Ten Tips for Successful Family Law Declaration Drafting
Many aspects of family law litigation are decided based on declarations of parties and witnesses. These documents are sworn statements that are relied upon almost exclusively by the bench in the critical first stages of family law cases, both in entering ex parte orders and the temporary orders that will govern a party’s financial affairs and parenting issues during the pendency of a case. Since family law cases can often take a year or more to resolve, drafting successful declarations to support these important initial requests is crucial to your case. Here are ten tips to bear in mind as you prepare to draft a declaration in a family law proceeding:
1. Tell the Truth
A declaration is a written statement made under penalty of perjury. Perjury is a Class B Felony in Washington State, and is but one serious potential repercussion to making a false statement to a court of law. Civil Rule 11 also mandates both truthfulness in statements, and a reasonable inquiry by a declarant to ensure that statements made are in fact true. Perhaps most commonly, it is simply a matter of credibility. A single dishonest statement, once discovered, will shatter your credibility with the opposing party and attorney, and the tribunal. Tell the truth, and skip the grief.
2. Know Your Audience
As with any writing or speaking, it is important to remember who you are talking to. In the area of family law, declarations most often end up in the hands of Court Commissioners. These court-appointed judicial officers manage extremely busy caseloads, often hearing hundreds of cases a day. They’ve “seen it all” in a general sense, but at the same time seldom do they have more than a few minutes to review any specific case and form an initial impression before the case proceeds to argument. Going into a hearing, they will only know what you have told them via your declarations. Commissioners and Judges appreciate succinct, specific factual explanations that are relevant to the legal issues at hand.
3. Organize for Effect
Given the limited time a Judge or Commissioner will have to review what you write, organization is critical. Break down the facts you need to get across to your reader by legal issue. For example, in a typical divorce case at the temporary order hearing stage, you may need to address parenting, substance abuse, domestic violence, child support, maintenance (or alimony), and property use. Each of these issues carries its own legal standards and requirements, but your only job in drafting a declaration is to establish the factual requirements to meet those legal standards. Outline the topics you’ll discuss before writing anything specific. Use topic headings and sub-headings to indicate which legal issue you are discussing. Some issues are best organized from the most recent events and then backwards – especially when seeking protective or restraining orders – while others should start at the beginning of the story. By following a consistent organization method, you’ll help the trier of fact understand your situation.
4. Be Specific
Colloquially, we are all used to making generalizations and over-statements in our everyday speech. In a declaration, such language can be self-defeating. Judges and Commissioners can only make factual determinations based on specific incidents, and only a set of specific incidents can establish a pattern or course of conduct. Sentences that begin with words like “he always…” or “she used to…” are not helpful to the tribunal, and often hamper your credibility. Stick to specific facts and incidents, and only after laying out a clear set of them refer to it as a pattern that someone “always” or “often” follows. Even if you can only recall a rough time-frame in which an event happened, it is useful and more credible to relay it.
5. Stay Relevant
Being organized and specific are critical elements to a successful declaration, but staying on point and relevant to the issues at hand is just as important. You don’t need to state the law, but it is helpful to be mindful of the law that will be applied to your case. In any given paragraph, state only those facts that will help the court decide the issue you are addressing. Avoid the temptation to tie everything together, or to wander into other problems or grievances, as your reader may choose to skip reading if she can’t understand why you’re jumping topics. Also, many Washington counties, including King, Pierce and Snohomish, have set page limits for the sum of declarations each side can submit. This necessitates careful use of the space you have.
6. Don’t Argue With the Opposing Side
In family law more than any other area of law, it is easy to get dragged into a fruitless ‘he said – she said’ battle. Unfortunately, at some point during a contested family law proceeding, you must expect the opposing party or attorney to say something you find either insulting or untrue, or both. It’s important to refute incorrect factual assertions in a responsive declaration, but it’s equally important to avoid the pitfalls of a ‘blame game,’ or to make unfounded accusations yourself. Washington is a ‘no fault’ divorce state, and issues like marital infidelity or failing to fulfill promises are only relevant at all if they affect parenting. Moreover, Judges and Commissioners often have to split the difference in making these quick factual determinations, and if you’ve spent your page limit refuting what the other side has said about you, the trier is likely to come away believing at least some of it was true. Focus on asserting your own relevant facts to establish your credibility, and drive the narrative rather than reacting to the other side’s version of it.
7. Write Naturally; Make It Easy to Read
While Judges and Commissioners are skilled at reading through to people’s intent, and aim to apply justice evenly to folks from all walks of life, they are still human. If you include grammar or spelling mistakes in your declaration, it may distract from an important point you are making. If it’s bad enough, it may make your declaration unreadable. That said, it is also important to write naturally to the way you speak. Nothing is more distracting, or quickly set down, than a misguided attempt to write in ‘legalese.’ Even lawyers can sound silly by writing a few too many ‘hereinafter’s.’ Try to write something you would enjoy, or at least could tolerate reading. Start your paragraphs and sentences with signals as to where you are going, and keep your paragraphs brief to break up the page. A well-written declaration is one that is easy to read, and vice versa.
8. Put Emotion Aside
Family law invokes some very emotional reactions from the parties involved, and often even the attorneys. Family law issues happen most often when people are at their worst, most distressed or troubled. Realize before you even start that rehashing a history of past abuses or neglects is likely to stir these emotions further, and prepare yourself. Write calmly, and remember the Judge or Commissioner isn’t going to share your visceral, emotional reactions no matter how well you express them. Present the facts, and allow them to correct the situation as best they can. Pleas for justice appear theatric, just as pleas for mercy can seem desperate. If establishing a parenting plan is an issue, strong expressions of emotion may even reflect poorly on your ability to be a stable, secure parent.
9. Draft, and Draft Again
After you write your first draft, step back and take a break, perhaps even sleep on it. Come back to it with a fresh frame of mind, and read through. Changes and additions that will improve your declaration will practically jump off the page. All accomplished writers learn to re-write, over and over again. Even a second draft will vastly improve the quality, structure and overall effectiveness of your declaration.
10. Seek Help
Having another set of eyes look over your declaration is even more important than re-drafting, and the two usually go hand-in-hand. If you hire an attorney, they will want to re-draft what you have written. Some will even start writing it for you. In my practice, I prefer that my clients and witnesses create the initial drafts of their declarations, whether it is through one comprehensive attempt, or a series of emails back and forth. Your facts are what drive your case, and you know them better than anyone else! Declarations crafted solely by attorneys are formulaic and obvious, and seldom accomplish anything. If you cannot hire an attorney, consider seeking help from a paralegal, legal aid clinic, or court facilitator. Even a friend who you know to be a good writer will probably improve your declaration in some way.