Winning Summary Judgment and Then Losing on Appeal: The Evidentiary Objection Trap.
Employer-side employment litigation teams put significant resources into winning summary judgment. The evidentiary objections made at the trial court level are a critical part of that work. Two objection patterns – objecting that the plaintiff’s evidence is “self-serving” and objecting that evidence is “inadmissible” – are traps that can convert a trial court win into an appellate loss.
The “self-serving” objection is the more common mistake. Plaintiff’s counsel submits a declaration from the employee describing what happened. Defense counsel objects that the declaration is self-serving. The trial court sustains the objection and grants summary judgment. The plaintiff appeals. The appellate court reverses.
The reason: “self-serving” is not a recognized evidentiary objection under California law or federal law. A declaration from a party is, by definition, likely to be favorable to that party. What other kind would it be? The fact that testimony is self-serving or uncorroborated may be relevant to credibility, but credibility is for the jury at trial, not for the court at summary judgment. Sustained objections based on “self-serving” characterizations hand the plaintiff a ready-made reversal argument on appeal.
The admissibility objection is more technical but equally dangerous. Under Fed. R. Civ. P. 56(c)(2) – and under California Code of Civil Procedure § 437c in state court – evidence need not be in admissible form to support or oppose summary judgment. The correct objection is not that the material is currently inadmissible, but that the material cannot be presented in any admissible form at trial. That is a harder standard to meet. If the evidence could be placed in admissible form at trial – through live testimony, authentication, or a proper foundation – the objection is likely to fail, and a sustained ruling at the trial court creates appellate risk.
The practical test before making either objection: can the objection be sustained on appeal, not just at the trial court level? For “self-serving,” the answer is almost always no. For inadmissibility, the question is whether the evidence could be placed in admissible form by the time of trial. If the means to do so are apparent, the objection may cost more than it gains.
When the correct evidentiary objection is available, make that one. The alternatives to “self-serving” that do withstand appellate scrutiny include lack of personal knowledge, the declaration presents only conclusions without factual basis, the declaration is too vague to genuinely dispute any material fact, or the factual dispute created by the declaration is not material to the issues before the court. These objections survive appeal. “Self-serving” does not.
The stakes in employment summary judgment are high. The defense bar has worked the motion. Making an incorrect objection that opens the door to reversal undoes that work and creates a second round of litigation at the appellate level. The evidentiary objection analysis is worth the same rigor as the motion itself.
If you want to know where your business stands, contact Michael Trust Law, APC for a no-charge initial consultation. The facts determine what needs to be addressed – and how much of a conversation that takes.
This post shares general information based on common patterns I see in California workplaces. It is not legal advice, does not create an attorney-client relationship, and outcomes depend on specific facts – no lawyer can guarantee a result. Past results do not guarantee or predict future outcomes. AI may have been used to create this post. All content reviewed by a CA attorney before publication.