Courts don’t count affidavits — they weigh evidence

Ahsan Mustafa drills down into what makes a strong affidavit.

One of the more persistent misconceptions in court proceedings is that a witness’s evidence can be undermined simply by producing another affidavit criticising that witness. In practice, matters are rarely so straightforward.

Courts do not resolve disputes by counting affidavits or deciding which side has attracted the most support. The real question is whether a witness is giving reliable evidence about matters within their own knowledge and whether that evidence is supported by the wider facts of the case.

At its strongest, an affidavit deals with matters the witness personally observed or experienced. A witness may have attended a meeting, received a document, participated in a decision or witnessed a particular event. Evidence of that nature can assist the court because it relates directly to matters within the witness’s own knowledge.

Evidence vs opinion

Difficulties often arise when affidavits move beyond evidence and into opinion. Assertions about another person’s motives, character or honesty may sometimes be relevant, but they are rarely a substitute for factual evidence. A witness who says, “I attended the meeting and this is what occurred” is providing evidence. A witness who says, “I believe this person is dishonest” is usually expressing a personal view.

That distinction matters because courts are concerned primarily with facts rather than perceptions.

It is also common for parties to assume that attacking a witness’s character will automatically undermine their credibility. Experience suggests otherwise. A witness may be unpopular, controversial, difficult to work with or involved in longstanding disputes with others. None of those factors necessarily establish that their evidence is inaccurate.

Courts are routinely asked to determine disputes between individuals who hold strongly adverse views of one another. The question is not whether a witness is liked or disliked, but whether their account of the relevant events can be relied upon.

Where affidavits conflict, courts will often consider whether a witness’s account is internally consistent and whether it is consistent with other reliable evidence in the case. Inconsistencies do not automatically render evidence unreliable, but they may affect the weight that can properly be attached to it.

For that reason, documentary evidence often assumes particular importance.

Contemporaneous records

Where competing accounts are presented, courts frequently look to contemporaneous records. Emails, minutes, correspondence including the envelope it was received in, file notes and other documents created at the time can provide an objective reference point against which witness evidence can be tested. Such documents often carry significant weight precisely because they were created before litigation was contemplated.

A witness whose account is supported by contemporaneous documentation may therefore be in a stronger position than several witnesses whose evidence consists largely of opinion or recollection unsupported by records.

Long-running disputes can present a further complication. It is not unusual for affidavits to contain references to historic disagreements, governance disputes, personality conflicts or allegations that have circulated for years. While such matters may sometimes provide useful context, they do not necessarily assist the court in determining the issues that require to be resolved.

Courts generally remain focused on the matters in dispute. The existence of an old grievance does not, of itself, establish that a witness is correct or incorrect about current events.

Similarly, the fact that multiple witnesses criticise the same individual does not necessarily determine the outcome. When faced with several affidavits attacking one witness, the court is likely to consider whether those witnesses have direct knowledge of the matters they describe, whether they are independent of one another and whether their evidence is supported by objective material rather than repeated assertions.

Five witnesses expressing the same opinion may ultimately carry less weight than a single witness whose evidence is based on first-hand knowledge and supported by contemporaneous records.

Factual focus

Tone can also influence the weight afforded to witness evidence. Affidavits that remain focused on factual matters are often easier for courts to evaluate than those that devote substantial attention to personal criticism or argument. This does not mean that calm witnesses are always right or forceful witnesses are always wrong. Rather, evidence is most useful when it assists the court in determining facts rather than advancing a broader dispute between the parties.

Ultimately, an affidavit is not defeated simply because another affidavit attacks it. Courts assess witness evidence by reference to relevance, reliability, personal knowledge, consistency, documentary support and overall credibility. The process is qualitative rather than numerical.

Litigation is not a contest to determine who can assemble the largest group of supporters. It is an exercise in determining which evidence can safely be relied upon. For that reason, the most persuasive affidavit is often not the most detailed, the most emotional or the most aggressive. It is the one that gives the court confidence that the witness is seeking to assist the fact-finding process rather than influence its outcome.

Ahsan Mustafa is a senior associate at Aberdein Considine LLP; he is accredited by the Law Society of Scotland as a specialist in debt and asset recovery.