What is a witness statement?
A witness affidavit is a document that is intended to replace the questioning of the party by a lawyer. On his behalf regarding the circumstances of the relevant event to that legal proceeding. In fact, a witness affidavit saves, in most cases, the court and the parties the time spent on questioning the parties by their lawyers. This way, it is possible to begin immediately. Cross-examination.
Another important purpose of filing a primary witness affidavit is to present the party's evidence. At the time of filing the affidavit, the party must present all of its evidence (documents, recordings, transcripts, etc.). The evidence can come in the form of a primary witness affidavit from a witness who will support the party's claims (but this does not mean that the party itself is exempt from filing an affidavit on its own behalf).
In other words, any person who intends to testify in the legal proceedings must, in most cases, submit a primary witness affidavit on his behalf, and attach to it all the data he intends to rely on in his testimony.
It is not always necessary to submit a witness affidavit.
It is important to understand that the court is not obligated to allow the parties to submit affidavits of primary testimony on their own behalf or on behalf of relevant witnesses within the framework of the Civil lawsuit or Financial claim. תקנה 67 לתקנות סדר הדין האזרחי, תשע"ט – 2018 קובעת כך:
Way of bringing evidence
67. (A) The court will decide whether the main testimonies will be heard. oral or in writingIn its decision regarding the manner in which the testimony will be heard, the court will consider, among other things, the scope of the written and oral evidence, the complexity of the claim, and the nature of the dispute between the parties. Giving priority to hearing oral testimony, if this helps to uncover the truth and effectively manage the discussion.
(b) Without derogating from the provisions of subregulation (a), in a claim for financial relief in a district court in an amount exceeding two and a half million new shekels and in a claim for compensation for bodily injury and a claim based on the Compensation for Road Accident Victims Law filed in the district court, priority will be given to providing written testimony if this will assist in discovering the truth and in the efficient conduct of the hearing.
(third) After the witness has been duly warned, the party who summoned the witness will question him in a primary examination, and the opposing party may question the witness in a cross-examination; בעל הדין שזימן את העד רשאי לחזור ולחקור אותו בחקירה חוזרת, לגבי עניינים הנובעים מהחקירה הנגדית שנותרה לגביהם אי-בהירות; לעניין תקנת משנה זו, "בעל דין שכנגד" – כל בעל דין המצוי בחזית מחלוקת מהותית עם בעל הדין שזימן את העד או שבית המשפט התיר לו לחקור את העד בחקירה נגדית.
In other words, if the judge thinks that in order to simplify the proceedings, it is possible to dispense with the submission of affidavits of primary witness on behalf of the parties, he may determine that the testimonies will be heard orally. The regulation also states that there is a priority for hearing oral testimony instead of submitting affidavits of primary witness.
A witness statement must detail facts from personal knowledge.
תצהיר עדות מטעם בעל דין או עד חייב להתייחס לנתונים שידועים לו מידיעה אישית בלבד. עניין זה נקבע בתקנה 178 לתקנות סדר הדין האזרחי, תשע"ט – 2018, אשר קובעת כך:
178. (A) An affidavit will be written in the first person, divided into sections, and will contain only facts that the declarant can testify to from his own knowledge; In the affidavit attached to the pleadings, he may also declare to the best of his knowledge or belief, provided that he indicates the source of his belief or knowledge.
(b) A declarant's affidavit shall be deemed to be primary evidence, as a witness in a trial, but the affidavit shall be considered evidence only if the declarant appeared for cross-examination.
(c) If the declarant fails to appear for questioning on an affidavit attached to a pleading – his affidavit will not be used as evidence in favor of the party who submitted it, except with the permission of the court granted for special reasons.
(d) The court may at any time, on its own initiative, require the appearance of a declarant for questioning.
This regulation establishes several important rules. First, a person who has submitted a primary witness affidavit but has not appeared for the hearing – as if he had not submitted an affidavit on his own behalf in the first place, unless the court has approved it, for special reasons (usually, the court does not approve such conduct).
Second, a primary witness affidavit must include data that is known to the witness or the party to the case from personal knowledge. That is, if the witness testifies to data that is not known to him from personal knowledge but that someone else told him, then this is hearsay testimony that is not admissible, and the question may arise, in this case, why the relevant person who knows the data from personal knowledge did not submit an affidavit and did not appear for the hearing.
This issue may operate to the detriment of the party who did not present or bring to the hearing the relevant witness because there is holding A litigant shall not refrain from presenting evidence that is in force For his own goodAnd if he did not actually submit it, it means that if he had submitted it, it would have been effective. To his credit.
