November 30, 2020 Practice Points

Why the “Sham Affidavit” Doctrine Should Make You a Better Examiner

For our purposes as trial lawyers, the “sham affidavit” doctrine might be subtitled the “deposition preparation” doctrine.

By Andrew J. Felser

A trial court can disregard an affidavit in opposition to summary judgment, if the affidavit creates a “sham” issue of fact that contradicts the affiant’s deposition testimony. The purpose of this doctrine is to preserve the integrity of summary judgments. See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (“[T]he utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.”).

Courts have difficulty applying the doctrine. It forces the judge to walk a tightrope. Its underuse undermines its purpose. Its overuse usurps the jury’s role by making judgments about credibility. It is an abuse of discretion to disregard an affidavit without making specific findings that explain why the affidavit is a sham. Law Co. v. Mohawk Constr. & Supply Co., 577 F.3d 1164 (10th Cir. 2009). Yet the judge must be able to distinguish phony discrepancies from “discrepancies which merely go to the weight of the evidence.” Chanute v. Williams Nat. Gas Co., 743 F. Supp. 1437, 1448 (D. Kan. 1990). See also Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir.1993) (the doctrine is “in tension with the principle that the court is not to make credibility determinations when granting or denying summary judgment”).

This otherwise unwieldy doctrine is held together by the principle that it applies only if the sham quality of an affidavit is clear and demonstrable. See Franks v. Nimmo, 79 F.2d at 1237. It is most readily applied at the extremes of litigation behavior, with somewhat less consistent results elsewhere along the spectrum. For example, in Yeager v. Bowlin, 693 F.3d 1076 (9th Cir. 2012), plaintiff Chuck Yeager submitted an affidavit asserting facts that were plainly responsive to more than 200 clear and unambiguous questions to which his answer in deposition was, “I don’t recall.” While cautioning that the doctrine must be applied with care, the Ninth Circuit had no trouble affirming the rejection of Yeager’s affidavit.

The doctrine is most often used to strike affidavits drafted to avoid summary judgment—affidavits that fabricate issues of fact with no regard for what the witness said in deposition. But affidavits submitted in support of summary judgment might also be scrutinized. Such was the case in Button v. Dakota, Minn. & E. R.R. Corp., 963 F.3d 824 (8th Cir. 2020). Fired during a reduction in force (RIF), Button sued her employer for gender discrimination and violation of the Family and Medical Leave Act. In support of summary judgment, two of the employer’s RIF committee members submitted affidavits, which Button alleged were shams. One affidavit added reasons for Button’s termination that the witness did not mention in deposition. The other added detail that the witness could not recall at deposition. In granting summary judgment, the trial court was not persuaded that the deposition questions were specific and clear enough to render the affidavits manifestly inconsistent. The Eighth Circuit affirmed the court’s refusal to reject the affidavits.

For our purposes as trial lawyers, the “sham affidavit” doctrine might be subtitled the deposition-preparation doctrine. The well-prepared examiner will reduce the opposing party’s ability to fabricate disputes of fact at a later stage. The well-prepared defender will know that “I don’t recall,” if used in excess, are words that the client might later regret.

Andrew J. Felser is special counsel with Glade Voogt Lopez and Smith, P.C. in Denver, Colorado.

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