Summary judgment depends not just on strong legal arguments, but on a clear and consistent record.

Summary judgment: two words that can make even the most enthusiastic brief-writer groan. For many litigators, the term signals not just a procedural milestone but the onset of a demanding writing process. Imagine having to write your way out of quicksand with strict rules and clear deadlines. The likelihood of success depends not only on the strength of your legal arguments but also on having a clear and consistent record. So what happens when you realize that your client has contradicted their own statements or when the testimony you counted on – the clear and powerful statements you heard during a deposition – doesn’t convert well into the written word and now reads back as confusing or ambiguous in the transcript?

This article examines the practical and tactical benefits of summary judgment motions, addresses jurisdictional differences in how courts manage a party’s self-contradictory statements, and offers guidance for avoiding inconsistent testimony that may otherwise defeat a well-founded motion or response. It will also offer possible ways to correct the record for the inevitable times when inconsistencies do arise.

Using Summary Judgment Strategically to Reshape a Case

Summary judgment motions are most often appreciated for their potential to reduce case expenses and, ideally, avoid the substantial costs of trial. Their value exceeds just the economic advantage, though, as even a loss can be beneficial in the long run.

Motions for summary judgment can take power away from the notorious unpredictability of juries and place the responsibility on an even-handed judge. Though it depends on the type of case at hand, the ability to have a judge review complex cases with technical legal questions means a decision is (hopefully) more likely to be made by an unbiased, knowledgeable and experienced individual. Jurors may be sympathetic to relatable and emotional fact patterns that can significantly influence how they consider the law. When addressing causation issues, a plaintiff may want to take advantage of that “human factor” whereas a defendant would likely prefer to have a judge assess the merits of the legal arguments.

Summary judgment can also provide valuable clarity as to the issues and factual disputes going into trial. Parties get a preview of their opponent’s evidence and arguments ahead of trial. In state courts with pleading requirements that are more lenient than those at the federal level, having a comprehensive understanding of the specific theories and allegations at issue helps in preparing for trial. If an early motion for summary judgment is filed, the information received may reveal potential areas to explore during discovery. And even a summary judgment loss on one or two issues may provide some benefit in the form of reducing the overall issues, thereby reducing trial costs and allowing the parties to focus their efforts on stronger arguments.

Finally, obtaining summary judgment on an issue or surviving the opposing party’s motion can significantly affect settlement value. For example, in employer-friendly jurisdictions, a plaintiff who can present evidence sufficient to overcome summary judgment on discrimination claims shows the strength of their case and can increase the value of their claims. For that reason, the mere filing of a persuasive brief can add leverage or shift power between parties, creating an environment for settlement discussions that take into consideration the case’s merits, as well as the parties’ negotiating strategies.

It is worth noting that while a motion for summary judgment is more economically efficient than trial, preparing and filing such a motion is not inexpensive. The higher cost of summary judgment serves as a self-regulating mechanism, deterring those parties with questionable positions from seeking that relief. The result is that summary judgment motions are generally reserved for cases where the arguments are strong enough to warrant the expense.

Jurisdiction Determines Which Statement Counts

It is well-established that at summary judgment, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Federal and state courts have long recognized the principle that at summary judgment, facts and all inferences drawn therefrom must be viewed by the court in the light most favorable to the nonmovant. Summary judgment is appropriate where “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

These basic principles leave room, however, for opposing parties to survive summary judgment by manufacturing a sham issue of material fact via an affidavit that contradicts their prior deposition testimony.

“Sham Affidavit” Rule

Courts across the United States have adopted some version of the “sham affidavit” rule, which precludes a party from submitting an affidavit to create a sham issue. These jurisdictions generally allow their courts to disregard the affidavit or declaration unless the affiant can provide a sufficient explanation for the contradiction.

Application in Federal Courts

Federal courts use varying analytical frameworks to address the sham affidavit rule. This rule is limited to only those rare situations where “a party has given clear answers to unambiguous questions [at deposition] which negate the existence of any genuine issue of material fact” and then tries to manufacture an issue of fact “with an affidavit that merely contradicts, without explanation, previously given clear testimony.”

