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I submitted a motion for summary judgment. The plaintiff submitted

an affidavit by a witness...
I submitted a motion for summary judgment. The plaintiff submitted an affidavit by a witness to establish a prima face case. One of the statements on the witnesses affidavit was false. What is the proper way to address this?
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Answered in 3 minutes by:
7/18/2013
Dimitry K., Esq.
Category: Legal
Satisfied Customers: 41,221
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Thank you for your question and thank you again for requesting me to assist you further.

You can object to the affidavit by claiming that the underlying statements are false or otherwise incorrect, and request that before the judge rule on the motion based on the judgment, he permit you to subpoena the witness and testify as to the comments entered as fact when the information may not have been the case. It is far easier if you have sworn testimony already on record showing that this witness's comments are contrary to each other and use that impeach the testimony, but if you do not have such an option, request to depose that witness would be the next step.

Good luck.

Dimitry K., Esq.
Category: Legal
Satisfied Customers: 41,221
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
Verified
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Customer reply replied 4 years ago

So how would I file that with the court? Would I file an "objection to affidavit" with explanation and request for hearing in the body of the document?

That is correct, you would need to file a motion to object to the affidavit and request that the judge either disallow the affidavit as it was not proven as factual or truthful, or allow you the right to first depose or question the witness before the testimony under affidavit could be entered for its' truth.

Good luck.

Dimitry K., Esq.
Category: Legal
Satisfied Customers: 41,221
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
Verified
Dimitry K., Esq. and 87 other Legal Specialists are ready to help you
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Customer reply replied 4 years ago

Let me explain....it's a defamation case and I am a co-defendant with my wife. The witness is our daughter who is bent on us losing. She said that we made defamatory statements to her about plaintiff. She hadn't spoken to either of us for nearly a year prior to the case being filed.


 


We asked her how she was going to prove we said anything when we hadn't spoken in so long, and she said isn't text messaging the same thing? As this particular statement on her affidavit pertains to the slander aspect, a text message does not apply as a "statement", correct?

Rick,

Then you cannot object to this yet--her comments would need to be impeached or attacked in court at the hearing because her comments go to the heart of the claims. So even if she is lying, you would need to deal with that claim during the hearing, it is not something you can object to yet even if the information is utterly false.

A text message does apply as a statement, so if you texted something and it was used against you, even out of context, it is valid.

Good luck.

Dimitry K., Esq.
Category: Legal
Satisfied Customers: 41,221
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
Verified
Dimitry K., Esq. and 87 other Legal Specialists are ready to help you
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Customer reply replied 4 years ago

A text message is considered the same as a spoken statement?

Rick,

A text message can be considered as a statement attributed to you, much like an email. A spoken statement would be potentially considered slander and a written statement would be considered libel, but both are types of defamation.

Good luck.

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Customer reply replied 4 years ago

But text messages would have to have been provided in discovery, correct?

Yes, but I am not sure what that means pertaining to your objection. If the messages were not provided, then during the hearing you could object to the affidavit and impeach the credibility, it is not yet something you would be able to attack in this instance.

Good luck.

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Customer reply replied 4 years ago

When u say hearing, do u mean the trial, or pretrial/pending motions hearing? If pretrial, do I need to subpoena the witness to question her?

Rick,

By hearing I mean the actual trial hearing, not pre-trial. Her testimony, for better or for worse, is going to have to be fought at trial and potentially impeached then. This wouldn't be a pre-trial petition.

Good luck.

Dimitry K., Esq.
Category: Legal
Satisfied Customers: 41,221
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
Verified
Dimitry K., Esq. and 87 other Legal Specialists are ready to help you
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Customer reply replied 4 years ago

So since tthe text messages were not included with the response to production of documents, she can not talk about them, correct?

Rick,

She can still talk about them, but if she cannot produce the text messages that could be the means by which her testimony may be flawed or impeached. If she does not have a copy of this text she cannot, word for word, duplicate it, or what it was actually referring to, as one example. That evidence could still be possibly attempted to be brought in while in court, but the other side (you) would then be able to object and claim that it is beyond the scope and not part of this case as it was not listed as part of evidence during pre-trial.

