This page is continued from Every Type of Motion >>>> Legal Terms Pertaining to Motions:
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affidavit:
(16c)
1. A voluntary declaration of facts written down and sworn to by a declarant, usually before an officer authorized to administer oaths. * A great deal of evidence is submitted by affidavit, especially in pretrial matters such as summary-judgment motions. Cf. DECLARATION (1), (8). [1]
1. Any voluntary ex parte statement reduced to writing, and sworn to or affirmed before some person legally authorized to administer an oath or affirmation. 3 Am J2d Affi § 1. [2]
1. Any voluntary statement reduced to writing and sworn to or affirmed before a person legally authorized to administer an oath or affirmation (EXAMPLE: a notary public). A sworn statement.
Also see verification.[3]
Various Types of Affidavits:
affidavit of claim: (1850) An affidavit in which a plaintiff asserts that he or she has a meritorious cause of action. [1]
affidavit of defense: An affidavit that states that the defendant has a valid defense to the plaintiff’s action. [3]
affidavit of increase: (1834) Hist. An affidavit that lists — and seeks reimbursement from the opposing party for — the additional costs (above the filing fee and other basic fees charged by the court clerk) incurred by a party in taking a matter through trial. * Attorney fees, witness payments, and the like were included in this affidavit. See COSTS OF INCREASE.
affidavit of inquiry: (1925) An affidavit, required in certain states before substituted service of process on an absent defendant, in which the plaintiff ’s attorney or a person with knowledge of the facts indicates that the defendant cannot be served within the state.
affidavit of merit: See certificate of merit (2) under CERTIFICATE.
affidavit of merits: (18c) An affidavit in which a defendant asserts that he or she has a meritorious defense. — aka affidavit of defense. [1]
1. In some jurisdictions, the term for an affidavit of defense. [3]
affidavit of nonprosecution: (1980) An affidavit in which a crime victim requests that the perpetrator not be prosecuted. * In many cases, if the victim files an affidavit of nonprosecution, the prosecutor will withdraw or not file criminal charges against the perpetrator on grounds that there is no victim. Sometimes, though, the prosecutor will go forward with the prosecution even if the victim files an affidavit of nonprosecution, as in some cases of domestic violence.
affidavit of notice: (18c) An affidavit stating that the affiant has given proper notice of hearing to other parties to the action.
affidavit of service: (18c) An affidavit certifying the service of a notice, summons, writ, or process. [1]
1. An affidavit that certifies that process (EXAMPLES: a summons; a writ) has been served.
See service of process. [3]
affidavit of verification: See VERIFICATION (1).
argumentative affidavit: (1859) An affidavit that improperly contains more than just factual statements, especially opinion, reasoning, or attempts at persuasion. * An argumentative affidavit is subject to being struck by the court.
Byrd affidavit – in criminal cases, a defendant’s affidavit in support of a motion to sever on the grounds that a codefendant will give exculpatory testimony for the defendant. Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970).
counteraffidavit: (18c) An affidavit made to contradict and oppose another affidavit, as with one filed in opposition to a motion for summary judgment.
plea affidavit – a sworn, notarized, written guilty plea to a misdemeanor, traffic violation, or other lesser offense, usually submitted in absentia.
poverty affidavit: (1887) An affidavit made by an indigent person seeking public assistance, appointment of counsel, waiver of court fees, or other free public services. 28 USCA § 1915. — aka pauper’s affidavit; informa pauperis affidavit; IFP affidavit.
search-warrant affidavit – an affidavit that sets forth facts and circumstances supporting the existence of probable cause, requesting the judge to issue a search warrant.
self-proving affidavit: (1964) An affidavit attached to a will and signed by the testator and witnesses certifying that the statutory requirements of due execution of the will have been complied with. * The affidavit, which recites the facts of the Will’s proper execution, permits the will to be probated without the necessity of having the witnesses appear and prove due execution by their testimony.
sham affidavit: (1942) An affidavit that contradicts clear testimony given by the same witness, usually used in an attempt to create an issue of fact in response to a motion for summary judgment. * All the federal circuit courts have adopted some form of the sham-affidavit rule, which precludes a litigant from creating an issue of material fact by contradicting earlier sworn testimony in the absence of persuasive reasons why the new testimony is more accurate than the earlier testimony.
