How Michigan Appellate Courts Evaluate Affidavits — Why Most Are Ignored

Affidavits feel powerful. They’re sworn, they’re detailed, and they look like real evidence. And litigants often assume that if an affidavit supports the truth, the appellate court will consider it. However, in Michigan, the opposite is usually true. 

Appellate judges are bound by strict rules about what they can and can't look at. And affidavits almost always fall into the “can't" category. That's why so many litigants are shocked to learn that the document they thought would prove everything ends up being legally invisible. 

Mark Linton is one of Michigan's most seasoned appellate attorneys. He's seen the patterns, the blind spots, and the traps that swallow affidavits whole. And here, he explains how Michigan appellate courts evaluate affidavits and why most are ignored. He also shows you exactly what separates the rare affidavit that matters from the many that don't.

The Basics of an Affidavit Under Michigan Law

An affidavit is a written statement of facts that someone swears or affirms is true. And it's treated as sworn testimony on paper. It's signed in front of a notary (a trusted, state-approved witness) or another authorized official. 

Michigan Court Rules (MCR) 2.119(B)(1) says that any affidavit signed for or against a motion must meet three requirements. These are:

-It must be based on personal knowledge 

-It must include precise, factual information that qualifies as proper evidence

-It must demonstrate that the affiant (the person signing the affidavit) could take the stand and competently testify to those acts if sworn in court 

These requirements apply in civil motion practice. However, the same standards often extend to criminal procedure motions under analogous rules, as per MCR 6.001(D). But that's just the formal side. Let's look at what happens when an affidavit reaches an appellate court.

The Appellate Record Rule: Why Michigan Appellate Courts Ignore Affidavits 

When you appeal a case in Michigan (be it civil or criminal), appellate review doesn’t start with new evidence. Instead, it starts with the case record from the trial court. 

MCR 7.210(A)(1) states that an appeal to the Court of Appeals is heard on the original record, which consists of three things. These include papers filed in the lower court , or a certified copy. They also include the transcript of the proceedings and the exhibits introduced in the lower court.

This means that appellate judges don’t consider new affidavits filed for the first time on appeal. And this is because those affidavits aren't part of the case record. A leading Michigan case that drives home this rule is People v. Williams (2000). 

In this case, the defendant attempted to rely on an affidavit. And it had never been presented to the trial court. And the Michigan Court of Appeals flatly refused, stating it can't allow the affidavit to extend the record.

Why Michigan Appellate Courts Ignore Affidavits in Practice 

Let's say you submit an affidavit after the trial court's judgment. And you want to support your appellate brief or add new factual claims. The Court of Appeals may strike references to that affidavit or refuse to consider it. 

Alternatively, it may dismiss your argument entirely because it relies on evidence outside the record. 

Motions, Reconsiderations, and Affidavits in Michigan Appeals

Affidavits do have a role in appellate procedure. However, it's limited and tightly circumscribed. 

The Court of Appeals allows motions such as motions to affirm under MCR 7.211(C)(3), where affidavits are considered. But these are procedural tools, not avenues for new evidence. And the focus remains on issues properly preserved at trial or by motion in the lower court.

The same case applies to motions for reconsideration. Affidavits attached to these motions may be considered at the trial court's discretion. And if the trial court considers them, appellate courts may include them in the review.

Cases like Yoost v. Caspari (2011) and Gary v. Farmers Ins Exchange provide a good demonstration. They recognize that a lower court actually considers new evidence or exhibits with a reconsideration motion. And when that happens, the evidence can become part of the record if properly treated in the lower court. 

However, trial courts aren't required to consider new evidence on reconsideration. And if a party could have presented the evidence at first, but didn't, appellate courts will often reject it as late or improper. 

Special Statutory Affidavit Requirements in Michigan Courts

For some claims, Michigan statute demands affidavits of a particular type, notably in specialized civil matters. 

Medical malpractice under Michigan Compiled Laws (MCL) 600.2912d is a good example. Under this law, malpractice complaints in circuit court must be accompanied by an affidavit of merit from a qualified expert. And defendants must answer with an affidavit of meritorious defense.

Historically, if an affidavit was flawed or missing, the whole complaint was invalidated. And it didn't stop the statute of limitations. However, the Michigan Supreme Court's 2023 ruling in Ottgen v. Katranji changed this approach.

The ruling clarified that a complaint filed without a proper affidavit now tolls the statute of limitations. And courts should typically permit plaintiffs to correct affidavit defects instead of dismissing the case with prejudice. Substantive requirements for affidavits, however, continue to be strictly examined and enforced. 

For example, in the Ligons v. Crittenton Hospital (2011) case, the Court of Appeals upheld the dismissal of a malpractice claim. This was because the plaintiff's affidavit of merit lacked the specific detail required by the statute. And this demonstrates how Michigan courts scrutinize affidavits for adequacy.

Other statutes carry unique affidavit requirements, such as certain foreclosure or probate rules. However, those vary by context and are usually enforced at the trial court level rather than on direct appeal. 

Michigan Appellate Courts and Affidavits in Post-Conviction Cases

In criminal appeals and post-conviction motions, affidavits are sometimes used. And this includes motions for relief from judgment under MCR 6.508(D). Litigants attempt to attach affidavits outside the original trial record to support various claims. These claims include ineffective assistance of counsel or newly discovered evidence.

And the general rule still applies. Appellate courts generally limit review to the existing record. The only exception is when the claim arises under specific statutes or rules that accommodate new evidence. And even then, it should be under controlled circumstances. 

The general rule that appellate courts don't expand the record traces back through decades of Michigan precedent. And this includes cases where appellate opinions clearly refused to consider affidavits that were not in the lower court's record. 

A key Michigan case that illustrates how courts treat affidavits in post-conviction contexts is People v. Williams (2000). 

Here, the defendant attempted to support an ineffective-assistance-of-counsel claim by attaching new affidavits on appeal. These affidavits were never submitted to the trial court during the underlying proceedings or in any post-judgment motion. And the Michigan Court of Appeals rejected the attempt outright.

Rare Exceptions

Rare exceptions to the general rule exist. For example, MCR 7.216(A)(5) allows the Court of Appeals to remand an appeal to the trial court to consider new evidence. This doesn't mean the appellate court is weighing the affidavit itself. Rather, it’s sending you back to gather evidence within the proper context.

Motions under MCR 2.119(B)(2) are another exception. They may allow an affiant to explain why evidence cannot be presented as a formal affidavit. And this may be because third parties hold the evidence. However, these exceptions are procedural detours that rarely change appellate outcomes on their own.

Why You Need Mark Linton Before Your Affidavit Sinks Your Appeal

If you're heading into an appeal with an affidavit, you might think it'll fix everything. And this makes you the kind of person Michigan appellate courts unintentionally ambush. The truth is, affidavits don't fail because the facts are wrong. They fail because the strategy is wrong. And no one in Michigan understands that better than Mark Linton. 

He’s a tactical Michigan appeals lawyer. He knows exactly which motion, under which rule, and at what stage, can properly introduce an affidavit. He also knows when it's better to avoid affidavits entirely and pursue a different evidentiary route. 

Additionally, he ensures every exhibit is admissible, authenticated, and record-ready. And he only uses affidavits that meet the competency test. 

Contact Mark Linton today. Affidavits are landmines, and most advocates step on them. But Mark knows where every one of them is buried.