Good luck.

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Customer reply replied 4 years ago

Without hardcopy I could object to it as incomplete evidence as well, correct?

Rick,

You could object to it as incomplete, especially if the replies and responses back and forth are not provided. Texts generally can be taken out of context so if the full conversation is not provided, that likewise can be objected to.

Good luck.

Dimitry K., Esq.
Category: Legal
Satisfied Customers: 41,221
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
Verified
Dimitry K., Esq. and 87 other Legal Specialists are ready to help you
Ask your own question now
Customer reply replied 4 years ago

Thanks for all the help

You are most welcome, Rick. Glad to help! Should you need me again, please feel free to ask for me by name. Please be well!
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Customer reply replied 4 years ago

k

Customer reply replied 4 years ago

His responsew was that our argument was not persuasive because we are free to tell our side of the conversation at trial. To me, this is BS. As I undersatand it, the rule is intended to keep one party from intentionally introducing misleading evidence. Yet he seems to be arguing that he can, and it's up to us to fix his evidence so it isn't misleading.

Thank you for your patience. I do apologize on the extensive delay, I was offline for vacation and could not respond. Do you still require assistance at this time?
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Customer reply replied 4 years ago

Yes

Rick,

Thank you for your follow-up.

You asked:
His response was that our argument was not persuasive because we are free to tell our side of the conversation at trial. To me, this is BS. As I understand it, the rule is intended to keep one party from intentionally introducing misleading evidence. Yet he seems to be arguing that he can, and it's up to us to fix his evidence so it isn't misleading.
----------------
He happens to be somewhat correct, but again misleading. A party cannot knowingly introduce evidence that they know to be wrong or improper, but it is quite reasonable and possible that two parties can look at the same piece of evidence and see it differently. Then it is up to the contesting party to show their issues with the evidence, for example if the evidence is more prejudicial then probative, or it is not properly redacted (for example an image may have other information in it that could prejudice the fact gatherer, so the image itself may be valid but it would need to be cropped and not show information that is superfluous to the case but would create a potential conflict. But it is still up to the individual to fight the evidence and show why it is not relevant or inappropriate.

Good luck.

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Customer reply replied 4 years ago

Specifically the witness had drawn me into an argument about what we had said. We argued online for maybe 20 mins. During the argument I had said some things she didn't like, and she was deleting my comments. Then at he point I made the comments in question in reply to what she had said. The screen caps they intend to introduce have been edited to where all of the comments proceeding the first defamatory comment I made had been deleted, including her comments.


 


So it looks like I made the comments for no apparent reason. So if a judge takes them at face value, it looks like I was stirring things up...malice.


 


That is what I mean by incomplete.

Rick,

Then you can attempt to introduce your own comments and your own images of the full conversation, or demand that as the communication was improperly redacted, it be denied both on the basis of it being prejudicial and for failing to be the 'best evidence' available, as it is not indicative of the full communication. It is the same argument many make for recordings or video--a judge has to allow ALL of the tape in, not just the cherry-picked sections.

Good luck.

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Customer reply replied 4 years ago

That's the problem, she deleted the majority of the communication before she even took the screencapture. And since I did not anticipate the legal action, I did not take a screencapture either. Even if I had, I would have had to screencapture after every comment, because she was deleting as we went...except for the defamatory comments.


 


I'm guessing there is nothing I can do unless I can get her to admit she did that on the stand, and of course by then the evidence is in any way.

Thank you for your follow-up.

Ugh, that is most definitely a tough position to be in. I wish I had a better answer for you, I truly do. But without evidence to the contrary you have a hard time contesting what you would admit is your own commentary since, at least from the perspective of the judge, the comments do go directly toward whether or not statements were defamatory.

Good luck.

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Dimitry K., Esq.
Dimitry K., Esq.
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