Commercial Litigation Monitor

Tools for Early Case Assessment: CaseMap, Decision Tree and Game Theory

Daniel D. Droog — Wed, 16 Feb 2011 13:00:00 -0600

According to the CPR’s Early Case Assessment Resource Checklist:

As today’s law firm and corporations work to manage litigation costs and improve outcomes, early case assessment (ECA) is taking on an increasingly critical role.

Early case assessment (ECA) is a much talked about topic. Although, the importance of assessing a case early and often has been known for some time, one of the more recent developments in the practice of law is the tools which lawyers and clients can deploy to conduct insightful, accurate, and ultimately useful ECAs. A few of the more interesting tools/techniques I have utilized are CaseMap, Decision Tree, and Game Theory.

CaseMap

CaseMap case analysis software by LexisNexis is probably my favorite piece of litigation technology. With CaseMap, your litigation team can compile key players, events, and documents from the very beginning of a potential dispute, build chronologies (that are linked to the actual evidence), and update research and task lists throughout the life of the matter. Gone are the days of repetitive work, wasted discovery, and mindless word processing. Instead we use CaseMap on nearly every matter at our firm and give the client access to the "map" so they can participate in "building" the case. At any moment we can provide an accurate snapshot of the matter to company executives.

Decision Tree

Several years ago I purchased the Decision Tree software by TreeAge Pro and the companion guide by Marc Victor of Litigation Risk Analysis. It may be my fascination with science and flowcharts, but few things are more insightful than collecting the key decision makers in one room, building a Decision Tree, and then (wait for it . . .) rolling it up to value the likely outcomes. Decision Trees have obvious limitations (see below) but in terms of identifying the key areas in a dispute that will have a big impact on the outcome and giving a range of possibilities that goes beyond simply a "gut feeling," we use Decision Trees whenever possible.

Game Theory

At the CPR Annual Meeting in New York last month, Bruce Bueno de Mesquite presented on the use of Game Theory in dispute resolution, specifically in mediation. Unlike Decision Trees, Game Theory is more focused on what all "players" that can influence a potential outcome are concerned about or not concerned about, articulating or not articulating, motivated by or not motivated by, focussed on or not focussed on. Although Game Theory advocates would agree that not everything can be predicted, they are quick to point out that what can be predicted can also be engineered. Thus, Game Theory provides promise in both predicting and ultimately engineering resolution of disputes.

Building the Litigation Department of the Future (as Part of a Modular Law Firm)

Daniel D. Droog — Tue, 25 Jan 2011 15:08:04 -0600

With more complex disputes, fewer experienced practitioners, and tremendous cost pressure, global businesses are challenged to find outside counsel that can meet their demands and effectively assist in resolving disputes. These realities raise the question of how to build the litigation department of the future? A question that I and several colleagues from around the world discussed at the IBA Annual Conference in Vancouver.

Our key findings are similar to the refrain I have heard echoed over and over again by general counsels, heads of litigation and in-house lawyers. In many ways our findings are unsurprising. Yet, I think most litigators would agree that these findings taken as a whole are in fact a paradigm shift a way from the traditional bigger-is-better approach towards a more precise and adaptable approach resulting in the litigation department of the future as the combination of several, very select groups of lawyers serving the client as one modular law firm.

The key findings at the IBA conference and the principles that have informed our firm are:

Complex disputes require a focused team of professionals keyed in on the important issues and not wasting time or money on items that are not essential or can be handled at a lower pay grade. In other words, a litigation department cannot be overly leveraged with a huge pyramid of lawyers.
Rate and fee flexibility is demanded and often alternative rates and risk sharing is possible. In other words, companies will not and cannot pay the same rates for docket level employment disputes as they would pay for complex commercial cases that can and should be contingency arrangements -- one size does not fit all.
Experience and talent as both a lawyer in a courtroom and arbitration setting and experience with project management of complex disputes is paramount. In other words, in your litigation department the entire team needs to be experienced and experience and talent are more than just arguing cases to a jury, although that experience is invaluable and that talent is essential.
Use of technology, provision of non-traditional services such as risk assessment and early case evaluation are expected. In other words, a litigation department provides counsel that is more than lawyering and use of the latest tools, technologies and state-of-the-art practices is important.

