Beware of using "form" language in an affidavit to establish the affiant’s personal knowledge of the facts . A statement such as "I have personal knowledge of the facts in this affidavit," may not be adequate. And the danger of getting it wrong is that the affidavit is legally insufficient.
A good discussion of how far an affiant must go to establish personal knowledge is found in the Houston Fourteenth Court of Appeals‘ opinion in Valenzuela v. State & County Mutual Fire Insurance Co. The court of appeals held that a "mere recitation that the affidavit is based on personal knowledge is inadequate if the affidavit does not positively show a basis for the knowledge." "The affidavit must explain how the affiant has personal knowledge." (emphasis added).
The court goes on to point out that in some cases an affiant’s position or job responsibilities can qualify him to have personal knowledge and show how he learned of the facts. However, it may also be important to show that the affiant was employed during the particular time in question in order to show how the affiant has personal knowledge. The affiant in Valenzuela simply stated that she was currently a claims manager for State and County Mutual Fire Insurance Company and that she had personal knowledge of the facts. The court of appeals held that this affidavit failed to establish personal knowledge because the affiant did not state that she was the claims manager during the relevant time period, how her job duties as claims manager caused her to have knowledge of the claim in question, or how she was familiar with the particular claim.
Practice tip : Next time you are drafting an affidavit, consider what questions you would ask the affiant on voir dire to establish lack of personal knowledge if you had the affiant on the stand at trial.
The court distinguished another, prior case in which the affiant stated that he was the company president and proceeded to discuss a debt in a claim on a sworn account. The court pointed out that an officer of the company would logically have knowledge of the company’s debts. The court’s opinion in Valenzuela may be found here.