Drafting an Affidavit

An affidavit is the written statement of a person which sets out facts that are within that person’s own knowledge. Affidavits are often required in court proceedings as the evidence of the person giving the affidavit (sometimes called the “depondent”). An affidavit must be signed by the person giving the affidavit and their signature must be witnessed by a lawyer (barrister or solicitor) or another properly qualified person (e.g. Justice of the Peace).

Courts will usually only accept affidavits that are written and witnessed in compliance with that particular court’s rules. This factsheet sets out some general guidance that will be applicable in most cases, but you should always check the rules of the court you are appearing in before filing (lodging) your affidavit with that court.

1. Appearances are important

• An affidavit should contain a series of short, numbered statements (paragraphs). Each of those statements should set out a fact relevant to the case.
• Your affidavit tells your story and the way it looks can change the impression the person reading it forms of you. It can make a big difference if you take the time to make sure that your affidavit is on the correct court form and looks neat and tidy. Make sure your margins are wide enough and don’t use bold or underlining to try and emphasise your points.
• Consider the use of headings to assist the reader to follow your story.

2. Introduce yourself

• Most template affidavit forms start with you setting out your full name, address and occupation.
• It can be a good idea to use the next paragraph to explain why you are making the affidavit – is it to respond to something the other party has filed or to support an application you have made?
• It is also okay to provide some small details about yourself at the beginning of your affidavit, like your family situation, qualifications or work history. This helps the court begin to form an impression of you and understand why you should be considered a trustworthy person.

3. Write in the first person about facts you know

• If you are using an affidavit in court proceedings it will be the basis of your case and the other party will be allowed to ask questions about its contents (known as cross-examination). Therefore, you need to be sure that the things you put in your affidavit are true and accurate.
• You need to tell the court what you did, saw, said or heard.
• You should write your affidavit in first person (“I went”, “I said” etc).
• You cannot include your opinion or what you think has happened – just what you know. If you find yourself writing “I think”, “I believe”, “I suggest”, “I assume” etc., then you should stop and think about whether you are trying to tell the court your opinion rather than a fact.
• You should not include your submissions (argument) about what the outcome of the case should be.
• Except in certain circumstances, you are not usually allowed to include facts about what someone else told you (this is called hearsay).

4. Keep it as simple as possible

• When you have been involved in a dispute for a long time it can be difficult to separate all the things that have frustrated you in the past from the things the court needs to know to decide the current legal dispute. When you are preparing an affidavit you need to think about how your story will appear to someone who has had no previous involvement in your case. You should also be selective about what you include (see our further tips on this below).
• The statements in each numbered paragraph in an affidavit should follow logically from the statement before. Sometimes this means facts need to be set out in chronological order.
• You should avoid including information that has previously been given to the court by you or the other party and information that is obvious or not in dispute.
• Write your affidavit using the language you use in every day speech because this is the way you will talk when you are cross-examined about your affidavit. If you try to use different language or legalese you may lose the meaning of what you are trying to say or contradict yourself during cross-examination.

5. Stick to what is relevant

• The laws of evidence apply to any affidavit filed in a court proceeding so you need to make sure that the information you provide is relevant and otherwise admissible (see factsheet Evidence and proof in civil proceedings).
• If you include irrelevant material you risk annoying the judge or affecting your credibility. Your credibility is your reputation for telling the truth and being trustworthy.

6. Don’t guess

• Your affidavit needs to be accurate. If you are not sure about something or can’t really remember, be honest about this.

7. Be specific about conversations

• Special care should be taken when describing conversations you have had.
• Set out the substance of the conversation (what exactly was said, by who, where), not your impression or opinion about what the conversation meant.

8. Be specific about timing and frequency, to the extent this is relevant

• It will help the judge follow your story if you specify the dates on which things happened, where it happened and who was present rather then saying things like “a few weeks later”.
• The same applies when you are making statements about how frequently a specific thing occurred. For example, saying something happened “at least three times a week” is better than saying something happened “often”.
• This rule needs to be balanced with point 5 (stick to what is relevant) above. Detail that does not add anything to the substance of your story should not be included.

9. Try to be factual, not emotional

• You will make a much better impression on the judge and be more persuasive if you put your emotions about your dispute to one side while you prepare your affidavit.
• Exaggeration, statements designed to embarrass the other side or your personal opinion about the other side’s character will only harm your credibility.
• You also need to pick your battles. Don’t niggle over small points, deny things just for the sake of it or bring up irrelevant events from a long time ago.
• If you include inappropriate or irrelevant material in an affidavit the other side may make an application for that material to be struck out (removed). If the court agrees, it might order you to pay the other party’s legal costs for bringing that application.

10. Give copies of all relevant documents and explain where you got them

• If you have any documents that relate to a statement (paragraph) in your affidavit you should attach them to your affidavit to support what you are saying.
• You should include an explanation of when and how the document came into your possession.
• Different courts have different rules about how to do this, for example, you may need to prepare certificates of exhibits, so be sure to check the correct procedure.