Drafting Mitigation Declarations

1. Drafting Mitigation Declarations Kirsty Davis April 2011

2. Uses for Declarations • Basis for experts’ opinions • Support for allegations in the petition • Proffer in support of a motion for an evidentiary hearing • Testimony

3. Goals • Create a compelling narrative • Corroborate other’s narratives • Provide legally significant evidence

4. Litigation Pitfalls • Disavowal of content (counter-declaration or testimony at a hearing) • Inaccuracies and inconsistencies (previous statements, documents, testimony, and declarations or statements of other witnesses) • Harmful information • Discrepancies with general case themes

5. Discrepancies with Case Themes CLIENT was a superb worker. He often recognized inefficiencies in our industry and recommended insightful solutions. I found myself relying on his excellent observations in devising changes in our workflow procedures and reducing injuries to our workers. • Two Problems: • CLIENT picked up garbage and once “recommended” that the workers be given work gloves because he cut his hands, a recommendation that he got from the driver of the truck. • Theme: CLIENT is mentally retarded.

6. Keys to Successful Declarations • Preparing for the interview • Conducting the interview • Debriefing • Drafting • Editing • Signing

7. Preparing for the Interview • Understanding focus/themes of the case • Educating yourself about the witness (case and non-case investigation) • Formulating topics, questions, and approaches • Understanding the witness’s role

8. Conducting the Interview • Conditions of interview • Interview witness individually • Location where witness is comfortable • Note taking • Witness considerations • Balance accuracy with attention • Use of outline • Harmful information • What to do with the notes • Explaining the declaration process to the witness

9. Debriefing • Post-interview team discussions • Harmful information • Processing significance of information obtained • Discussion of difficulties interview presented (stress of interview) • Need for follow-up interview(s)

10. Drafting Declarations Structure: • 1st (or 1st and 2nd) paragraph(s): Witness’s relationship to client and/or the case and characteristics that make the witness credible • Body/Content • Penultimate paragraph: not contacted by defense, or not asked questions that would have elicited the information included in this declaration, would have been willing to testify • Last paragraph (not numbered): penalty of perjury. No need to include location where declaration was signed.

11. Level of Detail in Social History Declarations • Instead of conclusion: “He was slow.” Frank reported directly to James Cooper. He was the only one of the workers, besides the supervisors, to do this. He cleaned the office in the mornings and then checked with James to see if he should go to work at James’s house or at one of the work sites. At James’s house, Frank cleaned inside and took care of the dog and cleaned up outside on the patio. On the construction site, his main task was to clean, and on occasion he helped with demolition. He did not have construction skills, and he could not do complex work or tasks. When he finished a task at a work site he asked me what to do next. I never assigned him any task other than cleaning. He was obedient and recognized that I was in a position of authority.

12. Instead of conclusion: “They were poor.” I had not realized how poor they were, and I was shocked by the conditions in which they were living. When I ate with them, they had only one potato that they had to divide between all of them. Because I was their guest, I was given two pieces of potato while the rest of them had only one piece. Jimmy and his brother Peter only had simple sandals with a rubber bottom. That was terrible because the roads were not paved and when the rains came, everything became muddy. I knew that Jimmy’s family suffered because his father was gone, but Jimmy and Peter were so poor I gasped when I saw how they were living.

13. Goals in Drafting Declarations • Create a compelling story by an interesting character. • Historical facts • Emotions and impressions • Ensure accurate and supported information. Two sources are better than one: each material fact should be corroborated by another witness or a document • Respect the voice of the witness while ensuring that the witness’s in-court testimony is reflected in the declaration

14. Style of the Declaration • Would • Always/never • I [do not] remember/I recall • I think/I believe • Slang • Quotes

15. Editing • Participation by team members • Fact-checking

16. Signing Declarations • When to sign • Fact-checking completed • After ensured consistent with other evidence (or credible explanations for inconsistencies) and with case themes • Witness availability (health and location considerations) • In time to submit to relevant experts for consideration

17. Signing Declarations • Copies? • Will witness have to testify? • Who will see the declaration? • Witness is reluctant? • Changes? • Illiterate or impaired witness?