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Hello. #Teachblade here. My
Former Students called me
"Street Teacher". Why? I take
teaching to "the Real World", of
Law Office Procedural Practice
so Paralegals will know how
to earn Livable wages to take
care of their Families and get
some of the American Pie--the
moment they leave the class-
room and enter the law offices
of even "Super Lawyers".
That's right! Paralegal Grads
had Instant Functionality in
making money as a Paralegal.
It's "Why" -- I taught 30 years.
You've got to have a "Why" to
teach 30 years!!!
PARALEGAL
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One of the most prolific pleadings that
a Paralegal will prepare in a law office
is a Supporting Declaration. If it is not
Court-Compliant, then it is fatal to its
purpose. Its purpose is to serve as
"written testimonial evidence" in lieu
of "oral" testimony or argument. If
the declaration is fatal, then it is the
functional equivalent of No evidence
at all. If there's no evidence by way
of the supporting declaration (in a
summary proceeding such as a
Motion, then the Motion will not be
granted. If the motion is not granted,
then you have an unhappy lawyer.
(S/he is pissed.) If an unhappy
lawyers, it's probably because he or
she may not get paid. If the lawyer,
does not get paid, then you may . . .
You get the point, so learn it right
and you'll never lose a motion be-
cause of a defective declaration.
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RECOMMENDED ARTICLE FOR YOU:
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PARALEGAL LAW OFFICE SKILLS TIP FOR "ADDED VALUE"
The Nuts & Bolts of Drafting a Declaration
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If a Paralegal begins work in a Law Firm handling Civil Litigation, such as Family Law, Personal Injury, Unlawful Detainers, Probate, etc., then there won't be a pleading to draft and prepare in final format, more frequently and more important to the success of the case, than the Declaration for the reason stated above in the "bullet point".
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What follows are the nuts and bolts preparation and formatting of a Declaration in a California State Court. The substance of the Declaration and its formatting is generally universal, excepting the mandates of any Local Rules of Court in your State's jurisdiction. You should read and follow the discussion regarding set up because what the Declaration contains And its format are equally critical to your Declaration being admissible as Evidence.
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If the Declaration is Fatal, then your Lawyer has no "Written Testimony" (or Evidence that is Hearsay, but admissible under the Hearsay Exception of "Prior Testimony" or "Past Recollection Recorded") in support of his or her motion; which means the motion will not be granted; which means your Lawyer will be an unhappy camper, because she or he will know why his or her motion was not granted. (The Judge is ticked off and hence, will tell your Lawyer his declaration was fatal and motion was denied -- in front of the whole world in the courtroom. OMG.)
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BE CERTAIN -- that one of your paragraphs [just after the "competency" clause] states the facts surrounding your lawyer's attempt to "informally" resolve the issue that now brings your lawyers before the court seeking relief. Attach all supporting documents evidencing prior attempts to informally resolve, i.e., letters sent "certified mail, return receipt requested" (in anticipation of a motion).
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Judges rely heavily on the Declarations to shorten hearings; and the Judge knows the Declaration represents Evidence. The statements made in the Declaration are the functional equivalent of swearing on a witness stand to tell the truth.
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In lieu of that physical act of swearing, the Declaration is accepted as "Prior Testimony" or "Past Recollection Recorded", both exceptions to the Hearsay Rule" and therefore admissible into Evidence.
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If you've done one Declaration in the following manner, you have done 10,000; because the format and requirements are the same; and your Declaration will be "court-compliant". It's part and parcel of The Legal Process of any Motion, so here's a quantum kick.
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As you know from a recent Blog on the Hearsay Rule and ADEM P. BOPP (Exceptions to the Hearsay Rule), an out-of-court statement now being brought into court to prove the truth of the matter asserted, is classic Hearsay. One of the exceptions to the Hearsay Rule is "Prior [written] Testimony". A Declaration is in fact Hearsay, but becomes an exception (of "Prior Testimony) because it is "sworn" testimony; and therefore, admissible as evidence.
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(The Mandatory last paragraph of any declaration is its "sworn" statement: "I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on August 20, 2013 at Los Angeles, CA.") It's the functional equivalent of a physical swearing in a court of law.
