A “sham affidavit” has been described as referring to an affidavit in which an affiant offers sworn testimony that contradicts the affiant’s prior, sworn testimony on a material point and the affiant gives no explanation in the affidavit for the change in the testimony.  The scenario of the “sham affidavit” arises with great frequency in Texas summary judgment practice.   Because many district courts and intermediate appellate courts refuse to give credence to such an affidavit, many motions for summary judgment have been granted and upheld.

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The Fifth Circuit Court of Appeals’ opinion in Operaciones Tecnicas Marinas, SAS v. Diversified Marine Services, LLC illustrates the interplay between the requirements of Federal Rule of Civil Procedure 56—the summary judgment rule—and the requirements of Daubert case law that an expert adequately exclude alternative causes.

Diversified Marine Services, LLC (Diversified) was called upon to

Appellate courts in Texas have seen an influx of defamation, business disparagement, and other similar actions since 2011 when the Texas Citizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code §§ 27.001-27.011 (2015), was signed into law.  The TCPA is an anti-SLAPP statute; SLAPP is an acronym for Strategic Lawsuits Against Public Participation, which

The Dallas Court of Appeals recently addressed summary judgment practice in a rare en banc opinion. At issue was whether the defendants’ no-evidence motion for summary judgment adequately challenged the elements of plaintiffs’ claims by listing the elements  and then stating that the plaintiffs had no evidence to support "one or more" of the elements

One should always be careful of falling victim to using and reusing forms because it may come back to bite you.  Many drafters of affidavits start out by having the affiant state something like, "I have personal knowledge of the facts set forth below."  This language by itself may not be sufficient to give anything