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  • Summary Judgment and Sham Affidavits: Protecting Your Motion from Contradictory Testimony

    Summary Judgment and Sham Affidavits: Protecting Your Motion from Contradictory Testimony

    Summary Judgment and Sham Affidavits: Protecting Your Motion from Contradictory Testimony

    By Cat Gavrilidis

    Summary judgment depends not just on strong legal arguments, but on a clear and consistent record.

    Summary judgment: two words that can make even the most enthusiastic brief-writer groan. For many litigators, the term signals not just a procedural milestone but the onset of a demanding writing process. Imagine having to write your way out of quicksand with strict rules and clear deadlines. The likelihood of success depends not only on the strength of your legal arguments but also on having a clear and consistent record. So what happens when you realize that your client has contradicted their own statements or when the testimony you counted on – the clear and powerful statements you heard during a deposition – doesn’t convert well into the written word and now reads back as confusing or ambiguous in the transcript?

    This article examines the practical and tactical benefits of summary judgment motions, addresses jurisdictional differences in how courts manage a party’s self-contradictory statements, and offers guidance for avoiding inconsistent testimony that may otherwise defeat a well-founded motion or response. It will also offer possible ways to correct the record for the inevitable times when inconsistencies do arise.

    Using Summary Judgment Strategically to Reshape a Case

    Summary judgment motions are most often appreciated for their potential to reduce case expenses and, ideally, avoid the substantial costs of trial. Their value exceeds just the economic advantage, though, as even a loss can be beneficial in the long run.

    Motions for summary judgment can take power away from the notorious unpredictability of juries and place the responsibility on an even-handed judge. Though it depends on the type of case at hand, the ability to have a judge review complex cases with technical legal questions means a decision is (hopefully) more likely to be made by an unbiased, knowledgeable and experienced individual. Jurors may be sympathetic to relatable and emotional fact patterns that can significantly influence how they consider the law. When addressing causation issues, a plaintiff may want to take advantage of that “human factor” whereas a defendant would likely prefer to have a judge assess the merits of the legal arguments.

    Summary judgment can also provide valuable clarity as to the issues and factual disputes going into trial. Parties get a preview of their opponent’s evidence and arguments ahead of trial. In state courts with pleading requirements that are more lenient than those at the federal level, having a comprehensive understanding of the specific theories and allegations at issue helps in preparing for trial. If an early motion for summary judgment is filed, the information received may reveal potential areas to explore during discovery. And even a summary judgment loss on one or two issues may provide some benefit in the form of reducing the overall issues, thereby reducing trial costs and allowing the parties to focus their efforts on stronger arguments.

    Finally, obtaining summary judgment on an issue or surviving the opposing party’s motion can significantly affect settlement value. For example, in employer-friendly jurisdictions, a plaintiff who can present evidence sufficient to overcome summary judgment on discrimination claims shows the strength of their case and can increase the value of their claims. For that reason, the mere filing of a persuasive brief can add leverage or shift power between parties, creating an environment for settlement discussions that take into consideration the case’s merits, as well as the parties’ negotiating strategies.

    It is worth noting that while a motion for summary judgment is more economically efficient than trial, preparing and filing such a motion is not inexpensive. The higher cost of summary judgment serves as a self-regulating mechanism, deterring those parties with questionable positions from seeking that relief. The result is that summary judgment motions are generally reserved for cases where the arguments are strong enough to warrant the expense.

    Jurisdiction Determines Which Statement Counts

    It is well-established that at summary judgment, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Federal and state courts have long recognized the principle that at summary judgment, facts and all inferences drawn therefrom must be viewed by the court in the light most favorable to the nonmovant. Summary judgment is appropriate where “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

    These basic principles leave room, however, for opposing parties to survive summary judgment by manufacturing a sham issue of material fact via an affidavit that contradicts their prior deposition testimony.

    “Sham Affidavit” Rule

    Courts across the United States have adopted some version of the “sham affidavit” rule, which precludes a party from submitting an affidavit to create a sham issue. These jurisdictions generally allow their courts to disregard the affidavit or declaration unless the affiant can provide a sufficient explanation for the contradiction.

    Application in Federal Courts

    Federal courts use varying analytical frameworks to address the sham affidavit rule. This rule is limited to only those rare situations where “a party has given clear answers to unambiguous questions [at deposition] which negate the existence of any genuine issue of material fact” and then tries to manufacture an issue of fact “with an affidavit that merely contradicts, without explanation, previously given clear testimony.”