Given these findings, we concluded in Vancouver (and incidentally it has been evidenced by the legal response to the BP Deepwater Horizon episode) that sophisticated users of legal resources are building their own modular law firms by combining groups of select lawyers that are adaptable to the client's legal challenges in the current economic environment while achieving the desired result: favorable resolution. Any litigation department of the future will need to be willing and ready to plug into such a modular firm if it really wants to be the litigation department of the future.

Photo by Evelyn Proimos used with permission through CreativeCommons.

Baseball Arbitration Part III (The Practice in Real Life): DirecTV Cries Foul Over FCC's Proposed Baseball Arbitration Procedures

Daniel D. Droog — Tue, 18 Jan 2011 08:55:48 -0600

Special thanks to my partner and frustrated sports fan, Joel Montgomery for providing the background for this post.

With the college football bowl season over and the NFL playoffs in full swing, baseball is not at the forefront of America’s collective sporting conscious at the moment. However, baseball-style arbitration, or at least the threat of baseball-style arbitration, is again the source of debate within the Federal Communications Commission. As reported by John Eggerton of Broadcasting & Cable Magazine, satellite television provider DirecTV has asked the FCC to reconsider the use of baseball-style arbitration in valuation disputes relating to programming rights fees – the fees paid by cable and satellite companies for the right to broadcast television networks. DirecTV’s move is a response to an internal draft order circulated by FCC Chairman Julius Genachowski, which would grant approval of the Comcast acquisition of NBC-Universal, but would require Comcast to submit programming fee disputes to arbitration. The FCC approval would reportedly require broadcast carriers, like DirecTV, to arbitrate value with Comcast/NBC on the basis of “bundles” of up to fifteen channels at a time.

As many sports fans are all-too aware, the cable and satellite television providers’ practice of bundling channel offerings can make for some difficult valuation decisions: Are you huge football fan who wants the NFL Network? Comcast can make that happen for you, so long as you pay an additional fee to subscribe to its “Sports Entertainment Package,” thus requiring you to simultaneously subscribe to the Tennis Channel and Fox Soccer Channel, regardless of whether you know the difference between a header and a foot-foul. Or maybe you’re a futbol fan who lives and breathes the English Premier League? You can get Fox Soccer Channel on DirecTV, but you’ll also be paying for an obligatory dose of fly-fishing and elk-hunting programming on the Outdoor Channel as part of subscribing to DirecTV’s “Sports Pack” of channels.

As DirecTV concedes in its own correspondence with the FCC, these “program tying practices” have raised concerns in previous FCC proceedings. Regardless of whether the current program bundling practices of the cable and satellite providers skirt the line of illegal “tying” under state and federal antitrust laws, the practice is certainly out of step with the rise of consumer-driven media – such as streaming, web-based content (like Hulu), TiVo (and assorted copycat DVRs), and on-demand programming, each of which allow consumers to make marketplace decisions on an individualized, program-by-program basis.

As we have discussed previously, baseball-style arbitration is thought to have appeal in valuation cases, by confining the arbitrator and narrowing the dispute -- forcing the parties (and then the arbitrator) to pick the last best offer. Further, the parties are incentivized to make the most reasonable offer they can and arguably help preserve the business relationship and expedite resolution. But the bundling of television channels for arbitration purposes proposed by the FCC adds a layer of complexity to the dispute resolution mechanism. What is it worth to a soccer fan to see a live match between Manchester City and Liverpool if the fan must also pay for access to channels that the fan will never watch? Correspondingly, what is it worth to DirecTV to have the right to broadcast NBC-Universal channels, some of which are more popular than others, and what is the aggregate fair market value of those individual bits of media when bundled for “program access rights” purposes? By employing the “all or nothing” approach that characterizes baseball-style arbitration, the FCC is potentially putting the cable and satellite companies to the same valuation dilemmas that the cable and satellite providers put to their own customers. The result could be either the perpetuation of the unpopular practice of bundling or maybe, just maybe, the beginning of its demise.

