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In the last issue of NWLawyer [“The
Sham Affidavit Rule,” March 2015], Mr.
Adam Starr’s article on the Marshall
Rule made the common mistake of stating that evidence could be stricken for
violating the Marshall Rule. Instead, as
the authorities below make clear, the
Marshall Rule is a rule of the sufficiency
of the evidence on summary judgment
— that is that a party’s statement that
contradicts prior sworn testimony is, by
itself, insufficient to create a genuine issue of material fact.
Despite ongoing efforts of the appellate courts, trial judges continue to
mis-apply the Marshall Rule to exclude
The 2013 Treciak court traced the
doctrinal history of the subsequent
clarifications that the Marshall Rule is a
narrow, sufficiency of evidence rule, not
an admissibility rule (emphasis added):
We previously explained Marshall’s
evidential impact in *408 Schonauer
v. DCR Entertainment, Inc., 79 Wash.
App. 808, 905 P.2d 392 (1995), re-
view denied, 129 Wash.2d 1014, 917
P.2d 575 (1996). In DCR, we noted
that Marshall does not stand for
the proposition “that statements in
a party’s affidavit are inadmissible
(i.e., may not be considered by the
court) if the affidavit is inconsistent
with an earlier deposition and fails
to explain the inconsistency.” DCR,
79 Wash.App. at 817, 905 P.2d 392.
Instead, we determined that the
Marshall court was considering
sufficiency, not admissibility, of the
testimony…The DCR court set forth
the basic evidential premise that on
summary judgment, a later declara-
tion should be considered in light