The relationship between a general document disclosure affidavit and a primary witness affidavit
General Document Disclosure Affidavit It is an affidavit that is transmitted between the parties after the submission of the pleadings (this affidavit is not submitted to the court), in which the parties disclose to each other all the documents in their possession that are relevant to the trial, and that they may use in the legal proceedings.
A primary witness affidavit that includes any document not specified in the affidavit of disclosure of documents is likely to encounter a request to delete that new appendix, and in extreme cases even a request to delete the pleadings of the party who did not disclose the document, and there is a likelihood that the request will be accepted in light of the provisions of Regulation 60 of the Civil Procedure Regulations:
60. (a) Proper discovery and review procedures constitute a basic condition for the existence of a proper and fair judicial process; If the court finds that a litigant has not properly fulfilled his obligation under this chapter, it may immediately charge him with expenses and, in special cases, even strike out his pleadings.
(c) Without derogating from the provisions of subregulation (a), A party who fails to disclose a document that must be disclosed or who fails to comply with a request to review a document that he has disclosed, shall not be entitled to submit the document as evidence on his behalf in that action, except with the permission of the court after it has become apparent that the party had reasonable justification for his failure.And if it is a document that is detrimental to the party's case, the court may order the deletion of the statement of claim or statement of defense, as the case may be, and if it does not so order, it will order that he be charged with costs unless it finds special reasons not to do so.
Hiding relevant documents will not only not serve the party hiding the documents, but it may also cost them dearly in the form of legal fees, and in more extreme cases, even the deletion of their pleadings. In such a case, the opposing party may request a judgment in the case based solely on their pleadings.
Affidavit of First Witness should not include legal arguments.
A common practice among many lawyers is to turn the statement of claim or the statement of defense into a primary witness affidavit, without noticing that it Claim or Defense (and sometimes also Reply letter) include many legal claims. The litigants are not lawyers and it cannot be said that legal claims are facts that are known to them from personal knowledge.
Beyond the fact that legal arguments unnecessarily lengthen any affidavit and make it cumbersome, detailing legal arguments within the framework of a witness affidavit only confuses the litigant, and allows the opposing party's lawyer to interrogate and confuse him during cross-examination with legal issues detailed in the affidavit on his behalf.
If there is a need to address any legal claim within the framework of a primary witness affidavit (and usually there is no such need), it is advisable to do so in a specific manner and to explicitly record that the legal argument was raised in the primary witness affidavit in light of the legal advice given to the person giving the affidavit by his attorney (the lawyer representing him).
How to submit a witness affidavit to the court
For those who have access to the system The Law Net Can submit via the Internet and without physically appearing at the court secretariat. Those who do not have access to the Net-Hashtab system will have to submit a witness affidavit on their behalf at the court secretariat where their claim is being processed.
You should remember that you need to bring one copy to the court secretariat for the judge (bound and stamped), one copy for scanning into the Net-Hashtab system, one copy for receiving an acceptance stamp that will be sent to the opposing party, and one copy that will receive an acceptance stamp that will remain with the submitter.
Frequently Asked Questions Regarding the Affidavit of First Witness
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Is it always mandatory to submit a witness affidavit?
No. The judge's decisions in the case must be followed. Some judges choose to hear the witnesses during the The evidence discussion, without primary witness affidavits (in these cases, a primary investigation is conducted).
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What is the purpose of a witness affidavit?
The purpose of this affidavit is to present the party's or witness's version and present the evidence on his behalf. In fact, submitting this affidavit saves the main investigation during the evidentiary hearing.
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What happens if a decision was made to submit a primary witness affidavit and I did not submit it?
This case is very problematic for the litigant who did not act in accordance with the judge's instructions. If an affidavit is not filed on behalf of the litigant, he will seemingly be unable to assert his factual claims or present evidence on his behalf.
In these situations, the party must file a request for an extension of time to file a testimonial affidavit on their behalf as soon as possible. There is a high probability that due to this failure, the court will charge the party who did not file the affidavit on their behalf with legal costs, and it is not at all certain that the court will allow the affidavit to be filed in the case (depending on the reason for the delay and when the request for an extension of time is filed). -
What is the standard fee that lawyers charge for preparing a witness affidavit?
There is no uniform price for preparing a witness affidavit. The price depends on the complexity of the case and how many hours of work are needed to prepare this affidavit. The more complex the case, the higher the fee is expected to be (and vice versa).
