Nothing to Declare

by Howard Posner

Few human activities are as tradition-driven as legal writing, and few are as full of drivel. This is not a coincidence: It is the force of tradition that keeps us from separating the drivel from the substance. We plaster the page with things that have no business being there, simply because we did it that way last time.

One of the strangest instances of "there's no reason for doing this, but we've always done it this way" can be found taking up space at the beginning of just about every attorney's declaration I've ever read:

"I am an attorney at law licensed to practice before all the courts of the State of California, and counsel of record for defendants Thomas Turkeybag and Turkeybag, Inc., a California Corporation, in this action. I am making this declaration in support of Defendants' Motion for Summary Judgment. I have personal knowledge of the facts set forth in this declaration and am competent to testify thereto if called upon to do so." (Sometimes the last sentence says, "I have personal knowledge of the facts set forth herein and, if called as a witness at trial, could and would competently testify thereto," which injects a bit of prognostication into it.)

Lovely stuff this is, full of rich detail. Our declarant is not just licensed to practice in California, but "before all the courts of the State of California," in case the reader might think the lawyer has a partial license that doesn't include appearing in court, or the reader has forgotten that California is a state, or might wonder if there's a city in Sri Lanka called "California" that licenses lawyers to practice in its courts.

The first sentence tells the judge exactly one thing she might want to know: The declarant is the defendants' counsel of record. From this she can assume the declarant can be expected to know the sorts of things counsel of record would normally know, and the declaration can go about its business, usually something tiresome like authenticating exhibits or tattling on opposing counsel.

But if the first sentence is mostly fat, the third is actual self-contradiction. "I have personal knowledge of the facts set forth herein and am competent to testify to them" is itself incompetent testimony, since it states a legal conclusion. At best, it means, "I am competent to testify to everything in this declaration, with the exception of this statement," which does not inspire confidence.

The survival of this incantation is a mystery. No litigator would put a witness on the stand and ask, "Are you competent to give the testimony you're about to give?" or, "Do you have personal knowledge of everything you're about to say?" In both live testimony and declarations, you show personal knowledge with a factual foundation, and there may be a foundation for some parts of the testimony but not for others. It can't be established by stating that it exists.

There used to be a Los Angeles Superior Court Rule 9.6 (c) - I didn't find it last time I looked - that provided, "If it appears from the content of the declaration that it is unlikely that the declarant has personal knowledge about the statements he or she avers to be true, the declaration is not salvaged by a conclusionary statement he or she has personal knowledge of the statements made." More than one litigator to whom I showed that rule, after getting over the initial surprise at seeing it, pointed out that it does not actually say you don't need the "conclusionary statement," so you should always include it even if it can't possibly accomplish anything. And so tradition becomes superstition, the verbal formula serving as a rabbit's foot.

I've left the "I have personal knowledge" bit out of declarations for years, and it has never caused a problem. This is either because I'm right, or because there is a long tradition of judges skipping the first paragraphs of lawyers' declarations because they know there's nothing interesting in them. That tradition would make sense

Howard Posner practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters.

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