    The doctrine is believed to have originated in the Second Circuit Court of Appeals in Perma Research & Development Co. v. Singer Co. In that case, the president of a company first testified that he could not remember any instances of the defendant’s fraudulent intent to enter into a contract with no intention of performing on it. After the defendant moved for summary judgment, the president submitted an affidavit in which he alleged that a representative of the defendant told him that it had no intent to perform on the contract. The court reasoned that allowing such contradictions would undermine summary judgment by permitting “sham issues of fact.” “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”

    The Tenth Circuit built upon the sham affidavit rule and developed a three-part test to determine whether an affidavit creates a sham issue: “(1) the affiant was cross-examined during his earlier testimony; (2) the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence; and (3) the earlier testimony reflects confusion which the affidavit attempts to explain.”

    The Seventh Circuit has a similar analysis, recognizing three exceptions to the sham affidavit rule. First, courts allow affidavits to contradict prior testimony if there is newly discovered evidence. Second, courts allow affidavits contradicting prior testimony if “the statement is demonstrably mistaken.” Finally, courts allow the submission of supplemental affidavits clarifying ambiguous or confusing deposition testimony.

    Application in State Courts

    A number of state supreme courts have also adopted the sham affidavit rule. In adopting the rule, the Supreme Courts of Texas and Nevada, like the federal courts, reasoned that the rule applies because it is not an exception to the general principle that the trial court should not weigh the evidence or make credibility determinations. Rather, the rule “exists in service of the procedural rule’s textual requirement that trial courts allow only genuine fact issues to survive summary judgment.”

    Though the sham affidavit rule is generally based on affidavits submitted at summary judgment to contradict statements made during a deposition, a few states, like Georgia, have expanded the rule to include any form of sworn testimony. Because Georgia courts have long recognized that at summary judgment, plaintiffs can succumb to the “temptations to perjury” and “by the simple device of filing conflicting affidavits” may attempt get the motion denied, the Georgia Supreme Court developed the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc.

    In Prophecy, the Supreme Court of Georgia established a three-part analytical framework. First, the judge reviews the testimony and determines whether contradictions exist. If the statements are contradictory, the burden then shifts to the party-witness to provide a reasonable excuse for the contradiction. If the party-witness fails to meet this burden, the Prophecy rule requires that the judge eliminate the portions of testimony that are favorable to the party-witness and/or were left unexplained and then decide whether the remaining evidence is sufficient to survive summary judgment. A reasonable explanation, on the other hand, permits the favorable portion of the contradictory testimony to remain as evidence to be considered by the factfinder. It does not eliminate the unfavorable testimony.

    Other state courts, however, take a completely different approach. Tennessee courts, for instance, treat inconsistent statements as having no value. Unless the party can provide a reasonable expectation or offer other evidence to support one of the positions, the statements “cancel each other out.” State courts in Vermont and Alaska do not apply the sham affidavit rule at all. Inconsistent statements “merely create an issue of fact as to credibility.” Self-contradictory statements and equivocations are not considered evidence “reasonably tending to dispute or contradict authentic documentation.” Thus, summary judgment is improper, and the contradictions are sent to the factfinder to be weighed against other evidence and credibility determinations.

    Prepare for Summary Judgment with the Sham Affidavit Rule in Mind

    With so much at stake at summary judgment and the significant role that sworn statements play in litigation, parties should be aware of their court’s approach to the sham affidavit rule when preparing clients for deposition, reviewing evidence, and determining whether to move for summary judgment. There are four key phases during which attorneys can protect against Prophecy pitfalls.

    (1) Pre-deposition: Prepare, Prepare, Prepare

    Deposition preparation should be standard practice for attorneys, and not just because it helps clients feel less nervous. A party’s words become evidence in depositions – so even without the threat of the variations of the sham affidavit rules looming, clients should receive guidance. Clear and consistent testimony can improve the course of a case, just as thoughtless, aimless or contradictory testimony can cause a case to unravel.

    Strong deposition testimony helps establish the party’s credibility and can communicate a clear narrative to the opposing party, despite the natural pull to remember events in a way that benefits the present case. Emphasize that the best answers are honest and clear, and direct them to steer clear of absolutes, speculation, and hypotheticals. Remind clients that deposition testimony should refer only to what they know, not what they assume. Make clear that “I don’t know” is a perfectly acceptable response, and tell them to be clear on what the question is prior to responding. There is no shame in asking for the question to be rephrased or for a specific word to be defined.

    Review with the client their prior statements, verified discovery responses, pleadings and affidavits. Reserve a portion of time allotted for preparation for mock questions. Reviewing the facts with the client beforehand will help refresh their memory as to the order of events and actors and can help highlight facts that should be mentioned or problem areas to try to avoid. The client can work on their tone and pace and can get comfortable with silence.

