The Witness Who Didn't See the Light: A Declaration That Cannot Be Filed
Your supervising attorney will file a motion for summary judgment in a collision case. She gives you a draft declaration the client prepared for the eyewitness, Rosa Lima, and asks you to 'clean it up and get it signed' by 5:00 p.m. tomorrow, the filing deadline. Your interview notes from last week record: Ms. Lima was standing at a bus stop, heard brakes, and turned to see the defendant's box truck in the intersection after the impact; she did not see the light. The client's draft says: 'I saw the truck run the red light and strike the plaintiff's car.' The draft also says: 'The truck was going at least 55 miles per hour,' a figure Ms. Lima told you she got from another bystander. Ms. Lima speaks Portuguese and reviewed a Portuguese translation of a summary of the draft, but no one read the English declaration to her. She rents her apartment from the client's brother and mentioned she 'doesn't want trouble.'
1. Rewrite the problematic statements in a form you could send to Ms. Lima for signature, and explain each change.
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Three changes, each driven by personal knowledge and admissibility.
Light and impact. Original: 'I saw the truck run the red light and strike the plaintiff's car.' Replacement: 'I was standing at the bus stop on the corner. I heard brakes and looked up. I saw a box truck in the intersection and a car that had been struck. I did not see the traffic signal before the collision, and I did not see the impact.' The original asserts two facts she told you she did not perceive. An affidavit supporting summary judgment must be made on personal knowledge and set out facts that would be admissible in evidence. A statement she cannot defend at deposition converts a helpful witness into a perjury risk and a sanctions target.
Speed. Original: 'The truck was going at least 55 miles per hour.' Delete it. It is hearsay from an unidentified bystander with no foundation, and it is an estimate she cannot support. If her own perception supports speed, she may say 'the truck was moving fast' - a lay opinion rationally based on what she saw.
Comprehension. Add: 'I am signing this declaration voluntarily. The English text was read to me in Portuguese by an interpreter, and I understood it.'
2. What must happen before the declaration is signed and filed?
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Before signature: (a) have the English declaration translated by a certified Portuguese interpreter, and have the interpreter read the English text aloud while Ms. Lima follows a written Portuguese version; (b) have her initial each paragraph, not merely sign the last page, so she cannot later say paragraph four was never explained; (c) check every assertion against your interview notes and strike anything not there; (d) identify the interpreter by name in a short interpreter's declaration, because the defense will depose her; (e) address the landlord relationship on the record - it is not disqualifying, but it will be used to impeach, and she should not be surprised by it; (f) have the declaration signed under penalty of perjury and notarized if a rule requires it.
Do not tell her what to say about the light. If she now says she did see it, take a fresh statement and rewrite the declaration around what she actually saw. The purpose is to record her testimony, not to build the version the motion needs.
3. What do you tell the supervising attorney about the deadline?
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Tell her, by phone followed by an email, that the declaration cannot be filed as drafted and cannot be filed tomorrow morning unless these steps are completed. Then give her the options: file the motion with a corrected declaration that omits the light and speed statements, which may leave a disputed fact unresolved and risk denial; seek a short extension from the court or opposing counsel; or, if the declaration is essential, seek relief under the summary-judgment rule allowing additional time for discovery.
What you must not do is file the client's draft and let Ms. Lima sign it, or sign an attorney verification to a fact you know is unsupported. Candor to the tribunal and the prohibition on offering false evidence apply to affidavits, and a summary-judgment sanction is a much worse outcome than a late filing. The decision belongs to the supervising attorney, but she needs the facts now, not at 4:55 p.m. Put the substance of the conversation in a file memo the same day.