Wednesday, November 15, 2017

Does Texas Follow the "Sham Affidavit" Doctrine?

By Mike Northrup

The Supreme Court of Texas has never formally adopted the “sham affidavit” doctrine, but it has agreed to review a case in which the primary issue is whether the doctrine should be recognized in Texas.  Thus, it is likely that by the close of the court’s 2018 term, we will know whether this is a valid legal doctrine.

A “sham affidavit” has been described as a circumstance in which an affiant offers sworn testimony that contradicts the affiant’s prior, sworn testimony on a material point and the affiant gives no explanation in the affidavit for the change in the testimony.  Most often this circumstance arises in the summary judgment context when a litigant realizes that the effect of testimony he or she gave in a deposition is likely to lead to a summary judgment against him or her.  The litigant then signs an affidavit that takes the opposite position as to the material fact, hoping that at a minimum, he or she has created an issue of fact that must be decided by a jury.

Federal courts have concluded that a party may not create a jury issue by identifying discrepancies in the party’s own accounting of the facts.  Texas state trial courts have applied the “sham affidavit” doctrine in the process of granting of many summary judgments throughout the state.  There are numerous intermediate appellate court opinions that adopt and apply the “sham affidavit” doctrine, as those courts sustain the lower courts’ summary judgment.

In a Petition for Review filed in the Texas Supreme Court in Lujan v. Navistar, Inc., No. 16-0588, Mr. Lujan argues that the application of the "sham affidavit" doctrine violates Texas Supreme Court holdings in Gaines v. Hamman, 358 S.W.2d 557, 562 (Tex. 1962), and in Randall v. Dallas Power & Light, Co., 752 S.W.2d 4, 5 (Tex. 1988), in which the court held that a deposition does not have controlling effect over an affidavit.  In other words, deposition testimony and affidavit testimony are on equal footing.  Some intermediate state appellate courts have relied upon these opinions in rejecting application of the “sham affidavit” doctrine.

Oral argument in the Lujan case is set for February 6, 2018.  It is likely that the Texas Supreme Court will issue an opinion in the case before it recesses next summer, so we may have an answer by then.  Of course, it is always possible that the parties could settle before that happens.  Also, there is a jurisdictional standing issue that might interfere with the Court’s ability to reach the “sham affidavit” issue.  Nevertheless, this is an opinion that practitioners will want to keep a watch for, particularly as it may impact summary judgment practice.


R. Michael Northrup is a Shareholder and Section Head of the Cowles and Thompson Appellate group.  He practices in both the trial and appellate courts in cases involving personal injury, insurance issues, employment law, commercial disputes, and zoning matters.

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