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Law Educator, Esq.
Law Educator, Esq., Attorney
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Im the plaintiff in an impermissible purpose/FCRA case. One

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I'm the plaintiff in an impermissible purpose/FCRA case. One defendant filed a Motion for Summary Judgment with an affidavit from the President of the corporation. The MSJ was denied because the attorney didn't follow FRCP or the Local Rules.
I have now noticed that the affidavit, which states in the first line, "I, _________, first being duly sworn, upon oath state..." yet the Notary used an Acknowledgment, not a jurat, and used a form not allowed in California, where it was notarized. The case is in Arkansas, where a jurat is also required to make an affidavit valid for evidence in court.
Since the affidavit is part of the record, even though the MSJ was denied, should I file an objection to the Affidavit due to the defect? Or keep my mouth shut now and only use the objection at trial should it get that far? I'm thinking if I use it at trial they won't have time to fix it, am I correct in that?
You may file a motion to strike or quash the affidavit based on improper form. However, if they plan on relying on the affidavit in trial and they submit that as part of their evidence, then you can wait to object to the affidavit at that time and move to strike and quash it then. The reason here is that in order to use an affidavit in trial the parties have to stipulate because if not and the party who swore out the affidavit is not present in court to testify, then the affidavit is considered hearsay and inadmissible anyhow. Thus, you objecting to it before trial is a judgment call for you to make as they cannot just introduce the affidavit as evidence without your agreement or without having the party testify in person.

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