Wednesday, March 19, 2014

Certificate, affidavit or something else?

No doubt the point of this post is technical, but it illustrates how the Kentucky Rules of Civil Procedure are somewhat different for lawyers and for litigants proceeding to represent themselves in court without a lawyer. Virtually every motion filed in court must be served upon every other party named in an action. Under Civil Rule 5.03, proof of this service upon the other parties or their attorneys must be filed with the court. This rule specifies that attorneys may make this proof to the court by a certificate of service, but non-lawyers must file an affidavit of service. The difference between a certificate of service and an affidavit of service is not insignificant.  An affidavit requires appearing in person before a notary or a clerk of the court, and being sworn to an oath. 

Although CR 43.11 and KRS 454.170 allow a solemn affirmation to be substituted for an oath, CR 43.13 is quite specific that an affidavit, as required by CR 5.03, "shall be a written statement or declaration sworn to or affirmed before an officer authorized to take depositions by Rule 28. .  . "

Normally I would suggest a written affirmation made under the penalties of perjury, as defined in KRS 523.01(2)(a) ("The statement was made on or pursuant to a form bearing notice, authorized by law, that false statements made therein are punishable"), but I simply cannot connect the authoritative dots to reach the conclusion it is specifically allowed by the written rules and statutes.

If a sworn or affirmed affidavit of service by a non-lawyer pro se litigant is an actual requirement of the Kentucky Rules of Civil Procedure, it would represent a significant and pointless burden upon those who represent themselves in court.

However, CR Rule 5.03 provides in relevant part
* * * * Proof may be by certificate of a member of the bar of the court or by affidavit of the person who served the papers, or by any other proof satisfactory to the court.:* * * * [emphasis added]
With this element of flexibility and judicial discretion injected into the mix, I feel confident that I could use the following as an Affirmation of Service when the time comes for me to sue somebody without a lawyer.

Affirmation of Service 

I affirm, under the penalties of perjury, that on __________ I deposited an accurate and complete copy of this (pleading) with the United States Postal Service in an envelope with sufficient First Class postage prepaid and properly addressed to:

(signed) _______________________________

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