There are many circumstances where you need to get your story down in writing for legal purposes. These can include making statements to police, governments and authorities or preparing for court. Broadly speaking, statements for legal purposes are called “statements of evidence”. Some times these are made by way of Declaration and some times by way of Affidavit. The formal requirements for Statements of Evidence can be different depending on the purpose. These guidelines give a broad overview of how a Statement of Evidence can be written.
Depending on the purpose of your statement there will be specific evidence you must include in your statement. You can get help in working out what that specific evidence is by checking information available on line for example, at www.communitylaw.org.nz or www.cab.org.nz or by having an initial consultation with a lawyer.
The Golden Rule
Give yourself enough time and put the effort into getting it right.
Statements of evidence, even for lawyers, take many drafts. You need to spend time in making them as clear as possible because the clearer and more concise your statement is, the more persuasive it will be.
Computer drafts are the best way to go because it is easier to make changes. If you do not have a computer, you should try and get a friend or family member to help you. Also, many community service centres allow you to book or use computers.
Courts have their own special form for Statements of Evidence but essentially the format is generally the same and is quite logical. Numbering your paragraphs can make a Statement of Evidence easier to refer to when talking about it. By numbering paragraphs you can say, “at Paragraph 21, I talk about the second incident”, for example.
This sets out who you are, where you live and what you do. It should also set out your relationship to other parties that you refer to in your evidence and needs to state your qualifications if you think that is relevant.
I, Joseph Bloggs, of (street address) Town, New Zealand, employment title, make oath/affirm and say as follows:
This sets out the facts and evidence you rely on. Try to set out your Statement of Evidence in chronological (date order from first event to last event) form.
1. I am the applicant/respondent in these proceedings. (ie why are you involved in the proceedings)
2. On x I was telephoned by, the applicant/respondent to these proceedings, asking me to provide a quote for services.
3. On y I provided a quote for my services.
4. On z the applicant/respondent contacted me and ask me to do the work in my quote.
It makes sense to set your Statement of Evidence under sub-headings. Keep those facts in chronological order under each sub-heading.
What should a statement of evidence contain?
A statement of evidence should set out direct observations of matters or statements you believe to be true.
“K approached me waving a fist in my face and K was very red in the face and shouting. There was nobody else around. I felt afraid."
This is acceptable because it records direct observations. It could be used to persuade the Decision Maker that the person’s actions were “threatening” – notice the word ‘threatening’ is NOT used because that is an opinion (see below)!
What Shouldn’t A Statement of Evidence Contain?
Statements of Evidence should not contain opinions.
“K approached me in a threatening way”.
This is an opinion. The meaning of the word “threatening“ is not clear and may mean different things to different people.
Statements of Evidence should not draw conclusions based on observation.
"these actions showed that he wasn’t ever going to pay for the work done”
Statements of Evidence should not summarize in a general way things that have happened.
“Z was always evading me.”
This summarizes actions rather than describes direct observations.
A better way to say the above would be:
“On x I approached y for payment. He said, “I will pay you next week”. And repeat for each incident.
Statements of Evidence should not contain hearsay. Hearsay is what another person told you, you did not see it yourself.
“Peter said to me “I saw Paul leaving the building site yesterday with a stack of gear in his truck”.
The reason Hearsay is not usually acceptable is because the person who made the statement is not present to be tested as to the truth of that statement.
In the example above, the statement of what Peter said is not evidence of Paul leaving the site with gear in his truck, it is just evidence of Peter saying it. If Peter saw something important that can help your position, you should ask Peter if he will sign his pwn statement.
There are exceptions to hearsay. A lawyer can assist you with your statement if you feel you need to include hearsay and do not know if you can.
The value of Independent and Documentary Evidence
Most Statements of Evidence will have attachments. Attachments may include documents such as extracts of emails, text messages, letters, invoices, quotes, proof of receipts and expenditure, telephone accounts that show the numbers called. Basically anything that helps to prove what you are saying is true. Documents are often called “best evidence” because if shown to be genuine, they are very persuasive.
If you want friends/colleagues to write Statements of Evidence, you will probably have to draft something for them too, so don’t forget that when you are planning your time to write Statements of Evidence.
If you would like to have your evidence and statement reviewed by a lawyer don’t hesitate to contact us. We are happy to provide assistance by either reviewing your documents online/by email or by sitting down with you one on one to talk you through it.
Negotiating and Documenting Agreement - Part 3
This "How To" Series Guide helps to explain the steps involved in reaching settlement. You are reading Part 3 of 3 parts. If you would like to read Part 1 click here or Part 2 click here.
