CBA Record January-February 2022

Back to Basics: Affidavit Refresher CLE Offered By Daniel J. Berkowitz, CBA Record Editorial Board Member A s part of the Young Lawyers Sec- tion’s long-running Practice Basics series, Margaret Mendenhall

Casey, Assistant Corporate Counsel at the City of Chicago, and Daniel J. Berkowitz, Assistant Attorney General at the Illinois Attorney General’s Office, shared their tips for drafting affidavits. The presentation began with a review of the basic elements necessary for an affida- vit: (i) a signed statement made (ii) under oath that is (iii) based on the personal knowledge of the signatory and is (iv) not supported by opinion, hearsay, or specula- tion. Illinois Rules (Ill. S. Ct. R. 191; 735 ILCS 5/1-109) and Federal Rules (Fed. R. Civ. P. 56; 28 U.S.C. § 1746). Affidavits act as a substitute for live testimony. When facts are established by affidavit and are uncontradicted by opposing affidavit (or evidence), those facts are taken as true and are admitted for the purpose of the motion. There are, of course, limits to affidavits. A self-serving affidavit with no other evi- dence does not create a genuine issue of material fact. National Union Fire Ins. Co. of Pittsburgh v. DiMucci , 2015 App (1st) 122725. In Illinois courts, strict compli- ance with Rule 191(a) is mandatory, and failure to attach documents relied upon in support of such an affidavit is fatal. Doe v. Coe, et al. , 2017 IL App (2d) 160875. The presentation transitioned from the basics of what is an affidavit to how attor- neys can use affidavits in their practice. Affidavits are generally used to establish facts or evidence to help a party convince a court to act. Affidavits are used in a variety of legal pleadings and proceedings. They could be used to support a Motion for Summary Judgment, a Motion for a Tem- porary Restraining Order, and a Complaint for Medical Malpractice (735 ILCS 5/2- 622), as well as in many other scenarios. Casey and Berkowitz emphasized that affidavits can be tested and contested. Opposing counsel may bring a Motion to Strike to test the appropriateness of an affidavit and whether it is applicable to the issue at hand. For example, a failure

port. Compare Avdic , 2014 IL App (1st) 121759, ¶¶ 26–28, with Madden , 395 Ill. App. 3d at 388.

to have a properly sworn statement will render the proposed evidence inadmissible in its entirety. See Judge-Zeit v. Gen. Park- ing Corp. , 376 Ill. App. 3d 573, 586 (1st Dist. 2007). Under Ill. S. Ct. R. 191(b), an opposing party can claim they need discovery before contesting an affidavit presented by the other party, though strict compliance with the rule is required. Kens- ington’s Wine Auctioneers & Brokers, Inc. v. John Hart FineWine, Ltd. , 392 Ill. App. 3d 1, 12 (1st Dist. 2009). Among the important considerations to keep in mind when drafting affidavits are the personal knowledge of the affiant and what kind of factual support the affidavit must include. A robust body of case law fleshes out what must be in an affidavit to demonstrate that the signatory to the affidavit has sufficient personal knowledge to attest to the contents of the affidavit. See, e.g., Nichols v. City of Chicago Heights , 2015 IL App (1st) 122994, ¶ 62; US Bank, National Association v. Avdic , 2014 IL App (1st) 121759, ¶¶ 26–29. Conversely, a number of cases explain why the affiant has insufficient personal knowledge. See, e.g., Essig v. Advocate BroMenn Med. Ctr. , 2015 IL App (4th) 140546, ¶ 47; Madden v. F.H. Paschen, S.N. Nielsen, Inc. , 395 Ill. App. 3d 362, 388 (1st Dist. 2009). A similarly robust body of case law consid- ers sufficient and insufficient factual sup-

Daniel J. Berkowitz is an Assistant Attorney General assigned to the General Law Bureau of the Office of the Illi- nois Attorney General, and a member of the CBA Record Editorial Board.

This CLE presentation may be viewed at learn.chicagobar.org and is free to CLE-Advantage Plan Members.

Need MCLE Credit to meet your state requirement? Visit learn.chi- cagobar.org to see a list of upcom- ing seminars and an archive of over 200 on demand seminars.

14 January/February 2022