The Fifth Circuit has resurrected the self-serving affidavit theory. The theory makes no sense. The so-called self-serving affidavit refers to persons who submit testimony in the form of an affidavit. If the affidavit supports the witness, then that testimony carries less weight – or no weight. In Salazar v. Lubbock County Hospital District, No. 20-10322 (5th Cir. 12/7/2020), for example, the court rejected the plaintiff’s testimony, because it was the only evidence disputing Defendant’s evidence. In that case, the supervisor said Ms. Salazar’s job performance was unsatisfactory. Ms. Salazar insisted, no, she was performing just fine in her job. She received raises, after all. The court said that factual dispute did not count, because the only evidence supporting it was Ms. Salazar’s affidavit. And, that just seems like nonsense. One could just as easily say that the supervisor’s testimony should be rejected, because that is the only evidence showing Ms. Salazar was performing badly.

The Fifth Circuit appears to be conflicted about so-called “self-serving affidavits.” In reality, most affidavits contain some measure of self-interest. The supervisor wants to protect his job just as much as the employee. In Heinsohn v. Carabin and Shaw, 832 F.3d 224 (5th 2017), the Fifth Circuit expressly overruled a district court for relying on the self-serving affidavit fallacy. I wrote about the Heinsohn decision here.

In Credeur v. State of Louisiana, 860 F.3d 785 (5th Cir. 2017), the Fifth Circuit did not use the phrase, “self-serving affidavit,” but it was troubled by the lack of corroboration for Ms. Credeur’s testimony. I wrote about the Credeur decision here. Yet, the decision in Tolan v. Cotton, 134 S.Ct. 1861 (2014) specifically overruled the Fifth Circuit because it disregarded a plaintiff’s testimony on the basis that it was “self-serving.” And, of course, the decision in Salazar relies on Fifth Circuit precedent all of which pre-date the decision in Tolan.

 

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