Step 2 - Negotiating
Parties negotiate directly or through their lawyers. This can be done at meetings or through email or letters. Where the relationship pool is not significant, I recommend people try to negotiate between themselves first to save legal fees.
Parties may also wish to have mediation, which means a mediator will facilitate the meeting.
If parties choose to mediate, it may be a good idea to each seek legal advice first and get a letter of advice, which summarises the facts of their case, the strengths and weaknesses of their claims, the options available, and the likely outcomes.
If parties choose to negotiate through their lawyers, this is usually done by way of a round table meeting.
Round table meetings can be an effective way to resolve relationship property matters where the parties are willing to engage in discussion in person through their lawyers.
Some key tips for negotiating on Property distributions
Step 3 – Agreement
Where a resolution is reached through negotiation, the final agreement must be signed and certified by the parties’ lawyers. The Agreement will usually contain standard clauses such as the following (examples only):
Step 4 – Settlement (After Agreement)
There will still be legal and financial steps to take to give effect to a Separation Agreement. When you sit down with your lawyer to receive advice on your proposed terms of settlement, it's a really good idea to ask them to help you prepare a list of what will need to be done.
How to work out who gets what when a relationship breaks down (Part 2).
This "How To" Series Guide helps to explain the steps involved in reaching settlement. You are reading Part 2 of 3 parts. If you would like to read Part 1 click here
What sort of documents should be disclosed?
Examples of standard documents to provide or request include:
How much information can you ask for in the disclosure step?
The main principle is that items for which disclosure is requested must be relevant, tailored and focused to the parties’ relationship property, keeping in mind that the law requires that disputes must be resolved as inexpensively, simply and quickly as possible.
Court cases show that reasonableness and proportionality are key considerations for any request for disclosure. Therefore, a party may not need to hand over requested document if the documents are not reasonably relevant to the case or it is overly onerous to provide (e.g. very expensive and time consuming to put together in light of its relevance). Parties need to seek material in an expeditious way and where such conduct becomes oppressive it may lead to a Court concluding “enough is enough”.
What if there are delays in disclosure?
On average the process of settlement can take between three to six months. If there are delays with providing or obtaining disclosure, it can take a year or more.
Step 1 can often cause delays in the settlement of relationship property especially when parties are not forthcoming with information. We can help clients avoid delays by proactively managing requests for information.
This may mean applying to the Family Court where one party has concealed information and misled the other party in relation to the true extent of relationship property.
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How to work out who gets what when a relationship breaks down
The Property (Relationships) Act 1976 provides for how property of married couples, civil union partners and de facto couples is divided when a relationship ends (including by breakdown or death).
When a relationship breaks down, relationship property disputes can be settled in two ways - either by agreement between the parties or through the Family Court.
Settling relationship property matters by agreement means the Family Court is not involved and parties come to an agreement themselves with or without the assistance from lawyers. Settling by agreement is far more effective in terms of time and money than the Court process. For these reasons I just about always encourage my clients to use this method if they can.
This is part 1 in a 3 part series to help explain the steps involved in reaching settlement and give you some tips to move forward.
4 STEPS TO SETTLEMENT
There are four key steps involved in settlement:
Step 1 – Disclosure / Information gathering
This step allows both parties to establish the total relationship property pool and create a list of assets and liabilities.
When you think about it, it makes sense that meaningful negotiation can't start unless both parties know what they are dealing with and have a full understanding of the details of what is in their relationship pool. This includes knowing what property is considered relationship property and what the value of the relationship property is. It can sometimes be hard to get the ball rolling on Step 1 and people tend to want to skip it thinking that it will just cause trouble.
From a legal perspective, without full disclosure, there is a real risk that whatever the parties agree to in negotiations will be challenged and set aside by the Court in the future. This could occur for example if it is later discovered that one party had hidden financial information (non-disclosure). Non-disclosure can lead to further legal costs and delays for both parties.
How to start the ‘disclosure’ process?
It is often best to confirm the start of this process in writing with one party requesting from the other party financial information or other details in respect of relationship property. You can do this using a lawyer, with the help of a lawyer checking your letter or on your own.
What “relationship property” covers
Relationship property covers things of financial value that were gained during the relationship. It can include:
These issues are explored in Part 2 of this series, so if you would like to know more, subscribe by clicking on the RSS Feed on the right.
Trish likes to do her thinking while she drives - what a perfect combination for a mobile lawyer!
This blog shares those thoughts.
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