    If inconsistent statements already exist, a deposition is an opportunity to clean up the record. Reasonable explanations can reconcile inconsistent statements. Communicating with the client and preparing them for potential obstacles or opportunities can be more cost-effective than a summary judgment motion. Putting the time and effort into preparing defendants for their depositions could be the difference between a win, a minimal loss and a runaway verdict.

    (2) At Deposition: Stay Vigilant

    During the deposition, the attorney should pay close attention to the questions and their client’s responses. Object to vague or misleading questions. A client is often told to listen to their attorney’s objections as they may provide a warning for a potential pitfall. Attorneys would likewise benefit from listening to their client’s testimony for the same reason, making sure to object when the client appears to be confused and ensuring the client can complete their thought or explanation. And when the client shows signs of fatigue, call for a recess and have them move around.

    Finally, if the client makes contradicting statements based on confusion or misunderstanding, use the ability to cross-examine them to provide an opportunity to explain away any contradiction. Keep this as limited as possible, however, as the goal is to dig the client out of the hole and not deeper into it.

    (3) After Deposition: Review All Sworn Statements for Contradictions

    Despite best efforts, even the strongest party-witness can contradict their prior statements during a deposition. Attorneys can manage client self-contradictions in four steps: Review the record, identify problem statements, provide a reasonable explanation and correct the record.

    The first step is the most time-consuming, requiring a full analysis of all statements made under oath. Most often the contradiction occurs during a deposition. Depositions can be long and exhausting. The pressure to avoid saying the wrong thing can be intense, and when questions are phrased poorly or are intended to draw a specific response, the most prepared client can still become confused.

    The easiest way to approach the review is to break down the elements of your case, find the facts that would support or deny those elements, and ensure that your client’s statements are consistent as to those facts. The rule applies to material facts, so pay particular attention to statements that go to timelines, actors and witnesses. And note that the rule is not limited to negligence cases. For example, with contract cases, sworn statements that pertain to facts your client relied on when entering a contract could be material.

    In reviewing, make sure that statements are actually contradictory. One definition states that a statement is contradictory “if one part of the testimony asserts or expresses the opposite of another part of the testimony.”

    Whether a contradiction was intentional or not may be irrelevant. For instance, the Prophecy court expressly stated that the error in the original statement may not have been intentional, but correction of the mistake requires intentional contradiction by explanation. In this statement, the court also addressed the occasion where a party may have forgotten his original testimony and tailored his second statement to meet the needs of the case. “He may have no intent to contradict the first statement, but surely the law will construe this contradiction against him.”

    When a potential contradiction appears and there is no room to argue that the statements don’t contradict each other, figure out the cause. Discuss it with the client and identify what caused them to misspeak. The only way to correct inconsistent testimony is to provide a reasonable excuse for why it occurred in the first place. To be reasonable, the explanation must show that “an honest mistake has been made in the first statement.”

    (4) If Necessary, Correct the Record Using an Errata Sheet or Explanatory Affidavit

    Finally, make sure to correct the record. If the contradiction is detected soon after a deposition, submit an errata sheet. Importantly, while an errata sheet will put the corrected statement on the record, it does not remove the original statement from the record, and therefore the need to explain the contradiction may still exist. In doing so, the attorney should check if the jurisdiction might require that the deposition be reopened if changes are deemed “substantive.” For instance, citing Prophecy, the Georgia Court of Appeals has held that corrections may be so substantive that they make the original deposition “useless,” such that reopening the deposition might be necessary. This would then require that the client be prepared to provide an explanation for the correction through testimony.

    If the window to submit an errata sheet has passed or the contradiction appears while responding to a motion for summary judgment, draw up an affidavit with the correct information, provide the reasonable explanation and attach any evidence you may have to support the explanation.

    Conclusion

    Summary judgment provides a key opportunity for ending a case economically or establishing facts and narrowing issues before trial. In moving cases toward summary judgment, attorneys should be aware that uncorrected contradictory statements can carry the harsh penalty of exclusion on summary judgment. By anticipating contradictions, addressing them head-on and guiding clients through deposition with care, attorneys can transform summary judgment from a procedural risk into a tactical advantage. Summary judgment motions may be demanding – but for those who approach it strategically, it can reshape the case long before a jury is ever seated.

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    Cat Gavrilidis
    

    Cat GavrilidisAssociate, Swift Currie
    

    Catherine “Cat” A. Gavrilidis is an associate in Swift Currie’s coverage and commercial litigation group, where she focuses on automobile litigation, premises liability, and employment matters.
    

    Before entering the legal profession, Cat worked in franchise operations and management, and after law school she represented employees in discrimination cases at a plaintiff-side employment firm.
    

