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Evidence: Sham Affidavit Doctrine

Posted by Ted A. Schmidt | Sep 04, 2020 | 0 Comments

Evidence: Sham Affidavit Doctrine

Perdue v. La Rue, No. 1 CA-CV 19-0657 (App. Div. I, September 3, 2020) (J. Howe) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CV%2019-0657%20Perdue%20v.%20La%20Rue.pdf

SHAM AFFIDAVIT DOCTRINE REQUIRES COURT TO DISREGARD AFFIDAVIT FILED IN CONTRADICTION TO DEPOSITION TESTIMONY IN DIFFERENT LEGAL PROCEEDING WHEN DECIDING MOTION FOR SUMMARY JUDGMENT

In this real estate dispute the trial court granted summary judgment against appellant finding that appellant's affidavit was in direct contradiction to her deposition testimony given in an earlier divorce proceeding and therefore to be disregarded. The Arizona Court of Appeals affirms.

The sham affidavit doctrine holds that a party cannot defeat a motion for summary judgement by submitting an affidavit that contradicts prior sworn testimony.  The doctrine only applies when there is clear contradiction. It does not apply if the “affiant was confused at the deposition and the affidavit helps explain the confusion, or if the affiant lacked access to material facts and the affidavit sets forth the newly discovered evidence.”

There is no reason to limit the doctrine to sworn testimony in the same litigation where summary judgment is sought. An affidavit that is directly contradicted by the affiant's sworn testimony in any other action must be disregarded by the court in considering a motion for summary judgment.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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