Summary Judgment and ‘Self-Serving’ or ‘Inadmissible’ Evidence: Lessons From Appellate Practice

Quick Hits

• Objecting that a plaintiff’s summary judgment evidence is “self-serving” is not a valid evidentiary objection and can provide grounds for reversal on appeal.
• Evidence at summary judgment need not be in admissible form; the correct objection is that the material cannot be presented in any admissible form at trial.
• Defense lawyers who make incorrect evidentiary objections at summary judgment risk losing credibility, wasting briefing space, and having favorable rulings reversed on appeal.

There is nothing wrong with “self-serving” evidence. What other kind of evidence would a party submit? Yet, lawyers regularly file briefs (and courts occasionally issue sloppily written opinions) that attack a plaintiff’s summary judgment evidence as “self-serving,” as if that makes it suspect or inappropriate. The fact that a witness’s testimony is self-serving or uncorroborated may be grounds for questioning the witness’s credibility, but credibility is for trial and not for summary judgment. So, a “self-serving” objection is not usually a worthwhile argument at summary judgment. Worse, winning summary judgment because the trial court disregarded evidence as “self-serving” hands the plaintiff a basis for reversal.

Instead of objecting that evidence is “self-serving,” trial lawyers may instead want to consider one or more of the following arguments: (1) the affidavit is not made on personal knowledge or first-hand experience; (2) the affidavit presents only conclusions or opinions; (3) the affidavit is too vague to genuinely dispute any facts; and (4) the fact presented, or the genuine factual dispute created by the affidavit, is not material to the issue. Note, however, that there may be extreme situations in which it is appropriate to object that an opposing witness’s version is so demonstrably false (e.g., it contradicts an unaltered video) that no reasonable jury could believe it.

A second potential summary judgment mistake is objecting that material is “inadmissible.” In fact, under Fed. R. Civ. P. 56(c)(2), evidence need not be in admissible form to use it at summary judgment. The proper objection is that “the material … cannot be presented in a form that would be admissible in evidence.” The point to be made to the trial court in the defendant’s summary judgment motion (or on reply) is not that the plaintiff’s material is currently not admissible, but that it is currently not admissible and cannot be made admissible. Similarly, the Fed. R. Civ. P. 56(c)(2) advisory committee stated in a note to the 2010 amendment that the proponent of the material need show only that the material “is admissible as presented or to explain the admissible form that is anticipated.”

If the other side’s proffered evidence can easily be made admissible—e.g., by providing a witness at trial to provide in-court testimony, authentication, or to lay a foundation—the objection may not be worthwhile. Making the wrong objection not only lessens counsel’s credibility and wastes space, it also risks reversal on appeal. If the correct objection to evidence is available, make that one. If the material at issue could easily be put in admissible form at trial, and especially if the means to do so is apparent, consider whether the objection is worth the risks.

Ogletree Deakins’ Appellate Practice Group will continue to monitor developments and will post updates on the Employment Law blog as additional information becomes available.

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