Affidavits

A “sham affidavit” is an affidavit sworn or affirmed in an attempt to defeat a motion for summary judgment even though the affiant has given prior inconsistent testimony.

The “sham affidavit rule” prevents a party who has been examined on deposition from raising an issue of fact simply by submitting an affidavit contradicting their own prior testimony.

However the rule is applied by judges with caution because it is in tension with the principle that the court should not to make credibility determinations when granting or denying summary judgment.

In addition, the non-moving party is not prevented from elaborating upon, explaining, or clarifying prior testimony elicited by opposing counsel on deposition.

Minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit.

We explain sham affidavits, summary judgments and the sham affidavit rule or “sham affidavit doctrine” further in this post.

A “sham” affidavit

Contrary to what its name might suggest, a sham affidavit is a “real” affidavit that is properly made just like any other affidavit.

That is, it is sworn or affirmed properly, is in the right form and meets all the tests for the definition of an affidavit.

The “sham” part comes from the reason that the affidavit is sworn and how its contents are sought to be used to defeat a summary judgment.

Summary judgments

A summary judgment is a judgment that a court enters in favour of one party (either plaintiff or defendant) without a full trial (ie “summarily”).

A summary judgment is a powerful weapon to litigators because it is a quick and inexpensive route to winning the case.

However because it would be unfair to deny a party their ordinary right to trial, summary judgment is only available in limited circumstances.

Rule 56 of the Federal Rules of Civil Procedure provides that a party may move for summary judgment on a claim or defense—or part of a claim or defense—where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

In practise, a party defending a summary judgment application can defeat it by putting forward affidavit evidence of a genuine dispute as to a material fact.

It is this principle that has given rise to sham affidavits and the doctrine designed to prevent them being effective. This is known as the “sham affidavit rule“.

Affidavit evidence is taken to be true on summary judgment

Parties defending summary judgment applications regularly put forward affidavits to give sworn evidence that there is a genuine dispute about a material fact in the proceedings.

If the judge accepts there is such a genuine dispute then the application for summary judgment will fail.

The difficulty for the moving party is that, on a summary judgment application, the court does not consider the plausibility of affidavit evidence or the credibility of the affiant.

These considerations ordinarily only take place in a full trial which is exactly the process that summary judgment is intended to avoid.

This means that a party defending a summary judgment can defeat an application by putting on very weak and implausible evidence.

Where this evidence contradicts earlier sworn evidence, the affidavit in which it is given will often be termed a sham affidavit.

 Sham affidavit rule

The sham affidavit rule allows the court to disregard affidavit evidence sworn to defeat a summary judgment application if the affidavit contradicts the affiant’s earlier story and they do not explain the inconsistency.

As an example, imagine an affiant has given evidence on deposition saying that they drove through a red light.

If they were later to swear an affidavit saying that the light was green and do not provide a reason for why they have changed their story, then the court could disregard the affidavit as a sham.

The affidavit would not prevent summary judgment being entered provided the moving party otherwise proved its case.

If the affiant was to explain why they had changed their story then the affidavit would not be caught by the sham affidavit rule.

The affiant’s credibility would be a matter for a full trial because they had changed their story. Summary judgment would not be an appropriate remedy.

The sham affidavit rule is intended to redress the imbalance between the moving and non-moving parties. However there are some differences of judicial opinion about how widely the sham affidavit doctrine should be cast.

For example, whether it should apply only where the prior testimony was in a deposition, or whether it should apply to earlier affidavits, answers to interrogatories or to statements made under penalty of perjury.

The bottom line is that the sham affidavit rule is well established (it dates back to at least the 1960s). It is a tool that the courts have developed and will continue to develop in order to do justice between the parties as quickly and inexpensively as possible.

Lawyers are often accused of many things, but amongst the worst might be speaking in “legalese”.

This sounds odd because you might naturally think that a lawyer should speak in something called legalese. But the phrase is never meant as a compliment.

