A sham affidavit is a contradictory affidavit that indicates only that the Affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment. In the practice of commercial law, especially in the midst of a mortgage loan crisis such as we find ourselves in, it is time to remember that contradictory statements are difficult to find in so-called low-doc and no-doc loans.
Mr. Adams writes: Rule 56 does not prescribe how a court should regard the evidentiary value of contradictory affidavits, the sham affidavit doctrine has grown from a long line of court decisions. It provides that the "judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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."
In Perma Research [& Development Co. v. Singer Co], the Second Circuit held that a contradictory affidavit failed to raise a genuine issue of material fact. Perma Research's president, Frank Perrino, had testified extensively in depositions that he could not recall any instance in which the adverse party's employees had behaved fraudulently. However, Perrino submitted an affidavit during summary judgment proceedings stating that these same employees "never had any intention" of performing their contract with Perma Research. The Second Circuit observed that, "[i]f there is any dispute as to the material facts, it is only because of inconsistent statements made by Perrino the deponent and Perrino the affiant," and that, "[i]f 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."
After Perma Research, every federal court of appeals has adopted some form of the sham affidavit doctrine. Some state courts have criticized the sham affidavit doctrine. However, the U. S. Supreme Court has clearly stated that "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." [citations & footnote omitted]