supplemental affidavit: (18c) An affidavit made in addition to a previous one, usually to supply additional facts.
affidavit of engagement: (1916) A lawyer’s sworn statement to a court requesting an adjournment because of another court appearance scheduled for the same time. — aka affidavit of prior engagement.
affidavit of errors: (1943) An appellant’s written statement enumerating the grounds for appeal, usually from a court not of record (that is, in which proceedings have not been transcribed by a court reporter).
affidavit of merit: See certificate of merit (2) under CERTIFICATE.
affidavit of verification: See VERIFICATION (I).
Types of Affidavits
Pertaining to Real Estate:
affidavit for the record: An affidavit made by a surveyor or engineer to supplement, correct, update, or otherwise alter existing information in official real-estate records.
Types of Affidavits
Pertaining to Patents and Trademarks:
affidavit of incontestability: (1990) Trademarks. A sworn statement submitted by the owner of a registered mark after five years of registration, averring that the mark has been in continuous use in commerce for at least five consecutive years since registration, that the mark has not become generic, that there has been no final adverse decision to ownership in the mark, and that there is no pending proceeding in the U.S. Patent and Trademark Office or courts involving the mark. 0 The statement entitles the mark to immunity from some legal challenges under § 15 of the Lanham Act. — aka declaration of incontestability; affidavit under § 15; declaration under § 15; Section 15 affidavit; Section 15 declaration.
affidavit of use: (1954) Trademarks. A sworn statement submitted by a registered mark’s owner averring that the registered mark is currently in use in commerce, and providing a specimen or facsimile of the mark’s use. * The § 8 affidavit must be filed
(1) between the fifth and sixth year following registration, and
(2) within the year before the end of every ten-year period after the date of registration.
If a registered mark’s owner fails to file a § 8 affidavit within the required time, the U.S. Patent and Trademark Office may cancel the registration. The term comes from § 8 of the Lanham Act. — aka affidavit of continued use; declaration of use; affidavit under § 8; declaration of continued use; declaration under § 8; Section 8 declaration; statement of use. Cf. INCONTESTABILITY STATUS CANCELLATION (4).
1. See declaring a use; declaration of trust. [2]
declaring a use:
1. Making a deed to show the object or use after a fine or recovery. If fines or recoveries were levied or suffered without any good consideration, and without any uses declared, they enured only to the use of him when levied or suffered them, unless their force and effect were directed by other deeds expressing particular uses. If such deeds were made before the tine or recovery, they were called deeds to lead the uses. If they were made subsequently, they were called deeds to declare the uses.
See 2 Bl Comm 363. See declaration of trust.
declaration of trust:
1. A means whereby an owner of property may create a trust. therein, consisting of his voluntary statement indicating or manifesting his intention to create a trust, which equity will regard as a transfer of title, notwithstanding there is no transfer of the subject matter, subject to the requirement of a writing where the nature of the property and the conditions of the transaction bring it within the statute of frauds. 54 Am J1st Trusts § 6l; a judgment or decree declaring the existence of a trust 54 Am J1st Trusts § 628. [2]
affidavit after appeal: (1949) Patents. A sworn statement submitted to the US. Patent and Trademark Office after the filing of a notice of appeal from an adverse determination by an examiner. * An affidavit or declaration submitted after a case has been appealed will not be admitted without a showing of good and sufficient reasons why it was not presented earlier.
affidavit after final rejection: (1939) Patents. A sworn statement submitted to the U.S. Patent and Trademark Office after an application’s final rejection. — aka declaration after final rejection.
References:
Disclaimer: All material throughout this website is compiled in accordance with Fair Use.
[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6
[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition by James A. Ballantine (James Arthur 1871-1949). Edited by William S. Anderson. © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY. Library of Congress Catalog Card No. 68-30931
[3]: Ballantine’s Law Dictionary Legal Assistant Edition by Jack Ballantine (James Arthur 1871-1949). Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning. ISBN 0-8273-4874-6.
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