Affidavits and Declarations

A summary judgment motion is decided on papers, and affidavits and declarations are one of the ways parties put facts before the court. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, must set out facts that would be admissible in evidence, and must show that the affiant or declarant is competent to testify on the matters stated.¹ An affidavit is a sworn written statement averring admissible facts that the signer knows personally.² The Rule applies the same three conditions to declarations, so this section uses affidavit to cover both.

Not every dispute filed in court has to be tried. Parties can settle, can employ a mediator, and can agree to arbitration, one of the oldest and best-established alternatives to litigating in court.³ Summary judgment is the court's own device for avoiding a trial that would serve no purpose while still reaching a final determination on the merits.⁴

A motion for summary judgment works as a preview of the trial. It presents, usually in documentary form, the evidence the parties would put on at trial, so the court can decide whether any dispute remains that requires a trial. In a jury case, as Judge Posner has put it, the court asks "whether the state of the evidence is such that, if the case were tried tomorrow, the [non-moving party] would have a fair chance of obtaining a verdict."⁵ A preview misleads unless it resembles the trial. Rule 56 is designed to avoid an unnecessary trial, and the motion could not serve that function if courts, in deciding whether issues exist for trial, considered evidence that could never be admitted at trial.⁶ The affidavit conditions follow from that logic.

The conditions bind both sides. A party opposing the motion cannot rest on the allegations or denials of its pleading; its response, by affidavits or as otherwise provided in the Rule, must set forth specific facts showing a genuine issue for trial.⁷ A movant's affidavits face the same three conditions, because the Rule governs any affidavit or declaration used to support or oppose a motion.⁸

An objection enforces the conditions. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.⁹ The objection functions much like an objection at trial, adjusted for the pretrial setting. The burden falls on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated, and if the proponent cannot, the court will not consider the evidence.¹⁰

Four questions organize what follows. Did the signer perceive the facts? Are those facts the kind a witness may state in court? May this signer testify to them? And did the signer file the paper honestly?

Personal Knowledge

Personal knowledge asks who is speaking. An affidavit or declaration used on summary judgment must be made on personal knowledge,¹¹ so the signer must speak from what the signer knows firsthand and not from a guess or from what someone else said. A witness who testifies only that he 'guessed' something offers speculation that is not made on personal knowledge, and one who testifies that he 'heard' it offers testimony that is probably hearsay.¹²

A jail-suicide case shows the condition at work. The city supported its motion with affidavits from the police officers involved, and each officer averred to facts within his own personal knowledge showing that none of them knew, or should have known, that the prisoner was suicidal.¹³ The affidavits carried weight because the signers were the people who had been there. The plaintiff, who had alleged in her complaint that the defendant knew or had reason to know the prisoner was a suicide risk, could not answer with that allegation. To avoid summary judgment she had to set forth specific facts establishing a genuine, triable issue.¹⁴

The same test shows who may not sign.

Secondhand reports fail for the same reason. An affidavit from a reporter saying that unnamed officers told her the prisoner seemed calm that evening shows what the reporter heard, which was a conversation, and nothing she perceived about the prisoner. A lawyer who swears that a client said she watched a borrower sign a promissory note perceived the client's statement and not the signing. In each case the person who perceived the underlying fact must be the one who swears to it, because testimony that the signer 'heard' something is probably hearsay and cannot be admitted to create a genuine dispute.¹⁵

An affiant who was present can still fall short by stating a conclusion and omitting how the affiant knows it.

The borrower can object to the first affidavit, and the burden then falls on the lender to show that the statement is admissible as presented or to explain the admissible form that is anticipated.¹⁶ A drafter avoids the problem by saying what the signer perceived and, where it is not obvious, how the signer came to perceive it. Where the signer stood, what the signer saw or heard, and when give the court and the opponent something concrete to test, while 'I know' gives them a result with no trail back to a source.

The condition binds movant and opponent alike, since the Rule governs any affidavit or declaration used to support or oppose a motion.¹⁷ When an opponent objects that a statement lacks this foundation, the proponent carries the burden of showing admissible form.¹⁸

Admissible Facts

Personal knowledge asks who is speaking, and the admissibility condition asks what the paper says. The Rule requires an affidavit or declaration to "set out facts that would be admissible in evidence,"²² so each statement must be content a witness could properly give from the stand. The two conditions can come apart. A signer who heard a rumor repeated knows firsthand that the rumor was spoken, but the rumor is still hearsay when offered to prove what it asserts.

The admissibility tests apply to all evidence offered on the motion. Rule 56(c)(1)(A) lists the materials a court may consider, but discovery materials do not automatically qualify. Each must be admissible under the rules of evidence before it becomes part of the record for summary judgment.²³ The reason is the one that drives the whole Rule: a motion that weighed evidence that could never be admitted at trial could not avoid an unnecessary trial.²⁴

An oath does not change what a statement is. Suppose a deponent testifies that he 'heard Bill say that Joe told him that Larry did it.' Even if he reports the conversations accurately, the testimony is inadmissible as unreliable hearsay, even though he testified under oath.²⁵ Testimony given at a deposition receives no special protection, because a deposition is only one of the listed record materials and each statement in it must still be admissible.²⁶

Speculation fails the same way. If a witness testified only that he 'guessed' that Celotex products were used at a job on which he worked, the testimony would be inadmissible as speculation not made on personal knowledge. If he testified that he 'heard' the same thing, it would probably be inadmissible hearsay. In either case it could not be used to create a genuine dispute.²⁷

The Rule asks for facts, and an opposing party's response must set forth specific facts showing a genuine issue for trial.²⁸ An affiant who swears that she watched the driver run a stop sign reports a fact. An affiant who swears that the driver was careless announces the result a jury would be asked to reach and gives the court nothing to test.

