How to write a declaration

June 5th, 2014 by Briana Cummings

Declarations provide the factual basis for claims made in memoranda of points and authorities, briefs, and writs. (I.e., every statement of fact in a brief must be properly supported with a citation to a declaration.) Here’s how to write a really good declaration:

First, write the declaration in the declarant’s own voice, using her own language, from her own perspective.

Second, tell a good story. The declaration should be a narrative, and it should be comprehensive with regard to the incidents it relates.

Finally, follow the rules of evidence. Everything in a declaration must be admissible as if it were testimony in court. There must be foundation (how the witness knows what she knows) and there must not be inadmissible hearsay. Show personal knowledge for every claim in the declaration.

For example, do not say, “I applied for General Relief last week but I can’t get it for six more weeks.” Instead, say,

I went to the County Welfare Department office on Lincoln Avenue on June 4, 2012. I remember because it was a Monday, and I had spent the weekend sleeping outside. I spoke with Ms. Jones. I told her I am homeless. She gave me food stamps that day. She told me I would have to come back for an appointment in five weeks to discuss my General Relief application. I told her I need help now and asked if I could come in sooner. She said, “No exceptions.”

Conclusions and opinions (“they hate poor people”) without foundation are improper; impressions (“I felt discouraged”) are fine. Avoid the passive voice (e.g., “documents were received”). Use of the passive voice is a tip-off that the speaker lacks personal knowledge and is relying on hearsay.

Source: “Practice Tip: Drafting the Winning Declaration,” Western Center on Law & Poverty.

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