The doctrine is believed to have originated in the Second Circuit Court of Appeals in Perma Research & Development Co. v. Singer Co. In that case, the president of a company first testified that he could not remember any instances of the defendant’s fraudulent intent to enter into a contract with no intention of performing on it. After the defendant moved for summary judgment, the president submitted an affidavit in which he alleged that a representative of the defendant told him that it had no intent to perform on the contract. The court reasoned that allowing such contradictions would undermine summary judgment by permitting “sham issues of fact.” “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”

The Tenth Circuit built upon the sham affidavit rule and developed a three-part test to determine whether an affidavit creates a sham issue: “(1) the affiant was cross-examined during his earlier testimony; (2) the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence; and (3) the earlier testimony reflects confusion which the affidavit attempts to explain.”

The Seventh Circuit has a similar analysis, recognizing three exceptions to the sham affidavit rule. First, courts allow affidavits to contradict prior testimony if there is newly discovered evidence. Second, courts allow affidavits contradicting prior testimony if “the statement is demonstrably mistaken.” Finally, courts allow the submission of supplemental affidavits clarifying ambiguous or confusing deposition testimony.

Application in State Courts

A number of state supreme courts have also adopted the sham affidavit rule. In adopting the rule, the Supreme Courts of Texas and Nevada, like the federal courts, reasoned that the rule applies because it is not an exception to the general principle that the trial court should not weigh the evidence or make credibility determinations. Rather, the rule “exists in service of the procedural rule’s textual requirement that trial courts allow only genuine fact issues to survive summary judgment.”

Though the sham affidavit rule is generally based on affidavits submitted at summary judgment to contradict statements made during a deposition, a few states, like Georgia, have expanded the rule to include any form of sworn testimony. Because Georgia courts have long recognized that at summary judgment, plaintiffs can succumb to the “temptations to perjury” and “by the simple device of filing conflicting affidavits” may attempt get the motion denied, the Georgia Supreme Court developed the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc.

In Prophecy, the Supreme Court of Georgia established a three-part analytical framework. First, the judge reviews the testimony and determines whether contradictions exist. If the statements are contradictory, the burden then shifts to the party-witness to provide a reasonable excuse for the contradiction. If the party-witness fails to meet this burden, the Prophecy rule requires that the judge eliminate the portions of testimony that are favorable to the party-witness and/or were left unexplained and then decide whether the remaining evidence is sufficient to survive summary judgment. A reasonable explanation, on the other hand, permits the favorable portion of the contradictory testimony to remain as evidence to be considered by the factfinder. It does not eliminate the unfavorable testimony.

Other state courts, however, take a completely different approach. Tennessee courts, for instance, treat inconsistent statements as having no value. Unless the party can provide a reasonable expectation or offer other evidence to support one of the positions, the statements “cancel each other out.” State courts in Vermont and Alaska do not apply the sham affidavit rule at all. Inconsistent statements “merely create an issue of fact as to credibility.” Self-contradictory statements and equivocations are not considered evidence “reasonably tending to dispute or contradict authentic documentation.” Thus, summary judgment is improper, and the contradictions are sent to the factfinder to be weighed against other evidence and credibility determinations.

Prepare for Summary Judgment with the Sham Affidavit Rule in Mind

With so much at stake at summary judgment and the significant role that sworn statements play in litigation, parties should be aware of their court’s approach to the sham affidavit rule when preparing clients for deposition, reviewing evidence, and determining whether to move for summary judgment. There are four key phases during which attorneys can protect against Prophecy pitfalls.

(1) Pre-deposition: Prepare, Prepare, Prepare

Deposition preparation should be standard practice for attorneys, and not just because it helps clients feel less nervous. A party’s words become evidence in depositions – so even without the threat of the variations of the sham affidavit rules looming, clients should receive guidance. Clear and consistent testimony can improve the course of a case, just as thoughtless, aimless or contradictory testimony can cause a case to unravel.

Strong deposition testimony helps establish the party’s credibility and can communicate a clear narrative to the opposing party, despite the natural pull to remember events in a way that benefits the present case. Emphasize that the best answers are honest and clear, and direct them to steer clear of absolutes, speculation, and hypotheticals. Remind clients that deposition testimony should refer only to what they know, not what they assume. Make clear that “I don’t know” is a perfectly acceptable response, and tell them to be clear on what the question is prior to responding. There is no shame in asking for the question to be rephrased or for a specific word to be defined.

Review with the client their prior statements, verified discovery responses, pleadings and affidavits. Reserve a portion of time allotted for preparation for mock questions. Reviewing the facts with the client beforehand will help refresh their memory as to the order of events and actors and can help highlight facts that should be mentioned or problem areas to try to avoid. The client can work on their tone and pace and can get comfortable with silence.