Baseball Arbitration Part II: The Clause

Daniel D. Droog — Mon, 15 Nov 2010 16:00:00 -0600

In my previous post, I introduced the concept of Baseball Arbitration and discussed some of its laudable goals and potential pitfalls. In this post I address how to draft a baseball arbitration clause and in my final post on this topic I will cover some tips on managing a baseball arbitration proceeding so that the promised goals of this alternative dispute mechanism can be realized.

The Clause Should Be Simple and Clear

The most common problem with arbitration clauses is unnecessary complexity that can ultimately undermine the parties' original intent of getting any and all disputes out of court and into arbitration. In the case of baseball arbitration the over complexity problem is even more likely because in addition to a standard arbitration clause (more on this below), the baseball rider is needed; i.e., the parties need to add language in the contract or post dispute agreement making the arbitration a baseball arbitration. Well recognized arbitration counsel Paul Friedland, head of White & Case's International Arbitration Group, lists the following baseball arbitration rider as a viable consideration:

Each party shall submit to the arbitrator and exchange with the other, in accordance with a procedure to be established by the arbitrator, its best offer. The arbitrator shall be limited to awarding only one or the other of the two positions submitted.

Arbitration Clauses for International Contracts 119 (2d ed., 2007).

Although simple, this rider into an arbitration clause is really all that is needed. I might also suggest for clarity that the parties title the rider provision in the agreement as "Baseball Arbitration" Or "Best Offer Arbitration." If the suggested baseball rider seems too simplistic for you, it may be that baseball arbitration is not the right game for you and the dispute resolution mechanism needed in your commercial or construction contract requires more upfront definition. For much more detail on drafting arbitration clauses see A Practical Guide For Drafting International Arbitration Clauses.pdf by one of the leading international arbitration practitioners, Doak Bishop of King & Spalding.

Baseball Arbitration of Commercial & Construction Disputes (Part 1)

Daniel D. Droog — Thu, 04 Nov 2010 08:00:00 -0600

Baseball Arbitration has gained popularity as more regimes, institutions, companies and law firms seek to manage the time, costs and consequences of arbitration, particularly when the dispute to be arbitrated is between entities that desire to maintain long term commercial relationships. The concept originated in Major League Baseball when a club and player could not agree on a salary figure and under certain circumstances could submit their respective figures to a sole arbitrator who was bound to pick one of the submitted figures.

In the commercial and construction context, there are as many definitions of Baseball Arbitration as there are potential variations; i.e., too many. The concept is generally captured well by arbitration scholar Jack J. Coe, Jr. in International Commercial Arbitration: American Principles and Practice in a Global Context:

Also known as "final offer" or "flip-flop" arbitration; arbitration in which the arbitrator is requested to make an award by adopting, without modification, one of the parties' respective final positions. Typically, the technique is used when the parties differ only over a monetary amount.

The last sentence of Coe's definition is important because it underscores a key issue I recommend parties consider prior to agreeing on and drafting a Baseball Arbitration clause into their commercial and construction contracts.

Do you Really Want to Play Baseball?

Some commercial and construction disputes may be nothing more than a fight over an amount due. In those cases, Baseball Arbitration may be the most desirable dispute resolution mechanism. But how often are your disputes limited to only a claim over an amount due or a valuation dispute? Construction disputes, for instances, usually involve delay claims and performance issues. Delay claims or performance issues can be monetize and molded to fit into a Baseball Arbitration mechanism, but based on my experience in Baseball Arbitration this will greatly alter the way in which the dispute is addressed.

