The Four Greatest Myths About Summary Judgment

Abstract

This article examines four recurring questions that have posed perennial problems for courts and commentators struggling with summary judgment practice in federal court: (1) Is hearsay admissible on a motion for summary judgment? (2) May a judge "weigh the evidence" when deciding a summary judgment motion? 3) What evidence, if any, must a judge "believe" when deciding a summary judgment motion? (4) When may a court strike or disregard a "sham" affidavit because it is inconsistent with the prior testimony of the same witness? The article examines the standard but mistaken answer that has been widely accepted for each of these questions, and also identifies the correct answer to each.

Keywords: summary judgment, hearsay, civil procedure, sham affidavit