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Injury Attorney University: Affidavits
How does an injury attorney bring a witness’ testimony before a court? Most people think of Perry Mason or some other television lawyer. The injury attorney calls the witness to the witness stand and examines him. The witness usually breaks down and confesses to whatever the lawyer is trying to prove.
However, in real life, most cases never actually get the trial. (Nor do most witnesses actually “confess.”) Statistically, the great majority of cases settle before trial. However, there are quite often preliminary proceedings. In these proceedings, the injury lawyer needs witness testimony. Even though the proceedings may be entirely on paper. No witnesses are called to the stand. Sometimes the lawyers themselves don’t even go to the courthouse.
For example, sometimes an injury lawyer files a claim, and the defense lawyer tries to toss it out of court. The defense lawyer may argue that, even if everything in the claim is true, it doesn’t amount to a valid lawsuit. Of course, the injury lawyer argues just the opposite.
In such a situation, the witnesses’ testimony is presented to the judge in the form of written statements under oath. The statements are called affidavits. A notary public attests to the fact that the witness was under oath when signing the affidavit. If anything in the affidavit is false, the witness could be prosecuted for perjury. In New Jersey, a licensed attorney can also fulfill this role of a notary. That is not the case in all states.
Generally, affidavits cannot be used at trial instead of live testimony. At an actual trial, you need live witnesses, testifying from the witness stand. This is because a written statement is usually considered hearsay. However, an exception may be made in small claims court. In small claims court, the rules of evidence are not strictly enforced. There, affidavits may be used at trial.
Here you can read the actual New Jersey Court Rule pertaining to affidavits.