Yesterday, in Ondo v. City of Cleveland, the Sixth Circuit addressed precision in both affidavits and oral argument. The case involved a Section 1983 action arising out of an altercation with police officers. In response to the officers’ summary judgment motion, the plaintiffs submitted affidavits based upon “personal knowledge and belief.” The district court struck the affidavits based on their failure to be based upon actual knowledge, and the Sixth Circuit affirmed.
On the affidavits, the Sixth Circuit held that the court acted within its discretion in striking them, relying largely on a prior unpublished (and the Court noted, non-binding) decision. The Court emphasized that its decision was not the product of formalism, or designed to take advantage of a “stylistic error.” Rather, the district court reasonably could not separate what parts of the affidavit were the product of personal knowledge, and what parts were based on belief. That was particularly so in light of factual discrepancies from prior filings by the plaintiffs.
On the oral argument point, counsel conceded at oral argument that a particular claim could not survive if the Court affirmed the striking of the affidavits. For Judge Sutton, who concurred in part and dissented in part, the concession sufficed to resolve the claim – he “would hold [plaintiffs’ counsel] to their answer.” The majority, however, felt compelled to address the merits, noting that they were not aware of any case “in which we have concluded, after full briefing, that Plaintiffs have completely abandoned every claim in their entire appeal based on a single verbal exchange during argument that did not include a clear and unequivocal surrender of all remaining issues,” and it expressed concern about a “chilling effect such a practice would have.”
The takeaway? On affidavits, be precise. Once you introduce the “belief” aspect, you open yourself up to challenge. In other words, pay attention to the admissibility requirements of Rule 56. On oral argument, the court’s guidance is less clear, particularly in light of the separate opinion. But counsel should generally expect to be held to their concessions at argument and not feel free to make such concessions with impunity and the hope that the court will view them as something other than what they are.