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SARAH SANTOS | Litigation
What is the Sham Affidavit Rule?
You have probably heard basic tenets of litigation such as, “Make sure you properly pre- pare your client for deposition” and “Make sure a davits your client signs are accurate and consistent with prior testimony.” Such tenets are important not only to solidify your client’s posi- tion in any litigation, but also to mini- mize the risk of impeachment at evi- dentiary hearings or at trial. Recently, the importance of such preparation and consistency has been emphasized in the context of summary judgments by the Texas Supreme Court’s formal adoption of the “sham a davit rule” in the case of Lujan v. Navistar, Inc., which was decided in April of 2018. Lujan v. Navistar, Inc., 555 S.W.3d 79 (Tex. 2018), reh’g denied (Sept. 28, 2018).
e basic principal of the “sham af- davit rule” is that if your client can- not maintain a consistent story in an a davit used to try to defeat a motion for summary judgment, without ex- plaining the reason for any inconsis- tency, then a trial court can disregard the a davit. Remember, one way in which the non-movant attempts to defeat summary judgment is by rais- ing factual issues with evidence pro- duced by the non-movant, which can include a davit testimony. Although
the court should not weigh the evi- dence or the cred- ibility thereof in a summary judgment, this rule provides a
trial court another tool to determine whether the factual issues raised in an a davit are “genuine” or merely a sham designed to survive summary judgment.
is rule has been recognized by federal courts since 1969 and was rst applied by a Texas appellate court in 1997. However, a er nearly two de- cades, the Texas appellate courts re- mained split on the applicability of the rule. Some courts had applied the rule when considering such incon-
consistency was in sworn interroga- tory answers rather than in a prior deposition.
However, the fact pattern in Lujan, goes beyond inconsistencies in a prior deposition. To understand what this may mean, let’s review the main facts in Lujan.
In Lujan, Albert Lujan purchased a wholesale ower company in San Antonio, Texas, and then purchased various delivery trucks from Navi- star to conduct his business. Lujan
However, after nearly two decades, the Texas appellate courts remained split on the applicability of the rule”
sistencies, while others deemed that con icts between evidence presented a factual issue. Now, a er Lujan, the applicability of the rule is clear, but is the scope of its applicability also as clear?
Generally, in the cases where the sham a davit rule was applied, the fact pattern was as follows: (1) the af- ant executed the a davit a er giv- ing a deposition; (2) there was a clear con ict between the deposition testi- mony and the a davit; (3) the con- ict was on a material point; and (4) the a ant did not explain the reason for the con ict. Some courts refused to apply the rule if the fact pattern de- viated from the above. For example, one appellate court in Texas refused to apply the rule when the prior in-
later transferred all the assets of the company to a corporation he created, and led various tax records and tax returns, which documented the trans- fer. A couple of years a er purchasing the delivery trucks, Lujan sued Navi- star for alleged defects. A er years of litigation, Navistar raised a standing issue, claiming that Lujan had trans- ferred the ownership of the trucks to his corporation and did not have standing to sue Navistar individually. In response, Lujan signed an a davit testifying, among other things, that he never transferred ownership of the trucks to his corporation.
e trial court struck the a davit under the sham a davit rule, and appellate court a rmed, noting that the a davit contradicted: (1) the cor-
Sarah Santos is one of the founding partners at Davis & Santos, P.C. Sarah focuses her practice on banking litigation and other complex commercial litigation covering issues such as duciary disputes, cross-border litigation, internal investigations, and fraud-related investigations and litigation. Sarah represents nancial institutions, businesses in diverse industries, and individuals in both federal and state courts throughout the State of Texas. For more informa- tion, visit www.dslawpc.com or call Sarah at (210) 853-5882.
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