Declaration For Attorney Flashcards
Responsibility
It is the responsibility of the attorney to review the declaration when reviewing any family law documents presented for
review. This includes declarations in restraining orders (DV, CH, EA), responses to restraining orders, as well as RFOs and Ex
Parte RFOs and Responsive Declarations to RFOs.
What are you NOT doing?
Are not strategizing or providing advice when reviewing and giving feedback on declarations. Also not reviewing for grammar, punctuation, spelling, or profanity, as long as the declaration is understandable.
Why review?
Reviewing a declaration is another opportunity to educate litigants and staff about what a declaration is and what the
purpose is. Just giving the litigant the handout on how to write a declaration is not enough. When we read the declaratio n,
it gives us the opportunity to see where more education is needed. Ultimately, it is the litigant’s decision to make any
changes or additions to a declaration
How it helps us?
By reading the declaration, we also can learn more about what is going on, including safety issues, and see that additional
referrals may be appropriate in this case.
Some types of feedback that do not constitute advice or strategy can include…
1 Explain how the court makes decisions?
2 Spelling so off - not understand a word
3 Something is not clear
4 Asking if they want to type it
5 Talking about more incident, but not writing them down
6 Legal conclusion
7 Referral for something else
8 Internal Consistency
9 What is required?
10 Sufficiency of declaration?
Explain how the court makes decisions?
The court makes decisions based upon facts. Are there any facts you want to include to help the court understand what happened?
Spelling so off - not understand a word
I’m not sure what this word is. If I don’t know, the judge may not either. (If the spelling is so far off that the word is indecipherable.)
Something is not clear
I’m not clear what you are trying to say here. If I’m not clear, the judge may not be either. (if a section is unclear or
indecipherable.)
Asking if they want to type it
I’m having trouble reading your writing. Would you like to type it on a computer so the judge will be able to read it?
Talking about more incident, but not writing them down
When you came in, you mentioned one or more incidents, but I don’t see that here. Is that something you would like to tell the judge about? If it’s not in the declaration, the court won’t know about it. Telling us, is not the same
as telling the judge about it.
Legal conclusion
Saying whether something is abuse or a person is abusive is a legal conclusion. The judge will make that conclusion.
You need to describe what the other person actually did, so the judge can decide whether that is abuse. Are there any facts or details about what happened that you want to tell the judge about, so they have the whole picture when making their decision about your restraining order? An example with details might be that the other party hit the litigant with a closed fist on the head instead of saying “they abused me”.
Referral for something else
If someone is not paying rent, there is a different type of case to evict someone. That is an Unlawful Detainer case.
We can give you a referral for that. Are there any facts or details of abuse, or something that is making you fearful that you want to tell the judge about in this case? Ultimately, it is the litigant’s decision whether they will proceed
solely based on non-payment of rent.
Internal Consistency
I see that here you have May 5 as the date of the incident on your document, but in your declaration you say May 17. Is this correct, or are there incidents on more than one date? Or – the RFO says they want to modify custody and visitation, but the declaration is talking about child support: I see you mention child support in your declaration. Is that something you want the court to make orders about?
What is required?
To make sure the litigant understands what is required for their declaration: This is a request to modify custody after a judgment. The standard for the judge to consider in ordering a modification is a change of circumstance since the judgment was entered. Is there anything you would like to tell the judge about what is different now from when the
judgment was granted?
Sufficiency of declaration?
We cannot comment on the sufficiency of the declaration: I can’t tell you if something will be sufficient. The judge will make that decision. You need to read it over and decide whether you have included everything the judge needs to know to be able to decide whether to make the restraining orders you are asking for.