    Cat helps clients navigate complex legal challenges with an emphasis on clear communication and practical solutions.
    

    She earned her J.D., magna cum laude, from Georgia State University College of Law. She also holds an M.A. and B.A. from Georgia State University.
    

    
			
    
		
    
		
	
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    FTC Warns Law Firms About Diversity Certifications – This Time Alluding to Antitrust
    
			
    FTC Warns Law Firms About Diversity Certifications – This Time Alluding to Antitrust
    
			
    

    FTC Warns Law Firms About Diversity Certifications – This Time Alluding to Antitrust 
    


    

    Warnings are part of a pattern to broaden the pressure and power of the executive branch over law firms and media companies. 
    


    

    The FTC framed coordinated diversity efforts as a labor-market antitrust concern, warning that structured knowledge-sharing among competing firms could distort competition for legal talent.
    

    

    It appears big law firms are staying quiet after receiving warnings from the Trump administration that any coordinated efforts, policies, or programs to develop diverse teams could be actionable. Their silence is likely because the latest missive – this one from the head of the Federal Trade Commission – is more along the lines of “watch your step” than “you’re breaking the law.” Also, seeing the writing on the wall, some firms already scaled back their DEI programs.  
    

    FTC Chairman Andrew N. Ferguson sent warning letters to 42 major U.S. law firms on January 30 cautioning that participation in Diversity Lab’s Mansfield Certification program may expose them to liability under Section 1 of the Sherman Act (prohibiting collusion and other agreements that restrain trade) and Section 5 of the FTC Act (barring unfair methods of competition, including conduct that falls short of a full Sherman Act violation).” The FTC framed the issue as a labor‑market antitrust concern, warning that coordinated DEI‑related benchmarks and structured “knowledge‑sharing” among competing firms could impair independent decision‑making and distort competition for legal talent.  
    

    At the same time, a federal court has weighed in on Mansfield in a different context—rejecting claims that the program creates unlawful quotas. Although that decision does not address antitrust theory, it is relevant to the public conversation about what Mansfield does and does not benchmark when it comes to the legal labor market.  
    

    What is The Mansfield Rule? 
    

    Mansfield was adopted in 2016 by a diversity testing and certification organization, Diversity Lab, during their “Women in Law Hackathon,” to broaden the pool of candidates for leadership roles at America’s law firms. The Women in Law Hackathon is an innovation competition (think Shark Tank) created by Diversity Lab in partnership with Stanford Law School and Bloomberg Law. Its purpose is to generate new, evidence‑based ideas to advance women in the legal profession. They named it for Arabella Mansfield who, in Iowa in 1869, became the nation’s first woman admitted to practice law. 
    

    Diversity Lab modeled Mansfield on the NFL’s 2003 “Rooney Rule,” which requires teams to interview minority candidates for head‑coaching and senior positions to ensure they receive genuine opportunities. The Rooney Rule emerged after criticism of the NFL’s hiring practices, particularly the 2002 firings of two successful Black head coaches. Civil‑rights attorneys proved that Black coaches won more games on average but were hired less often and fired more frequently. In response, the NFL’s Workplace Diversity Committee – chaired by Dan Rooney, owner of the Pittsburgh Steelers – recommended the rule, which was named in his honor. 
    

    Like the Rooney Rule, the Mansfield Rule focuses on expanding opportunity, but with a legal‑industry‑specific benchmark: firms must consider at least 30% underrepresented lawyers in candidate pools for promotions and leadership roles. Both rules aim to interrupt structural bias not by mandating outcomes, but by ensuring that qualified, diverse candidates are consistently included in leadership pipelines. Mansfield Certification Plus recognizes firms that show measurable progress toward the 30% benchmark for considering minority hires.  
    

    The FTC’s Theory: DEI Coordination as Potential Labor‑Market Collusion 
    

    The Trump administration has made clear its intentions to wipe away any and all DEI programs as “reverse discrimination.” In its warning letter, the FTC points to reporting that firms participate in monthly “knowledge‑sharing calls” with other Mansfield firms to discuss implementation. The Commission suggests that these calls may create avenues for reduced independent decision‑making, sharing of competitively sensitive information, and potential wage suppression. The FTC warns that any exchange of pay or benefits information among competitors could harm competition for legal talent. 
    

    The Commission emphasizes that its letters are not findings of illegality, but cautionary notices encouraging firms to review their DEI‑related interactions with competitors. Despite the seriousness of the warnings, law firms have remained silent. Of course, they haven’t been charged with breaking any laws.  
    

