Daniel Webster famously said, “If he would be a great lawyer, he must first consent to be only a great drudge.” A recent decision from Judge C. Darnell Jones of the Eastern District of Pennsylvania serves as a useful reminder of the drudgery required before a lawyer should permit an affidavit to be submitted on behalf of an institutional client. On its face, Jones’ decision in Duchesneau v. Cornell University, et al focuses on whether Cornell University is subject to personal jurisdiction in Pennsylvania as a result of its operation of a regional office in Chester County, Pa. But the real lesson of the opinion lies in its cautions about an affidavit that Cornell submitted in support of its motion to dismiss or transfer the case.
Jones noted at the outset of his opinion that the results of jurisdictional discovery in the case had contradicted an affidavit submitted by Cornell’s treasurer, Patricia Johnson, relating to whether Cornell was registered to do business in Pennsylvania. Although Johnson stated in her affidavit that Cornell was not registered in Pennsylvania, she acknowledged that that statement was in error during a jurisdictional deposition. Based in part on that error, Jones questioned whether Johnson was involved with the preparation of her affidavit and whether she understood the content of it. Jones was dismissive of Cornell’s excuse that Johnson did not know that Cornell was registered to do business in Pennsylvania when she executed her affidavit. Instead, he suggested that Cornell had a burden to research within its corporate files, and possibly through a call to the Pennsylvania secretary of state, whether the university was registered here before it allowed Johnson to execute her affidavit.
Jones’ criticism of Johnson’s affidavit provides important guidance for any attorney or client preparing an affidavit on behalf of an institution. Among other things, although attorneys can continue to draft affidavits in the first instance, they need to ensure that the affiant is involved at some stage of the process and understands what is being stated. In addition, it is probably not enough simply to take the affiant’s word for it in drafting an affidavit. Instead, where someone is going to be offering an affidavit on behalf of a corporation or other institution, it is important to ensure that all relevant files have been checked before the affidavit is submitted. Anything less leaves open the possibility that the person executing the affidavit will be misinformed or just suffer from a lapse in memory. An attorney or client who permits that to happen could well find themselves in an uncomfortable position as they backpedal from an incorrect statement. To avoid that outcome, it is important to engage in the necessary drudgery before submitting an affidavit.
Joshua D. Wolson is a member of the Litigation Department at Dilworth Paxson LLP. He can be reached at (215) 575-7295 or jwolson@dilworthlaw.com. This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter.
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