Affidavits

By George Hathaway, Nick Ciaramitaro, Perry Bullard, and Karen Willard In September, we reviewed executive orders and discussed comments that we obtained in a survey of readers' impressions of the way executive orders are written.

This month we will review readers' impressions of affidavits. Affidavits are among the worst written legal documents of all time. They have a terrible title, and they are full of legalese.

An affidavit is a sworn statement taken by a notary. Affidavit is the third-person singular, perfect tense of the Latin verb affidare and means "he or she has sworn an oath." But it makes more sense to title the document "sworn statement" instead of "affidavit."¹ An affidavit ends with a notary's "jurat," which is usually written "Subscribed and sworn to before me on this ____ day of ______, 1995." Jurat is the third-person singular, present tense of the Latin verb jurare and means "he or she swears." Again, it makes more sense to call this clause a "sworn to" clause and to write it "Signed and sworn to before me on ______, 1995."

To see how readers feel about the way affidavits are written, we first determined:

• What does the writer of an affidavit want to achieve? To get statements from a witness that can be introduced as evidence in court.
• Who are the readers? The witness and the court.
• How will the readers use the affidavit? To admit the evidence in court or to learn about the statements. We then asked ten members of the general public:
• Can you understand the following affidavit? (Figure 1.)
• What is your impression of the way the affidavit is written?
• Which style do you prefer, Figure 1 or Figure 2? Six said they could understand the affidavit; four said they could not. Seven thought the affidavit was written in an unsatisfactory way. Nine preferred Figure 2. One thought neither Figure was clear. Individual comments were:
• I can understand both, but Figure 2 is easier to read, is more understandable, is more clear, is more concise, and gives the same information as Figure 1.
• Figure 1 is antiquated gobbledygook; Figure 2 is clear and straightforward.
• Figure 1 is intimidating and confusing, and requires additional time for the average layperson to read and understand due to legalese.
• I prefer Figure 2, but I would like a plain English form of the statement "Jane Doe, being first duly sworn, deposes, and says" added. This seems to make the statement more official.

Affidavits contain some of the worst legalese written in Michigan. These affidavits should be called "sworn statements" and should use a clear, direct, plain English format. Lawyers, legal assistants, and legal secretaries can prepare sworn statements as in Figure 2 right now. These plain English sworn statements are just as valid as legalese-filled affidavits. Nevertheless, to promote the use of plain English sworn statements, we have written a proposed amendment to the Notaries Act. See Figure 3. This amendment does not abolish old forms or prescribe mandatory new forms. It simply provides statutory authority for the voluntary use of plain English sworn-statement forms. It also provides statutory authority for voluntary use of plain English acknowledgement forms that we discussed in a previous column.² Representative Nick Ciaramitaro introduced this Bill into the Michigan House of Representatives in September 1995.

Footnotes

1. This is exactly what is done in the Michigan Construction Lien Act. Section 110 of the Act (MCL 570.1110; MSA 26.316(110)) prescribes a form for an affidavit called a "sworn statement."

2. Hathaway, Plain English Acknowledgement Forms, 70 Mich B J 338 (1991).

George Hathaway is a senior real estate attorney at the Detroit Edison Company. Perry Bullard is a former Michigan state representative. Nick Ciaramitaro and Karen Willard are members of the Michigan House of Representatives.