Legal Writing – Declarations

In the last two posts, we discussed some of the key points about legal correspondence.  This post will be dedicated to exploring the uses and construction of a declaration.

The declaration is a legal document that provides the factual support for a legal argument.  It is most frequently attached to a motion or other request for relief.   It is the means by which the facts are put before the court in a way that is acceptable under the court rules.

The declaration is signed under penalty of perjury which makes the facts being attested to acceptable to the court as support for the request being made.  Typically, you might have a motion for Summary Judgment or to Compel Discovery and attached to the motion, in addition to the Memorandum of Law, the Notice of Motion and any exhibits, would be a declaration of the attorney and/or the party attesting to the facts foundational to the legal arguments being made.

The following is typical of how a declaration would start:

I, ________________ [name of the declarant or person making the declaration], declare as follows:

1.  I am the ________________________[plaintiff, defendant, attorney for plaintiff or defendant, etc.]

This is a statement of the position of the declarant vis-a-vis the litigation.  It would identify any potential bias the declarant might have so the reader of the declaration could take that into account when weighing it.

A typical paragraph 1 for an attorney would be as follows:

  • I am an attorney licensed to practice in all of the courts in the State of California, and I am the attorney of record for ___________ [plaintiff, defendant, petitioner, respondent, moving party] herein.   The information contained in this declaration is within my personal knowledge, and if called upon to testify to it, I could and would do so competently.

This paragraph establishes the personal knowledge and competency requirements for testimony.

The paragraphs which follow will lay out the foundational facts for the relief being requested.  The declaration could have 3 paragraphs or it could have 103 depending on the number of facts that need to be laid out.  It is best to have short paragraphs that establish one or two facts each.  The declaration ends with a statement that the declaration is signed under penalty of perjury.

The writing of declarations is part art and part science.  The stronger the writing, the more convincing and effective the declaration.  Writing strong declarations takes practice.  The ability to put together a coherent and cogent declaration is a skill highly desirable and sought after in a paralegal and in an attorney.

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