[WSBARP] Anticipated Pre-Litigation Affidavit

[Paul Neumiller]

AARRRRGGHH!!! No wonder I hate litigation.  I'll discuss this with the client and let the client decide.  If we go this route, I will associate a local litigator to handle this aspect (much more efficient than me handling this.)  Outta my wheelhouse.  Have a great weekend everybody.


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From: realprop at googlegroups.com <realprop at googlegroups.com> On Behalf Of Eric Nelsen
Sent: Friday, March 19, 2021 3:36 PM
To: Paul Neumiller <pneumiller at hotmail.com>; wsbarp at lists.wsbarppt.com; realprop at googlegroups.com
Subject: [REALPROP] RE: Anticipated Pre-Litigation Affidavit

An affidavit might not be sufficient. Best practice is to depose him with defense counsel allowed to cross-examine. See CR 27<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.courts.wa.gov%2Fcourt_rules%2Fpdf%2FCR%2FSUP_CR_27_00_00.pdf&data=04%7C01%7C%7C5a6ae2b27dad4435b96208d8eb2753b7%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637517901421819149%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=HaGBit2scL1qLkI8tLSZXOMd14f1fCt8b%2BY70H4pl3E%3D&reserved=0> for perpetuation of testimony prior to a case being filed.

The difficulty is the hearsay objection. Even a sworn affidavit is still hearsay. The hearsay exception for prior sworn testimony is ER 804(b)(1)<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.courts.wa.gov%2Fcourt_rules%2Fpdf%2FER%2FGA_ER_08_04_00.pdf&data=04%7C01%7C%7C5a6ae2b27dad4435b96208d8eb2753b7%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637517901421829094%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=urREYEt%2BUaKgcMr9R9c48iD4ghzjJv%2FLmoMPdxE7Ohg%3D&reserved=0>. It allows former testimony or deposition, but there must have been an opportunity for cross-examination:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

See also CR 32<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.courts.wa.gov%2Fcourt_rules%2Fpdf%2FCR%2FSUP_CR_32_00_00.pdf&data=04%7C01%7C%7C5a6ae2b27dad4435b96208d8eb2753b7%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637517901421829094%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=UwP4%2BX%2BCEppwsfyvAElEvr5koY3WyL4y0FZQQ1kDHqk%3D&reserved=0>:

(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

There is a narrow additional exception that might work for a bare affidavit even without opportunity for cross-examination, under ER 803(a)(20)<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.courts.wa.gov%2Fcourt_rules%2Fpdf%2FER%2FGA_ER_08_03_00.pdf&data=04%7C01%7C%7C5a6ae2b27dad4435b96208d8eb2753b7%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637517901421839044%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=vI1ot4QiXW2J3vQ5CODFTjGeY%2BeTVaeJj7%2BzKsYhgcs%3D&reserved=0>:

(a) Specific Exceptions. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(20) Reputation Concerning Boundaries or General History. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.

I think this is a dicey exception to rely on though; there appears to be little to no case law interpreting it. My Law of Evidence in Washington (5th ed. 2018) skips this exception entirely-doesn't even mention it. And my "Green Books" Rutter Group Federal Civil Trials and Evidence (2008) mentions it (FRE 803(a)(20), the federal equivalent) but has no citations or other guidance on its scope, other than to say that admissibility is determined the same as for whether reputation testimony about a person is admissible.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: realprop at googlegroups.com<mailto:realprop at googlegroups.com> <realprop at googlegroups.com<mailto:realprop at googlegroups.com>> On Behalf Of Paul Neumiller
Sent: Friday, March 19, 2021 3:00 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>; realprop at googlegroups.com<mailto:realprop at googlegroups.com>
Subject: [REALPROP] Anticipated Pre-Litigation Affidavit


Listmates, Happy Friday.  Just in case my current negotiations go sideways, I need to anticipate litigation.  OK, so 80 year old's (who lives on a boat) testimony is needed to establish that certain encroachments onto neighboring property were allowed/granted with permission from neighbor.  His testimony is crucial to defend against an adverse possession lawsuit (if the parties come to that) because it establishes that the encroachments were placed with permission.  But he is elderly with failing health and living on a boat.  He is sympathetic with my client's position and is willing to sign anything (as long as it's true).  So, do I have him sign an affidavit with penalty of perjury using any certain "pre-litigation language?"  I can prepare an affidavit but I'm wondering if there is any necessary language to use in the affidavit now in order to submit the affidavit to court later in case he dies or becomes disabled prior to trial time.  Thanks for your guidance.  -Paul Neumiller


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