Superficially, the idea of Baseball Arbitration has appeal. Its aims are to presumably confine the arbitrator and narrow the dispute by forcing the parties and then the arbitrator to pick the last best offer. Further, the parties have an incentive (winning) to make the most reasonable offer they can and arguably help preserve the business relationship and expedite resolution. Although laudable goals, there is no clear research or verifiable anecdotal evidence to suggest that Baseball Arbitration is particularly better than other arbitration mechanisms at narrowing a dispute or preserving a relationship.

In the modern era of complex contracts, international joint ventures, and global construction projects, disputes often involve multiple issues, some important procedural and threshold questions, various sets of applicable law and in many cases more than two parties. Such disputes raise serious questions regarding the use of Baseball Arbitration, such as:

Who is entitled to make baseball offers?
How many offers per side?
Is one comprehensive offer sufficient or is one offer per issue required?
What if multiple contracts are involved in the dispute?
When should the offers be exchanged?
When and how are threshold issues or procedural issues not encompassed within the offers decided?

The list could go on. It would be nearly impossible to predetermine all the issues and thus draft an airtight Baseball Arbitration clause. In my forthcoming posts, I will discuss these issues in more depth, including offering some suggested clauses and procedural mechanisms for carrying out an efficient Baseball Arbitration.

For now, the American Arbitration Association and International Centre for Dispute Resolution provide some very general but good advice on Baseball Arbitration in their handy Drafting Dispute Resolution Clauses A Practical Guide.pdf, in which they state:

'Baseball' arbitration is a methodology used in many different contexts in addition to baseball players’ salary disputes, and is particularly effective when parties have a long-term relationship. The procedure involves each party submitting a number to the arbitrator(s) and serving the number on his or her adversary on the understanding that, following a hearing, the arbitrator(s) will pick one of the submitted numbers, nothing else. A key aspect of this approach is that there is incentive for a party to submit a highly reasonable number, since this increases the likelihood that the arbitrator(s) will select that number.

I am a fan of baseball and in the right context I am also a fan of baseball arbitration because of its commercial utility and relationship preserving focus but its value should be weighed and a decision made as to whether it is the correct mechanism for resolving any potential dispute related to your commercial and construction contracts.

Umpire photo by Keith Allison. Cranes photo by Seabaryo. Both used with permission through CreativeCommons.

Use of Social Networking Sites in Litigation

Laina Miller — Thu, 21 Oct 2010 14:15:26 -0600

The growing popularity of social networking sites, such as Facebook, MySpace, and Twitter, is having an increasing impact on litigation. Social networking sites are free web platforms through which users can establish profiles and post personal information. In view of the accessibility and abundance of personal information on social networking sites, I, like many litigators, have made it a regular part of my practice to search these sites for insights into, and even potential evidence that may be used against, opponents or witnesses. Indeed, a user’s Facebook or MySpace profile may contain information about the user’s age, employment, education history, and place of residence. Many users post “status updates,” “comments,” or “tweets” that may reveal their whereabouts, activities, interests, and views. Users may also be featured in posted photographs, which can further give insight into their recent activities. For example, postings, photographs, or even videos may show an allegedly injured plaintiff routinely engaged in rigorous physical activities such as running marathons or waterskiing. Without a doubt, social networking sites can prove to be a treasure trove of information and should be a tool in any litigator’s arsenal.

The utility of social networking sites in litigation does not come without some limitations and potential pitfalls, however.

Ethics

First and foremost, attorneys must consider the ethical implications of obtaining information from a social networking page by deceptive means. This issue was recently addressed by the Philadelphia Bar Association in a 2009 Ethics Opinion, in which the Bar Association found it unethical for an attorney to use a third party to send a “friend request” to an adverse witness’ private Facebook page in order to discover impeachment evidence. See Phil. Bar Ass’n Prof’l Guidance Comm., Op. 2009-02 (March 2009) Opinion_2009-2.pdf The cautionary message to attorneys is to be above board in all efforts to secure online information and avoid deceptive tactics.

