STOP Using Affidavits

Affidavits (which require a notary) should only be used if you want the person to prove who they are in front of a notary.

"Declarations" (which do not require a notary) should replace Affidavits in Motions and other pleadings.

NRS 53.045 was added to the NRS in 2001 and it specifically allows this change (see statute below). This is a form.

DECLARATION OF __[__insert name_____]____

I, ______[insert name]____, am submitting the following facts in support of [plaintiff/defendant’s {insert name of pleading}] declare that I have personal knowledge, unless stated otherwise, and am competent to testify to the following facts:

I ….

The …...

I declare under penalty of perjury under the laws of the State of Nevada (NRS 53.045 and 28 U.S.C. § 1746), that the foregoing is true and correct.

EXECUTED this ____ day of July, 2008.

_________________________________

[Insert Name]

The first paragraph is language is required by EDCR Rule 2.21(b) and NRCP Rule 56(e). The facts must be admissible into evidence (no hearsay), they must show that the person signing is competent and all documents referred to herein must be attached.

NRS 53.045 States:

Use of unsworn declaration in lieu of affidavit or other sworn declaration. Any matter whose existence or truth may be established by an affidavit or other sworn declaration may be established with the same effect by an unsworn declaration of its existence or truth signed by the declarant under penalty of perjury, and dated, in substantially the following form:

1. If executed in this State: "I declare under penalty of perjury that the foregoing is true and correct."

Executed on this __ day of ___, 20__

2. If executed outside this State: "I declare under penalty of perjury under the law of the State of Nevada that the foregoing is true and correct."

Executed on................................

(date) (signature)

(Added to NRS by 1993, 2741; A 2001, 2349)

The Nevada Supreme Court in Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. Adv. Opn. 21, 234 P.3d 920 (2010) held (without citing Federal pre-emption mentioned below) that even though NRS 41A.071 requires an affidavit (an affidavit of an expert must be filed with a medical malpractice complaint), NRS 53.045 (which allows the use of a declaration instead of an affidavit) trumps the affidavit requirement in any statute.

For anyone that reads this far, the Nevada Statute was enacted because of a Federal statute (enacted in October of 1976-we are prompt in Nevada) that mandated this change:

28 U.S.C. § 1746. Unsworn declarations under penalty of per­jury

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:

(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)”.

(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.