Hypothetical Illustration

A tenant sues a landlord for ignoring a roof leak, and the landlord moves for summary judgment on the ground that it first learned of the leak in April. The tenant files an affidavit with three numbered paragraphs. Paragraph 4 states that on March 2 the tenant handed the building manager a written note describing the leak and kept a copy. Paragraph 5 states that a neighbor told the tenant the landlord had known about the leak for a year. Paragraph 6 states that the landlord was negligent in ignoring the problem. The landlord objects to paragraphs 5 and 6. The court considers paragraph 4 and disregards the other two. Paragraph 5 repeats an out-of-court statement by a neighbor, and paragraph 6 announces a conclusion with no fact behind it. Paragraph 4 survives because the tenant did the handing and could testify to it, and it is enough to put the landlord's April date in dispute. Had the affidavit contained only paragraphs 5 and 6, that date would stand unanswered.

The objection runs against material cited to support or dispute a particular fact,²⁹ so it removes the paragraph that fails and leaves the admissible paragraphs in the record. Once an objection is made, the proponent must show that the material is admissible as presented or explain the admissible form that is anticipated. The neighbor's report in paragraph 5 might be saved by a hearsay exception or by sworn testimony from the neighbor. If the proponent can do neither, the court will not consider that evidence.³⁰ Surviving the objection does not win the motion. The facts that remain must still show whether, if the case were tried tomorrow, the nonmovant would have a fair chance of obtaining a verdict.³¹

Exam Analysis Steps

Because the admissibility condition applies to one assertion at a time, test an affidavit paragraph by paragraph:

Identify the single fact the paragraph asserts, and set aside words such as negligent or knew that state a result and not an observation.
Ask what the signer personally saw, heard, or did that supports the fact, and treat a guess or a report of what someone else said as a defect.
Ask whether a witness could give the same account from the stand, since an oath does not make hearsay admissible.
If the opponent has objected, ask whether the proponent has shown that the material is admissible as presented or has explained the admissible form anticipated, and drop the paragraphs that fail.
Carry the surviving paragraphs into the question whether a reasonable jury could find for the nonmovant.

Competence to Testify

The last condition is that the paper "show that the affiant or declarant is competent to testify on the matters stated."³⁶ Competence asks whether this signer may be the witness on these matters, meaning a person who could give the testimony at trial. Personal knowledge asks whether the signer perceived the facts, and admissibility asks whether the content is the kind a witness may state. The Rule lists competence as a separate condition and requires the paper itself to show it.

The condition has the same source as the other two. An affidavit stands in for testimony, and a motion previews the evidence the parties would present at trial.³⁷ A statement from someone who could not give that testimony at trial could never be admitted there, and Rule 56 could not avoid an unnecessary trial if courts weighed evidence that could not later be admitted.³⁸

The clearest case is a signer who has firsthand knowledge and still may not testify.

Whichever label a court attaches to the defect, incompetence of the signer or inadmissibility of the content, the result is the same, because evidence that could not be admitted at trial does not count on the motion.³⁹ The example also shows why the conditions need separate checks. A signer can pass one and fail another, and the court needs all three satisfied before it has something it can count.

Because the Rule says the paper must show competence, a careful drafter lets the document itself establish who the signer is and why the signer can speak to the matters stated. A court should not have to infer those things from silence.

A party who doubts the signer's competence can raise the point through the Rule 56(c)(2) objection that the cited material cannot be presented in a form that would be admissible in evidence.⁴⁰ The condition governs any affidavit or declaration used to support or oppose a motion, so the opponent's papers and the movant's papers face the same test.⁴¹

Bad-Faith Affidavits

Rule 56(h) adds a sanction that the content conditions do not supply. If the court is satisfied that an affidavit or declaration was submitted in bad faith or solely for delay, it may, after notice and a reasonable time to respond, order the submitting party to pay the other party's reasonable expenses, including attorney's fees, incurred as a result.⁴⁴ An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.⁴⁵ The order is discretionary, and it reaches only the expenses the offending paper caused.

The three conditions in Rule 56(c)(4) screen what a sworn paper contains.⁴⁶ They cannot reveal whether the signer is telling the truth, because a paper can satisfy each condition on its face and still be false. A false affidavit filed to manufacture a dispute forces the opponent to spend money investigating and rebutting it, and one filed to stall a ruling costs the opponent time. Rule 56(h) shifts the resulting expenses to the party who caused them.⁴⁷

The sanction turns on the submitter's purpose, and that separates a bad-faith affidavit from a merely inadequate one. An affidavit that rests on a guess, repeats hearsay, or lacks personal knowledge fails the Rule 56(c)(4) conditions, and the opponent's remedy is the objection, after which the court will not consider evidence the proponent cannot show to be admissible.⁴⁸ A defective paper does not by that fact meet the description of one submitted in bad faith or solely for delay.⁴⁹

The sanction does not reach an affidavit that is merely weak. It is reserved for one submitted in bad faith or solely for delay.

The notice-and-response requirement protects the accused. Bad faith concerns what the signer knew and intended, which the paper rarely shows on its face, so the Rule requires notice and a reasonable time to respond before any order for expenses.⁵⁰ The attorney appears in the clause on contempt and other sanctions, so a lawyer who prepares such a paper is exposed too, but the order to pay expenses runs against the submitting party.⁵¹