Authentication

Finding information through a social networking site is only the first step toward using it to a client’s advantage in litigation. Next, the information must be captured either through a screen shot or a hard copy print out of the page. The final hurdle is ensuring that the information is admissible as evidence in the case. Like all other evidence, information from a social networking site, whether used in a state or federal court case, must be authenticated, i.e., proven to be what it purports to be. One way to achieve this is with an affidavit from the individual who captured the information stating that the evidence accurately reflects what was on the site at the time that it was captured. The witness should state something to the effect of: “Exhibit A is a true and correct copy of a page copied from Person X’s website. On [date], I typed www.facebook.com and accessed Person X’s profile page. I have personal knowledge that this is Person X’s Facebook profile page because it contains the Facebook logo and Person X’s name and photograph.” See Hon. Randy Wilson, Admissibility of Web-Based Data, State Bar of Texas Litigation Section Report: The Advocate, Vol. 52, Fall 2010, at 32. An alternative method of authenticating an individual’s social networking page is to ask the individual, either in a deposition or through a request for admission, to confirm that the evidence is, in fact, an accurate copy of his or her posting.

IBA Vancouver 2010: The Globalization of the Practice of Law (at least my practice . . .)

Daniel D. Droog — Fri, 08 Oct 2010 20:45:33 -0600

Today there will be several thousand contracts executed by people who don’t live in the same nation and thus don’t share the same laws and many not share a common culture or language. What are you going to do as their lawyer?

Those are the words a friend and sucessful businessman said to me nearly a decade ago. Even though I did not fully know then what “international law” meant, I knew I wanted to work with businesses and primarily focus on dispute resolution.

Today, as I left the International Bar Association Annual Conference in Vancouver, I took the time to do a back-of-the-envelope (or in this case back-of-the-airline-napkin) calculation of the “international” nature of my practice. The result: at least 65% of my work has been international and at times over 90% of my time is spent on international matters.

The practice of law in America has been and will continue to be “local.” Local bar associations, state bar exams, unique rules and court admissions play an important roll in the U.S. legal system. But if you work, as I do, in commercial litigation/arbitration and you broadly define an international matter to be a matter that includes at least one of the following:

a non-American party; or
the application of foreign law; or,
a project based outside of the United States.

It is easy to see how in the global market a majority of my time is spent working with companies on international disputes.

I now know that not only were the words of my friend nearly a decade ago true; but also, the implications of the global economy for commercial disputes and international business are enormous. The application of various laws, the authority of a variety of jurisdictions, contractually agreed upon dispute resolution mechanisms, and divergent regulatory environments are but a few of the issues that today’s global businesses face as they try to maintain and grow cross cultural opportunities even in the face of possible disputes.

This week while in Vancouver I met hundreds of experienced and bright colleagues from around the world. I look forward to working with many of them to help our clients resolve disputes and build (or rebuild) the global economy.

Legal Profile: Kenn Starr -- Passionate and Personable

Daniel D. Droog — Thu, 16 Sep 2010 01:00:00 -0600

Publisher's Note: From time to time we will publish a legal profile that is based on our personal knowledge and our own experience. There are plenty of places you can go to look up information and statistics on someone. Our desire, however, is to give you our unique take on a noted figure in the legal community and his or her impact on our practice. Tomorrow, at the request of Dr. Carl Zylstra, President of Dordt College, I will represent my undergrad in the processional of institutions marching in regalia at the Inauguration of Kenneth Winston Starr as the 14th President of Baylor University. Here is my take on Kenn Starr.

Dan, this is Kenn. Can you be here tomorrow at 6:00AM? I want your help representing some well-known people who were arrested at the Sudanese Embassy while protesting the modern slave trade. Our co-counsel is Johnnie Cochran. Oh, we need to start at 6:00 because Johnnie has lined up an interview with "Good Morning America" to bring attention to the case.