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Also, there are two (2) mandatory clauses required in a Declaration to avoid it becoming fatal, and allowing for its admissibility as testimonial evidence; namely, the "Competency" Clause and the "Penalty of Perjury" Clause. Both clauses are identified in the Declaration set forth below. The Penalty of Perjury Clause below is the functional equivalent of raising one's hand in court and swearing to tell the truth, the whole truth and nothing but the truth, so help you God.
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Courts love Declarations because it helps to dispense with "live" testimony in court where the court's calendar of cases is quite heavy; and budget constraints makes the declaration imperative. Each and every Declaration, regardless of how short or lengthy, (keep it short), requires the two mandatory clauses identified in the Declaration below. Every other statement, in between the two mandatory clauses, should be statements of FACT--not conclusions nor opinions--but facts.
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(Only witnesses who have been authenticated as Expert Witness may testify as to his or her "opinion". Everyone else must testify to those things they perceived with their senses and state those perceptions as statements of fact.
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The Mandatory Competency Clause "authenticates" the witness (or declarant speaking in the Declaration)--just like a Lawyer would have to authenticate a witness in court. The written Competency Clause requires the declarant (the one signing the declaration) to state that s/he would testify competently, (meaning they're not a minor, have not been adjudged incompetent and are not an "octogenarian". Also, that the declarant is truthfully testifying); and that the declarant is stating facts that are within his or her own personal knowledge or observation.
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A fact can also be based on information and belief that the witness (or declarant) believes to be true; that s/he would have evidence available to present to the court to establish the truth of their statement; and would be written as follows: "I am informed and believe, and based thereon allege that trial may already be set and outstanding discovery would not be completed within 30 days before the scheduled trial."
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The Mandatory Penalty of Perjury Clause is a sworn statement of the declarant that what has been written is true, factually correct and that the declarant is swearing under penalty of perjury; and states when and where the declaration was executed.
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If either one of these two (2) mandatory clauses is missing from the declaration, then it is fatal, unless in-court-testimony would be allowed and the declarant making the declaration is present in court on the day the motion is heard.
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Formatting of the declaration is equally important as it must comply with the Local Rules of Court for the jurisdictional location in which the case is before the court. If the case is to be heard in San Diego, California, then you must read the Local Rules of Court for the Southern District of California to ensure you comply with filing requirements of the court. If the case is to be heard in Los Angeles, then the Local Rules of Court for the Central District of California should be read. Of course, the California Rules of Court should also be read.
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When reading the rules of court (and hence, rules of law), the words "shall" and/or "must" are "mandatory language" and each directive following the words "shall" and/or "must" must be followed and literally interpreted exactly as it is written.
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If the language states the auxillary verb "may", then the directive is "permissive" or "discretionary". For example, the judge "has discretion" to grant the motion, (which means the judge "may" grant the motion.)
Any language stated in this Blog that uses the auxilliary verbs "shall" and/or "must" means also that it is a mandatory requirement of the Court; and every succeeding word following the auxilliary verbs "shall" and/or "must" -- must be literally interpreted and followed to the letter.
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The Court-compliant Declaration also must be on ruled paper (Lines 1 -28). The Attorney's name must be followed by his or her State Bar Number. The language "Attorney for Petitioner, Susan Gadabout", should be positioned on Line 5. The Name of the Court should be positioned on Line 8. the Location of the Court should be positioned on Line 9. The beginning of the Case Caption should begin on Line 11.
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The Declaration must contain a footer identifying the name of the document and consecutive page numbers.
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Any Exhibits submitted with the Declaration must be identified and paginated in consecutive order following the last numbered page of the pleading and tabs (extending beyond the bottom edge of the page) must also be included with a notation on each tab referencing the document to which it refers.
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Any court hearing date to which the declaration relates must also be on the face of the Declaration, along with the time and location of the hearing .
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The footer should be in 10 pitch while the body of the pleading should be in 12 pitch with a common font such as "Courier New", or "Times Roman". Any other non-traditional font may not transfer correctly, if the declaration is submitted electronically. To avoid that result, you should first scan or save the document in PDF format, before electronically transmitting it so that the typed format transfers uninterruptedly in PDF format.
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All pleadings must be double-spaced, excepting the case caption that is single-spaced in the areas set forth below in the sample declaration.
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_______________________________________
SEE FORMATTED DECLARATION BELOW.
The "Line numbers", below, refer to
Ruled Pleadings Paper, numbers 1-28.
