Musings regarding affidavit drafting

Commenter martin asks another very good question about affidavit practice and ethics:

I wonder who actually drafted these affidavits. Elliott himself or is someone summarizing his testimony and sending him the afffidavit to be signed? And if so-what is being prompted/discouraged?

My response is sufficiently longwinded that I decided to make it here as a new post, rather than in the comments to my recent post about Captain Elliott's affidavits.

I'd guess that both affidavits were initially drafted by lawyers, with Captain Elliott's participation and cooperation, for him to then review and sign.  My further guess (for reasons I'll explain in a moment) is that the second one, but not the first one, might have been drafted by Mr. O'Neill or another experienced trial lawyer.  But those are just wild guesses.  The first one's a safer bet:  Unless they were JAG officers, I wouldn't expect many retired career Navy captains to know the "magic lingo" required to put the affidavit into admissible format, but both of Captain Elliott's have that language.

Most witnesses who are willing to give an affidavit in the first place are genuinely grateful for the drafting help.  Normal, ethical practice is for the lawyer who drafts the affidavit to do so only after he's first questioned the witness.  The lawyer then writes the affidavit in much the same way that the lawyer would elicit the same substance from the witness in live testimony on the witness stand.  Either way, the lawyer of course wants to exercise his professional skill to give clarity, structure, and coherence to the testimony.  There's nothing unusual or remotely unethical about doing this.

A major difference between affidavit testimony and live testimony, of course, is that affidavits don't contain surprises to the lawyer who's drafted them.  But either can be artfully constructed to dodge around certain issues. 

Artful dodging is usually a tactical mistake, however, if you expect that the witness is going to be interrogated about the affidavit or cross-examined after his direct examination testimony. It's standard cross-examination practice, when asking a witness about an affidavit or other written statement he's signed, to suggest that the lawyer who drafted it put words into the witness' mouth and that the affidavit was therefore unreliable — like a series of "leading questions" of a friendly witness, writ large and literally. 

On the witness stand, a lawyer's not allowed to lead a "friendly" witness (usually meaning a witness whom his own side has called) during "direct examination," at least on substantive matters.  "Leading" questions are those which suggest a particular answer; it's also sometimes called "coaching" the witness.  (Leading questions are not only okay to use when cross-examing the other side's witnesses, however, but in fact are highly recommended.)  When lawyers are restricted to asking open-ended, non-leading questions, they sometimes get answers they weren't expecting.  Avoiding just such surprises is a big part of proper "witness preparation" — which might more accurately be called "witness-lawyer preparation," but which trial lawyers colloquially call "woodshedding the witness" — before he gives oral testimony as a "live witness" at a trial, a hearing, or a deposition. 

Whether you're collecting the witness' version of events to put into affidavit form, or helping prepare him to give live testimony, it's unethical to suggest testimony for the witness to give.  In practice, this is a very tough tightrope to walk, however.  A perfectly legitimate part of witness preparation is to help the witness anticipate ways that the other side may try to distort or twist his testimony on cross examination:  "If you use the word 'zoom,' the other lawyer is going to try to make that into you saying that the car was traveling over the speed limit.  Do you mean to say that?  No?  Okay then, what other words could you use instead of 'zoom' that are accurate but not so likely to be twisted?"  That's okay.  "Dammit, don't say 'zoom,' I want you to stick with 'proceeded cautiously, driving within the speed limit,' when you're on the stand!"  That's not okay.

Experienced trial lawyers have seen and done so many cross-examinations themselves that they know the traps to avoid when drafting affidavits.  They recognize that by creating a written version of the witness' testimony, they're giving their opponents a static target to shoot at — one that can be studied ahead of time, one that a skillful cross-examiner can use to lay and then spring his traps.

Thus, to guard against predictable lines of impeachment, my own practice — and that of most experienced trial lawyers I know — is to spend some extra time with one's potential affiant, before he signs the affidavit, going over it with him in detail.  The witness should clearly understand that when he signs it, the testimony in it becomes his.  I warn affidavit witnesses that having to fall back on "I didn't mean to say that, the lawyer put that in there without my noticing it" will only make me and the witness look bad. 

One of the most common mistakes that inexperienced lawyers make when drafting affidavits is to use language that the witness himself wouldn't have used.  When I write affidavits from my notes of a witness interview, I try to use the same words he's used himself to the extent I can recall them or included them in my notes.  When I can't recall the exact language, or when I'm interpolating — writing transitional language, filling in the gaps, on nonsubstantive matters — I imagine that I'm writing a monologue in the witness' own voice.  Sometimes I'll have the witness read the affidavit I've drafted back to me, aloud, before he signs it — which really helps ensure that the witness has read it all carefully, and that the affidavit uses wording he understands and will be comfortable with if he's challenged on it.

Most experienced trial lawyers also pay particular attention to the "personal knowledge" allegations when drafting affidavits.  They're careful to avoid nudging their witnesses out onto limbs that can easily be sawn off.  It's far better to include a qualification like, "My understanding from reading the accident report is that the light was red for northbound traffic when Mr. Jones' car entered the intersection from the south" than it is to subject your affidavit-witness to brutal cross-examination along the lines of, "You swore here the light was red!  You swore that everything you were saying in the affidavit was within your 'personal knowledge'?  But you weren't there that night, were you?  So since your sworn written testimony in this affidavit was contradictory and untrue, why should the jury believe your sworn live testimony from the stand?"  (Actually, a good trial lawyer wouldn't ask that last question, because it's argumentative and it gives a smart witness a chance to explain away the problem; he'd save it instead for closing argument, when the witness can no longer smooth things over.)

The second affidavit signed by Captain Elliott does a better job of avoiding such pitfalls.  Of course, that could just be because Captain Elliott had already been sensitized to the problems with the first affidavit — for example, if he was "cross-examined" informally by the Boston Globe reporter about the state of his personal, eyewitness knowledge as to whether Kerry shot the fleeing Viet Cong soldier in the back or not.  That could certainly account for the Globe's "terrible mistake!" quote — that is, they got Captain Elliott feeling panicky in the interview because he thought they'd exposed a falsehood in the first affidavit.  Been there, seen that done many, many times, friends and neighbors, even with smart and honest witnesses — in fact, the more honest they are, the greater their degree of panic!

And if I'm going to continue speculating, my wild guess is that the original affidavit that Captain Elliott signed might have been drafted by a lawyer for the publishing company — which may, quite prudently, have been laying a foundation against possible defamation litigation — rather than by a seasoned trial lawyer.

That's probably more than you or anyone else ever wanted to hear from me on this topic, martin.  But that's why I have that big warning at the top of the blog — "longwinded" probably ought to come before "crusty," in fact.