That was the voicemail left on my phone the first day of my legal career (actually, it was the first day of being a summer associate at the Washington, DC office of Kirkland & Ellis where Judge Starr was a Partner). I worked on the case representing the protestors with some great attorneys at Kirkland and their work along with the attention drawn to the matter by two well-known attorneys, Starr and Cochran, and equally well known clients ("protestors") from the local community, forced into the light the horrible practice of modern day slave trade in Sudan.

At the time I first got to know him, Kenn Starr was a well-respected appellate counsel and had already served as Solicitor General, Judge, and of course Independent Prosecutor. What I learned about Kenn Starr while representing the protestors was that he was passionate and personable and therefore most everyone he interacted with both respected and liked him no matter what their politics.

I have never been in a room with Kenn Starr when he has not been energized about the topic, law, issue or challenge being discussed. He is widely known as a great lecturer -- ask anyone who has taken a class from him on what some would consider a dry topic like Federal Courts. His passion for the law and more specifically the role of lawyers in society is contagious.

Similarly, over the years, I have never crossed paths with Kenn Starr when he did not know the names and characteristics of everyone around him. When you encounter him, he greets you very personally and enthusiastically.

I now know that representing protestors who were drawing attention to slave trade was the kind of unexpected work you can expect from Kenn Starr. It also seems to me that these traits of a good lawyer, passion for the law and a personal touch, helped propel Ken Starr to success in his numerous legal roles, including as Dean of my alma mater Pepperdine School of Law, and these same traits will ultimately be of great benefit to the constituents of Baylor University.

Read Johnnie Cochran's description of representing the protestors alongside Kenn Starr in Cochran's Autobiography A Lawyer's Life.

Read GMA and PBS Newshour story about the protestors and Sudan slave trade.

Learn more and fight the mordern slave trade with International Justuce Mission.

Mad Men & Client Services: Don Draper v. Roger Sterling

Daniel D. Droog — Wed, 08 Sep 2010 15:12:24 -0600

AMC’s hit television series Mad Men about the men and women of a Madison Avenue advertising agency in the 1960’s has a cult like following among lawyers. Numerous law blogs, such as Heather Morse-Milligan's The Legal Watercooler, provide episode recaps and critique. There are even weekly online discussions led by well known lawyer-turned-advertising-historian Walter Dellinger.

Mad Men’s loyal following among lawyers is, inter alia, because it is one of the few shows, movies, books or other works of art creatively insightful about a client services business like the modern law practice but yet not about a law firm or lawyer. Through clever writing, compelling characters and interesting backdrops the Mad Men tell their competing life stories, including their conflicting views of what it means to be a “professional” working for the “client.”

The two leading men, Don Draper and Roger Sterling, represent two different worldviews of client services. When their professional styles are compared and contrasted, we can see that they both have valuable insights to offer about a client services business like the legal practice.

Don Draper – It Is All About His Work

On one side of the worldview spectrum you have Don Draper the creative genius. His thoughts, concepts, and ultimately his ad campaigns are what clients coming clamoring for and are willing to pay for. And he knows it. He is a lone solider focused on his work and not on any relationships. In Episode 3:13 "Shut the Door. Have a Seat..." we hear Roger Sterling tell Draper “You're not good at relationships because you don't value them.”

But Draper makes no apology; rather, he demands that his views trump all others and that his ideas are superior, even to the client’s requests. He has been proven correct with success after success and gained industry acclaim.

The Draper worldview was best evidenced in the first episode of the current season (Episode 4.1: “Public Relations”) when Draper kicked an unwitting client out of the office for rejecting his proposed ad campaign. Even though the agency desperately needed the potential fees associated with the client, Draper booted the account by saying:

Well gentlemen you were wondering what a creative agency looks like? There you have it. Hope you enjoyed looking in the window.

