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I wrote an affidavit for a divorce proceeding in Georgia (USA), as a fact witness (not an expert witness). I read an affidavit of someone who wrote an affidavit for the other side. I am concerned about the content of that affidavit because it misleading. I believe the person who signed the affidavit is sincere but signed a version that had been heavily edited by someone else. Are there legal constraints on my contacting that person and attempting to talk w him about his affidavit. (I have had some contact with him in the past.)

Update: Two witnesses on the other side said they have changed their affidavits based on my discussions with them, removing incorrect guesses that they originally had presented as fact. An attorney could have shown their original affidavits were not based on their own personal knowledge, but rather on conjecture, but that would have meant 2 depositions, costing several thousands of dollars. Already the case has cost many tens of thousands of dollars and is a severe strain on family resources.

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    You may be asking the wrong question. Not to be all Jurassic Park on you, but it seems like you're worrying about if you can as opposed to if you should.
    – corsiKa
    Dec 15, 2015 at 22:39
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    Agree with @corsiKlauseHoHoHo. Your responsibility as a fact witness is to provide a true and accurate account of the facts, as you understand them. You're not responsible for vetting submissions made by others. That's what the court, and the lawyers, and the judge are all there for. To suss out the truth from the lies/deception/misleading claims. So the best advice is probably to just do your job, and let the other people do theirs. If you weren't asked to intervene by one of the lawyers, then don't.
    – aroth
    Dec 16, 2015 at 1:19
  • @aroth My goal is to keep cost down. See update to my question.
    – user3270
    Jan 5, 2016 at 17:49

3 Answers 3

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Unless you received an order from the court prohibiting contact, it might be legal; but it's probably not the best idea.

Let the lawyers handle it

Attorneys have far better, more effective means of dealing with this situation than the course of action you describe. Lawyers have productive tools to accomplish the job and they know how to use them.

For example, assume the best-case-scenario results from your idea and you get the other side to admit their affidavit is fallacious in some way.

"Aha!" you shout. "Success! Daylight!"

But then what?

It's not on record. You can't testify to the admission because that's hearsay. Now imagine they next share this information about your little conversation with the counterparty that had them sign the affidavit in the first place. After first being alerted of your concerns, they both now act in concert to shore up their stories and you never see that "daylight" again.

Contrast that outcome with one where your guy or gal's attorney deposes the witness under oath, gets them to concede to your version of the facts then introduces the deposition as favorable evidence at trial. That's a much better outcome for "your side." Wouldn't you agree?

Be wary of unintended consequences

Generally speaking, such direct contact between the parties is often problematic and rarely helpful. (Except, in some cases, when direct contact between the parties leads to a negotiated settlement. Which happens far less often than the direct contact going sideways making the situation even more intractable.)

Before you launch off on your own and do something that might be counterproductive. First, identify the areas of the affidavit that you think are inaccurate. Give that information to the party you support, then have them run it by their attorney to figure out the best way to handle the situation.

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Legally speaking, yes, witnesses can talk to each other unless the judge has told them not to. The problem is that it can create the appearance of improper influence, or improper motive, and judges don't like that stuff. The last thing an attorney wants is a judge grilling her about why her witness has been calling the other side's witness

Witnesses have different versions of the facts. That's why we have them (witnesses). Of course the two witnesses will disagree about facts, that's why they are chosen to testify! If a party suspects an affidavit to be false or fraudulent they can formally attack the credibility and try to impeach the witness. At that point it comes down to credibility, which is weighed by the fact finder.

If you're trying to set the record straight for non-legal reasons, like something more social in nature, it's still a good idea to run it by the attorney if you care about the outcome of the matter and the person you seem to be advocating for.

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Remember, when 2 people are witness to an event there are 3 sets of facts:

  1. What Person A believed happened,
  2. What Person B believed happened, and
  3. What actually happened.

Courts are the appropriate forum for taking 1 & 2 and deciding what 3 was. There may be no legal impediment to witnesses discussing the issues but every single time a human being accesses a memory they change that memory; our brains are not like computer hard drives. It is equally likely that what you remember is further from the actual facts then their recollection. Leave it alone.

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