Can uncorroborated, self-serving testimony stave off summary judgment in federal practice? As with so much in law, the answer is “it depends.” Understanding what it depends on can be the difference between winning and losing summary judgment.
The Seventh Circuit Court of Appeals has said on a number of occasions: “We long ago buried—or at least tried to bury—the misconception that uncorroborated testimony from the non-movant cannot prevent summary judgment because it is ‘self-serving.’” See, e.g., Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). More recently, however, the Fifth Circuit Court of Appeals said: “A party’s uncorroborated self-serving testimony cannot prevent summary judgment, particularly if the overwhelming documentary evidence supports the opposite scenario.” Vinewood Capital LLC v. Dar Al-Maal Al-Islami Trust, 2013 WL 5530539 (5th Cir. Oct. 8, 2013).
A circuit split? Or is something else going on?
The Seventh Circuit explains that most or all party testimony is likely to be “self-serving” and that there is nothing that makes such testimony inadmissible, as long as it is based on personal knowledge or first-hand experience. In connection with such testimony, the Seventh Circuit has long admonished courts to avoid “falling for the trap of weighing conflicting evidence during a summary judgment proceeding.” Payne v. Pauly, 337 F.3d 767, 771 (7th Cir. 2003). Even though the panel in Payne found some of the non-movant’s testimony “fairly outrageous,” it nonetheless reversed summary judgment, finding it improper to weigh the evidence at the summary judgment stage, even where the evidence on one side was otherwise uncorroborated and said to be “self-serving.” Indeed, in a footnote, the Seventh Circuit took the opportunity to advise future litigants against using the label “self-serving” in argument. Ryan v. United States, 657 F.3d 604, 606 n.1 (7th Cir. 2011) (internal quotations omitted).
Yet, the Fifth Circuit’s decision in Vinewood Capital might seem to represent an invitation to weigh the evidence. In Vinewood Capital, the plaintiff, Vinewood, was relying on an alleged oral contract to invest $100 million in real-estate projects of Vinewood’s choosing. The defendants relied on at least three contemporaneous written agreements in support of their motion for summary judgment. The plaintiff relied on a deposition and a declaration of Conrad, one of Vinewood’s principals, in opposition to the motion for summary judgment. The trial court granted the summary judgment motion, finding that the declaration was inconsistent with Conrad’s deposition testimony and that there was no documentary evidence to support the existence of the alleged oral contract terms while the existing documentary evidence (some of which contained merger clauses) actually belied the existence of an oral contract. The Fifth Circuit affirmed the lower court’s grant of summary judgment and stated: “As the district court concluded, Conrad’s self-serving testimony is belied by the parties’ contemporaneous written communications and written agreements and is therefore insufficient to create an issue of fact.”
At first blush, especially in light of the Fifth Circuit’s language, this might seem to reflect a circuit split on the standard for testimony to raise a genuine issue of fact. A better interpretation is that it was not the “self-serving” nature of the testimony that was fatal to Conrad’s claim, but rather the fact that it was legally irrelevant. See Payne, 337 F.3d at 772 (distinguishing a number of older Seventh Circuit cases employing the “self-serving” label in affirming summary judgment).
Conrad’s testimony that there was an oral contract was a mere legal conclusion. His testimony as to the facts necessary to establish the alleged oral contract—even if true—were rendered legally irrelevant, “belied,” by contemporaneous written documents including the release and merger provisions in the subsequent agreements he signed. See Payne, 337 F.3d at 772, citing Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 939 (7th Cir. 1997) (employee’s testimony that he assumed he had a job for life was not sufficient to avoid summary judgment, not because it was “self-serving” but because it was speculative and contrary to his employment agreement).
As the Seventh Circuit explains in Payne, uncorroborated, self-serving testimony may be sufficient to stave off summary judgment even in the face of substantial contrary evidence as long as it is otherwise admissible and legally relevant. The Payne court took time to distinguish a number of Seventh Circuit cases cited by defendants for the “proposition that self-serving, uncorroborated, and conclusory statements in testimony are insufficient to defeat a motion for summary judgment.” As the Payne court explains, it was not “the self-serving nature of the affidavits . . . that sealed their fate in those cases”; rather, those cases involved testimony that lacked foundation or was speculative or conclusory in nature.
To be admissible, testimony, “self-serving” or otherwise, must have proper foundation. It must be based on the witness’s own knowledge and set forth specific facts, not mere conclusions. Reasonable inferences are permissible but only if based on first-hand observation or personal experience, not speculation, rumor, or innuendo. A witness may testify to the witness’s own state of mind, if relevant, but not to another’s state of mind. The self-serving testimony must also be legally relevant. Does it matter if the testimony is true? If not, it cannot raise a genuine issue of material fact.
It is unlikely that the Fifth Circuit intended to create a blanket rule that “uncorroborated, self-serving testimony cannot prevent summary judgment.” Better to avoid labels and stick to the facts—especially in the Seventh Circuit.