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QUANTUM KICK, ESQ., SB #12345 [State Bar No. is mandatory]
TEHACHAPI COURT SERVICES
3355 West Working Street
Tehachapi, CA 93561
661-822-1994
Attorneys for Petitioner, [Line 5]
SUSAN GADABOUT
SUPERIOR COURT OF THE STATE OF CALIFORNIA [Line 8 & centered]
COUNTY OF LOS ANGELES, CENTRAL DISTRICT [Line 9 & centered]
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IN RE THE MARRIAGE OF SUSAN GADABOUT, Petitioner, v. HANDSOME GADABOUT,
Respondent.
________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) |
CASE NO. BD 236 789 [Line 11]
PETITIONER’S SUPPLEMENTAL DECLARATION IN SUPPORT OF REQUEST FOR ATTORNEY’S FEES AND COSTS
RFO Hearing: Aug. 9, 2017 Time : 8:30 am Location : Department C |
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I, SUSAN GADABOUT, state and declare:
1. I am the Petitioner in this action. If called as a witness, I could and would
testify truthfully and competently to the following facts which are within my own
personal knowledge as follows: [This is a Mandatory Competency Clause.]
2. I offer my declaration in lieu of personal testimony pursuant to the
California Code of Civil Procedure §§ 2009 and 2015.5, California Rules of
Court, Rule 1225, Reifler v. Superior Court (1974) 39 Cal.App.3d 479 and
Marriage of Stevenot (1984) 154 Cal.App.3d 1051.
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[A declaration is always written in the First Person (“I”), case citations are always
written in (1) italics; or (2) bolded; or (3) underlined. Never both.]
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MY 20-YEAR-MARRIAGE TO RESPONDENT [Bullet Points help to focus
IS DEFINED AS A LONG-TERM MARRIAGE. The Judge on Major Points]
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3. The Respondent and I married on Jan. 5, 1992 and separated on January 5,
2012, for a period of marriage of 20 years.
4. I am informed and believe, and based thereon allege that the my marriage is
considered a long-term marriage.
5. Respondent and I are the parents of three minor children who were born
during the period of the marriage; and are 6, 10 and 14 years. For the past 14 years,
I’ve been the primary care provider for the children and the parent most likely to
facilitate the parent-child relationship with the other parent.
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PETITIONER HAS A NEED FOR SUPPORT,
ATTORNEY’S FEES AND COURT COSTS TO
LITIGATE AND PROTECT HER INTERESTS.
6. During the entire period of the long-term marriage, the Respondent desired
that I remain a homemaker. As a result of remaining in the home, I’ve lost
marketable skills and am in need of child and spousal support. I am also in need of
contribution from Respondent for reasonable attorney’s fees and costs to litigate
the instant action to protect my interests and interest of the minor children. My
current Income and Expense Declaration was filed concurrently with the instant
order to show cause hearing.
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THE RESPONDENT HAS BEEN A MEDICAL
DOCTOR FOR THE PAST 20 YEARS. AS A
RESULT, RESPONDENT HAS THE ABILITY
TO PAY REASONABLE SUPPORT AND
ATTORNEY’S FEES AND COSTS.
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7. Respondent has been a practicing physician for the past 20 years of the
marriage. He has no other children nor family that he has ever supported.
Respondent’s Income and Expense Declaration will reflect that he has ample funds
with which to contribute to the Petitioner’s reasonable attorney’s fees and court
costs to protect the Petitioner’s interests and those of the minor children.
Accordingly, Petitioner requests the court to make a reasonable award of attorney’s
fees and costs to Petitioner’s attorney, Quantum Kick, Esq.
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I declare under penalty of perjury that the foregoing is true & correct and that
this declaration was executed on Sept. 19, 2017, at Los Angeles, California.
[This is a Mandatory Penalty of Perjury Clause.]
___________________________________
SUSAN GADABOUT, Declarant
[Person speaking who Speaks In The First Person
herein, is always called the Declarant.]
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In addition: A Footer [displaying the Title of the Document and consecutive Page Numbering] is also mandatory. Any evidentiary attachments [Exhibits] are also required to be paginated consecutively, following the Signature Page of the Declaration. The [attachments] are also required to be [tabbed] with a tab that extends beyond the length of the 8-1/2 x 11 page, so it's easily discerned.
