather than make the poor guy or woman who works in the police records department have to trudge down to court every time a trial happened and testify that, yes, that is the transcript from the day of the accident, courts allow that person to authenticate the transcript through an affidavit.

Affidavits can be used not only for 911 transcripts, but police reports, business records, psychological records, and medical records. These simple documents require the person responsible for managing an entity's records to swear before a notary public—a person certified to administer an oath—that the documents or recordings are true, complete, and correct. If done correctly, a court will admit the documents into evidence.

Why Affidavits Matter for Your Case

The old axiom that "for want of a nail, a shoe was lost, for want of a shoe, a horse was lost, and for want of a horse, the battle was lost" applies in personal injury cases. Great claims have been lost because lawyers forgot to pay attention to details like making sure all the affidavits required were done, and done correctly. In other words, evidence necessary to make a case never made it into court because some lawyer forgot to get an affidavit.

Obviously, an attorney should never jeopardize a client's case over something as seemingly trivial as not obtaining an affidavit. Still, it's a problem that regularly occurs. Things like getting evidence admitted and case construction aren't something they teach in law school. That's where the value of an experienced attorney really shines. Generally speaking, if an attorney is going to have a long, thriving practice, they're going to have to put in place systems that prevent silly mistakes, like forgetting an affidavit, from occurring during litigation.

For more than three decades, the attorneys at Grossman Law Offices have helped Texans who've lost a loved one or suffered a serious injury. If you'd like to know more about affidavits or discuss your case, please reach out to us anytime.