Commercial Litigation Monitor - Insights & Commentary on Trials Arbitrations Appeals

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.

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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.

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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. 

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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.

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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.

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