Roger Sterling – It Is All About His Client

On the opposite end of the spectrum is Roger Sterling. Sterling’s motto is “the client is always right and who cares if they are wrong because they pay the bill.” Unlike Draper, Sterling does not seem to care about the work product; rather he is all about the relationship, the business lunch, the networking happy hour, the name dropping. The relationship is so important to him that he sabotaged any chance the new agency could land work for Honda -- because he simply could not look past his relationships with war buddies and enter a relationship with a perceived former enemy, no matter how lucrative the business deal could have been.

But it was in the second episode of the current season 4.2: "Christmas Comes But Once a Year" that we see Sterling’s worldview in full display. Steerling forces the agency to concoct a last minute Christmas party for its largest client, Luck Strike's Lee Garner, Jr. Then Steerling is forced to play Santa. But Sterling does so because after all, he said: "If Lee Garner Jr. wants three wise men flown in from Jerusalem, he gets it."

Draper or Sterling?

Who is right? Who is wrong? Should professional services be about the client or the work? Obviously both. And, whether you follow Draper’s approach or Sterling’s or some of both, we can heed the advice of Sterling’s father who told Roger that:

Being with a client is like being in a marriage. Sometimes you get into it for the wrong reasons, and eventually they hit you in the face.

(Episode 1:10 “Long Weekend”). Although I would not take marriage advice from either of them, I think there is some truth in both Draper's and Sterling's views regarding client services.

Case Update: Beyond Boilerplate -- Affidavits Must Contain the Basis of the 'Personal Knowledge'

Amy Maddux — Mon, 30 Aug 2010 11:00:00 -0600

Publisher's Note: From time to time we will post case updates on cases, rulings or decisions that in our experience are relevant but not adequately discussed elsewhere.

Attorneys often draft--and client representatives are often asked to sign--affidavits attesting to facts in support of motions for summary judgment or other motions. Of course, such affidavits must be based on personal knowledge. But a boilerplate recitation of personal knowledge is not enough. So what is? A case issued last month by the Fourteenth Court of Appeals in Houston, Valenzuela v. State County Mutual Fire Insurance Company, provides a great guide to crafting an affidavit based on personal knowledge.

In Valenzuela, the trial court had granted summary judgment based on an affidavit that provided:

I am currently the Claims Manager for Plaintiff State and County Mutual Fire Insurance Company, I have personal knowledge of the facts stated herein and they are all true and correct to the best of my knowledge.

The affidavit then went on to discuss the facts relied on in support of the motion for summary judgment. The court of appeals reversed the summary judgment, holding that the affidavit was insufficient to show personal knowledge.

In doing so, the court contrasted a previous decision (Requipco, Inc. v. Am-Tex Tank & Equip., Inc., 738 S.W.2d 299 (Tex. App.--Houston [14th Dist.] 1987] writ ref'd n.r.e.) in which it had held that the affiant's job title alone was sufficient to show personal knowledge. In Requipco, the fact that the affiant was currently the plaintiff company's president was enough, alone and without further explanation, to show personal knowledge of the company's current debts in a suit on a sworn account. But in Valenzuela, the fact that the affiant was currently the plaintiff's claim manager did not show whether she was claims manager during the time period at issue or whether and how she was familar with the particular claim at issue.

For the attorney drafting an affidavit, Valenzuelaprovides a wealth of guidance. In general, such an affidavit should show the affiant's personal knowledge by

stating the affiant's job position and
specifically identifying the job duties and responsibilities of that position and
describing how those duties afforded the affiant knowledge of the facts stated therein and
demonstrating the relevant time period and how the affiant acquired personal knowledge during that time period.

If you are the drafting attorney, however, you would be wise to go directly to the court's opinion. The court gives a multitude of specific examples of "typical"--and presumably sufficient--affidavits from other cases. You may find that one of those cases involves facts similar to yours and offers particular language to use.