A definition of legalese

To understand why legalese is a bad thing, it is helpful to start with a working definition of legalese. There are lots of dictionary meanings for legalese but the one I have come up with is:

Legalese (n): language used in legal documents that is unnecessarily difficult to understand or verbose.

This is a broad definition of legalese. It doesn’t say that the defining characteristic of legalese is that it is difficult for ordinary people to understand (ie non legally-trained people).

This is because trouble with any deviation from plain language is that it is more difficult than necessary for everyone to understand – and that includes lawyers!

Lawyers and judges have been fierce critics of legalese for many years.

A famous example can be found in LaMore v. Ives, 977 F.2d 713, 716 (1st Cir.1992), where the judge memorably described a Medicaid statutory provision (42 U.S.C. § 1396a(a)(17)) as “a virtually impenetrable thicket of legalese and gobbledygook“.

Examples of legalese

Some classic examples of legalese which should be avoided in affidavit are:

• using Latin words instead of English
• using old fashioned or complicated words where simple ones would do
• using long, complicated sentences with multiple subclauses, lists or exceptions
• using legal (or quasi-legal) language where it is not necessary to do so

As you might have gathered by now, the best practice is to avoid any legalese in an affidavit.

Affidavits should be clear, as short as possible (meaning they have no irrelevant facts included) and use the words of the deponent. If you stick to those rules then you will never use legalese in an affidavit.

When drafting affidavits, some lawyers still add the phrase “Further Affiant Sayeth Naught” at the end of the text of the affidavit just before the jurat (where the affiant signs).

Literally translated, “Further Affiant Sayeth Naught” means “the affiant has nothing further to say.”

Legal writers universally agree that the phrase is unnecessary , archaic and should not be added to the end of affidavits. It is perfectly clear that the affiant has nothing further to say by the end of their affidavit!

Yet some lawyers still persist in using this phrase or a version of it.

Variations on the same theme that have been spotted in affidavits include adding the word “your”, varying the spelling of “sayeth” or changing “naught” to “not”, for example: “Further your Affiant saith not” or “Further your Affiant sayeth not”.

Perhaps the gold medal goes to “Further than this your affiant sayeth not”, which stretches the phrase from four unnecessary words to seven.

In this post we explain why you should banish these four words from your affidavit drafting forever.

Why “Further Affiant Sayeth Naught” should not be used in affidavits

There is no legal or other reason to use Futher Affiant Sayeth Naught in an affidavit.

The phrase is cringe-inducing legalese and it makes no sense to use it. No court decisions support the use of “Further Affiant Sayeth Naught.”

It is just one of those terrible things that lawyers add to sound sophisticated, which almost always backfire.

Perhaps worst of all, the phrase ascribes to the affiant words that they would not themselves use, a practise which is against good affidavit drafting principles.

As for the history of the phrase, “further” and “affiant” have their natural meanings. Further meaning “more” and “affiant” meaning the person who swears or affirms the affidavit.

“Sayeth” is simply the verb “say” with the suffix -eth added to it (the use of the -eth suffix was popular in some parts of England at some time, but died out over 200 years ago).

As for “naught,” it is a pre-900 English word which is still occasionally used to mean “nothing.”

Further Affiant Sayeth Naught is peculiar to the USA

Despite the history of some words in the phrase, you will never see “Further Affiant Sayeth Naught” in an English affidavit (or anything equivalent, as the word “affiant” is replaced by deponent outside the USA).

In fact the only place we have seen it outside the US is in the Phillipines, where occasionally – very occasionally – it makes an appearance. We will spare you the tagalog translation!

Fortunately the “Further Affiant Sayeth Naught” habit is finally on the verge of extinction in America. However the phrase is still occasionally seen in affidavits and still can be found in precedents (including online forms which claim they are up to date)!

In conclusion, if you’re thinking of ending an affidavit with “Further Affiant Sayeth Naught” the answer is simple: there is no need to add this phrase at the end of affidavits.

So please just don’t.