The sham affidavit rule

Federal Court Affidavits


On February 18, 2019, the United States Court of Appeals for the Fifth Circuit handed down its decision in Winzer v. Kaufman County, et al. One of the issues the Court addressed is the sham affidavit rule.

How are affidavits used in federal court?

Affidavits can be used in any number of circumstances. They are most commonly used, however, in connection with a defendant’s motion for summary judgment.

Under Rule 56 of the Federal Rules of Civil Procedure, a defendant can avoid a jury trial by filing a motion and demonstrating two things:

First, that none of the material facts are in dispute, and

Second, that the defendant is entitled to judgment as a matter of law.

Disputes about material facts

As noted, a defendant is not entitled to summary judgment if the material facts are in dispute. If the facts are disputed, the dispute must be resolved by a jury.

Here is one example: Assume that a plaintiff was in an automobile accident and sued the defendant, claiming that the defendant negligently caused the accident.

Yet, the defendant and all of the other witnesses sign affidavits stating that the defendant was operating her automobile properly. The plaintiff, however, states that he is not sure what happened because he never saw the defendant.

In that type of situation, all of the evidence presented by the defendant proves that she was operating her automobile properly. And, the plaintiff does not have any evidence to contradict that. Thus, the material facts are not in dispute. The defendant is entitled to summary judgment.

Creating issues of fact by counter-affidavit.

Continuing with our scenario, assume that instead of saying he did not see the defendant’s car, the plaintiff signs an affidavit stating that he observed the defendant speeding and crossing over the center line of the road to strike the plaintiff’s car.

In that case, the defendant and her witnesses are telling the court one thing, and the plaintiff is telling the court another thing.

By filing an affidavit stating what happened, the plaintiff has created a dispute as to a material fact (that is, whether the defendant was driving negligently). Under Rule 56, the court cannot decide which version of the facts is correct. That is a decision that must be made by jury.

The sham affidavit rule

This rule was developed by the federal courts to deal with plaintiffs who try to create an issue of fact by filing an affidavit that contradicts something the plaintiff previously stated.

Again, returning to our scenario, assume that the plaintiff previously gave a sworn statement in which he said he never saw the defendant’s automobile. So, the defendant moves for summary judgment and submits affidavits from herself and her witnesses stating that she was not driving negligently.

Then, assume that the plaintiff files an affidavit and, for the first time, claims that he did see the defendant driving negligently. In that situation, the plaintiff is filing an affidavit that contradicts his prior statement, and he is doing so simply for the purpose of trying to get past summary judgment and take the case to a jury.

That is where the sham affidavit rule comes in. As the Fifth Circuit stated in Winzer, “a district court may refuse to consider statements made in an affidavit that are ‘so markedly inconsistent’ with a prior statement as to “constitute an obvious sham.’ ”

The rule applies only when an affidavit “directly contradicts” prior statements. If the affidavit is not “inherently inconsistent” with a prior statement, the rule does not apply.

The sham affidavit rule is also inapplicable when the affidavit simply supplements, rather than contradicts, an earlier statement.

In Winzer, the defendants contended the affidavit contradicted statements made in the plaintiff’s original complaint. The Fifth Circuit found it significant that the original complaint was a five sentence, hand-written statement placed into the “limited space of a form-petition for pro se litigants.” The Court thought that the plaintiff should not be punished for not putting more detail into the complaint.

Drafting tip

As a drafting tip, lawyers should consider this: Rule 8 only requires a “short plain statement of the claim.”

More detail put into a Complaint, however, gives the defense the opportunity to argue that subsequent affidavits are “shams” because they address matters that are not contained in the Complaint.

Yet, most lawyers know that even after they file a Complaint, they continue to learn more about the underlying facts as the case goes on. A good mixture of specific, known facts and general allegations may be the best approach.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110