If inconsistent statements already exist, a deposition is an opportunity to clean up the record. Reasonable explanations can reconcile inconsistent statements. Communicating with the client and preparing them for potential obstacles or opportunities can be more cost-effective than a summary judgment motion. Putting the time and effort into preparing defendants for their depositions could be the difference between a win, a minimal loss and a runaway verdict.

(2) At Deposition: Stay Vigilant

During the deposition, the attorney should pay close attention to the questions and their client’s responses. Object to vague or misleading questions. A client is often told to listen to their attorney’s objections as they may provide a warning for a potential pitfall. Attorneys would likewise benefit from listening to their client’s testimony for the same reason, making sure to object when the client appears to be confused and ensuring the client can complete their thought or explanation. And when the client shows signs of fatigue, call for a recess and have them move around.

Finally, if the client makes contradicting statements based on confusion or misunderstanding, use the ability to cross-examine them to provide an opportunity to explain away any contradiction. Keep this as limited as possible, however, as the goal is to dig the client out of the hole and not deeper into it.

(3) After Deposition: Review All Sworn Statements for Contradictions

Despite best efforts, even the strongest party-witness can contradict their prior statements during a deposition. Attorneys can manage client self-contradictions in four steps: Review the record, identify problem statements, provide a reasonable explanation and correct the record.

The first step is the most time-consuming, requiring a full analysis of all statements made under oath. Most often the contradiction occurs during a deposition. Depositions can be long and exhausting. The pressure to avoid saying the wrong thing can be intense, and when questions are phrased poorly or are intended to draw a specific response, the most prepared client can still become confused.

The easiest way to approach the review is to break down the elements of your case, find the facts that would support or deny those elements, and ensure that your client’s statements are consistent as to those facts. The rule applies to material facts, so pay particular attention to statements that go to timelines, actors and witnesses. And note that the rule is not limited to negligence cases. For example, with contract cases, sworn statements that pertain to facts your client relied on when entering a contract could be material.

In reviewing, make sure that statements are actually contradictory. One definition states that a statement is contradictory “if one part of the testimony asserts or expresses the opposite of another part of the testimony.”

Whether a contradiction was intentional or not may be irrelevant. For instance, the Prophecy court expressly stated that the error in the original statement may not have been intentional, but correction of the mistake requires intentional contradiction by explanation. In this statement, the court also addressed the occasion where a party may have forgotten his original testimony and tailored his second statement to meet the needs of the case. “He may have no intent to contradict the first statement, but surely the law will construe this contradiction against him.”

When a potential contradiction appears and there is no room to argue that the statements don’t contradict each other, figure out the cause. Discuss it with the client and identify what caused them to misspeak. The only way to correct inconsistent testimony is to provide a reasonable excuse for why it occurred in the first place. To be reasonable, the explanation must show that “an honest mistake has been made in the first statement.”

(4) If Necessary, Correct the Record Using an Errata Sheet or Explanatory Affidavit

Finally, make sure to correct the record. If the contradiction is detected soon after a deposition, submit an errata sheet. Importantly, while an errata sheet will put the corrected statement on the record, it does not remove the original statement from the record, and therefore the need to explain the contradiction may still exist. In doing so, the attorney should check if the jurisdiction might require that the deposition be reopened if changes are deemed “substantive.” For instance, citing Prophecy, the Georgia Court of Appeals has held that corrections may be so substantive that they make the original deposition “useless,” such that reopening the deposition might be necessary. This would then require that the client be prepared to provide an explanation for the correction through testimony.

If the window to submit an errata sheet has passed or the contradiction appears while responding to a motion for summary judgment, draw up an affidavit with the correct information, provide the reasonable explanation and attach any evidence you may have to support the explanation.

Conclusion

Summary judgment provides a key opportunity for ending a case economically or establishing facts and narrowing issues before trial. In moving cases toward summary judgment, attorneys should be aware that uncorrected contradictory statements can carry the harsh penalty of exclusion on summary judgment. By anticipating contradictions, addressing them head-on and guiding clients through deposition with care, attorneys can transform summary judgment from a procedural risk into a tactical advantage. Summary judgment motions may be demanding – but for those who approach it strategically, it can reshape the case long before a jury is ever seated.