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To: The Pack Knight

Good points, but doesn’t it depend on what the affidavit’s purpose is? Under Rule 54 practice, it is common to use affidavits.
https://www.americanbar.org/groups/litigation/committees/trial-evidence/practice/2019/third-party-affidavit-statements-admissible/

The affidavits attached to to complaint in this case are being used to defeat a summary dismissal by showing that there are facts to be developed at trial.


83 posted on 11/27/2020 3:20:12 PM PST by maro (MAGA!)
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To: maro

I think I mentioned that elsewhere in the thread, but yes, affidavits can be used in certain pretrial proceedings such as motions for summary judgment under Rule 56 (54 governs default judgments). There, the judge is not being asked to weigh the evidence, just determine whether there is any evidence sufficient to create a fact question to be resolved at trial, so affidavits are appropriate (in fact, live testimony is not allowed in summary judgment proceedings).

Affidavits need not be attached to the complaint for that purpose. She may have attached them to support a temporary restraining order (I have not yet read the whole complaint so I don’t know if she asked for that). TROs are ex parte and are supported by affidavit, but are only short term until there can be a hearing on a preliminary injunction, which last until trial. PIs require a full evidentiary hearing with live testimony, not affidavits.


85 posted on 11/27/2020 4:28:24 PM PST by The Pack Knight
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