The other day, another attorney asked me to provide my opinion, in affidavit form, about the value of a personal injury case, in support of a motion in the Federal Court. I suggested a declaration instead of an affidavit.
Both Federal and State courts in Oregon allow declarations for most purposes in lieu of affidavits, including in support of or in opposition to motions for summary judgment.
Every time this comes up, I spend a frustrating few minutes trying to remember where to find the statute or rule to verify the required language. This post points to the statutory or rule language for each Court.
28 U.S.Code Section 1746
Unsworn declarations under penalty of perjury
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)”.
(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.
Note that the language differs for declarations signed outside of the United States.
Oregon State Court cases:
Oregon Rules of Civil Procedure 1E. Use of declaration under penalty of perjury in lieu of affidavit; “declaration” defined. A declaration under penalty of perjury, or an unsworn declaration under ORS 194.800 to 194.835, if the declarant is physically outside the boundaries of the United States, may be used in lieu of any affidavit required or allowed by these rules. A declaration under penalty of perjury may be made without notice to adverse parties, must be signed by the declarant, and must include the following sentence in prominent letters immediately above the signature of the declarant: “I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.” As used in these rules, “declaration” means a declaration under penalty of perjury.
Some other States similarly allow declarations. E.g.
Revised Code of Washington 9A.72.085;
Utah Code Annotated § 46-5-101;
Rule 7(g) of the Rules of the Circuit Courts of the State of Hawai`i
The declaration is recommended as more efficient, especially for clients who will not have to seek a notary.
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