The Competency of the Sham Affidavit as Summary Judgment Proof in Texas.

The United States Court of Appeals for the Fifth Circuit first addressed the sham affidavit theory in Kennett-Murray Corp. v. Bone. This is the doctrine regarding assertions made by affidavit in order to prove summary judgment which are contrary to prior statements given, usually during a deposition. More recently, the Fifth Circuit has used the theory to strike affidavits where it found a sufficient inconsistency existed. This Court has also applied the sham affidavit theory to any prior sworn testimony, not just deposition testimony.

The adoption of this theory overturned the precedent which stated a factual issue existed where a party’s affidavit and deposition testimony conflicted. This led to a split of authority which developed among the intermediate courts of appeals in Texas. Furthermore, the Texas Supreme Court has not yet specifically addressed the viability of the sham affidavit doctrine following the development of the split. Texas courts should adopt the sham affidavit doctrine because it is a useful procedural tool to be employed by trial courts in summary judgment practice.

Proponents of the doctrine argue that if the affidavit differs at all, the affidavit must be disregarded. Opponents of the doctrine argue the doctrine has not been authorized by the Texas Supreme Court. Yet, the opposition fails to recognize contradicting statements alone do not create a sham affidavit; it is a matter of degree. Policy reasons support adoption of the sham affidavit rule, for it makes little sense to have a system in which one party can avoid summary judgment by contradicting statements without explanation.