    Judicial Treatment of Mansfield: No Quotas, No Mandated Outcomes 
    

    This is the Trump administration’s second volley at Mansfield. The first one was lobbed in the context of employment law. In a 2025 opinion in Perkins Coie LLP v. DOJ, Judge Beryl Howell rejected the government’s claim that Mansfield participation reflected discriminatory hiring. “The Mansfield Rule expressly does not establish any hiring quotas or other illegally discriminatory practices, requiring only that participating law firms consider attorneys from diverse backgrounds for certain positions.” She concluded that the FTC failed to provide any evidence of any anti-discrimination law violations. Briefing in the FTC’s appeal to the D.C. Circuit begins next month.  
    

    The administration’s assault on big law firms was a headliner during the first year of President Trump’s second term. An executive order challenged in Jenner & Block LLP v. DOJ was issued with the clear intent to punish the firm for the clients it represented, the cases it pursued, and the political viewpoints the administration attributed to it, Judge John Bates decided. The order explicitly criticized Jenner & Block for engaging in what it labeled “partisan” litigation and for its association with an attorney who had publicly opposed Trump, and it imposed punitive restrictions such as suspending security clearances, limiting access to federal buildings, and pressuring agencies and contractors to sever ties with the firm—all measures designed to cripple its ability to function in matters involving the federal government.  
    

    Judge John Bates struck down the order in full, finding it unconstitutional retaliation that violated the First Amendment’s prohibition on government‑imposed political orthodoxy and improperly chilled legal advocacy, noting that “few stars are as fixed” in the constitution as the rule that no official may dictate what is and what is not acceptable political viewpoints. The DOJ has appealed Judge Bates’s ruling to the U.S. Court of Appeals for the D.C. Circuit. 
    

    Another Extra Broad View of Antitrust Law 
    

    This also marks at least the second instance of the Trump administration trying to leverage antitrust laws to advance its ideology-driven policies. The DOJ submitted a statement of interest in favor of alternative media companies who are alleging that mainstream media companies and social media platforms colluded via the Trusted News Initiative (TNI) to suppress alternative content on Facebook, Instagram, LinkedIn, Twitter, and YouTube. As the defendant publishers put it, though, TNI is a media partnership whose goal is to identify and combat disinformation harmful to the nation’s health, relating to the COVID-19 vaccine, for example, and the democratic process, such as unfounded reports challenging the legitimacy of the 2020 election (Children’s Health Defense, et al. v. Washington Post, et al., No. 1:23-cv-2735-TJK, D.DC). 
    

    The case originally was brought in January 2023 by now-Secretary of Health and Human Services Robert F. Kennedy Jr., the anti-vaccine Children’s Health Defense organization, which Kennedy founded, and a group of alternative media producers, Creative Destruction Media and TrialSite News among them. The alternative media companies say they were deplatformed by the publishers and platform operators because their healthcare and political views were outside the mainstream. 
    

    The defendants, The Washington Post, the BBC, the Associated Press, and Reuters, stand by their anti-disinformation efforts and say the case fails to meet any of the requirements of the Sherman Act. The case is pending.  
    

    Media Mergers: Another Key Aspect of Competition Law 
    

    These interventions fit a broader pattern. Axios has documented Trump’s practice of applying regulatory leverage and public pressure to influence media ownership, shaping which companies expand and which stall in merger review.  Similar dynamics surfaced in earlier episodes—from pressuring regulators on station‑ownership caps to publicly urging approval of the Nexstar‑Tegna merger as a way to counter “fake news” competitors.  Collectively, these actions demonstrate how merger review has become another arena in which the administration seeks to reward aligned media companies and disadvantage those viewed as critical – reinforcing the same concerns about retaliatory government power that underlie the federal courts’ skepticism in the law firm cases.  
    

    The Trump administration has also made headlines by inserting itself directly into major media‑industry mergers, often involving companies with news divisions the president has publicly criticized.  
    

    Recent reporting shows that Trump signaled he would “be involved” in evaluating Netflix’s proposed $83 billion acquisition of Warner Bros. Discovery, commenting that the deal “could be a problem” because of the market share it would create.  Days later, The Guardian reported that his financial disclosure revealed more than $1 million in bond purchases from Netflix and Warner Bros. Discovery—transacted while the merger awaited regulatory review—raising concerns about political influence over the process.  At the same time, a competing hostile bid by Paramount Skydance, backed financially by Jared Kushner and connected to Trump‑aligned investors, positioned the administration even closer to decisions over who would control CNN, HBO, and other outlets frequently targeted by the President.  
    

    Stand Up or Stand Down?  
    

    Recent actions by the Trump administration make clear that both law firms and media companies remain prime targets. The White House perceives that they wield excessive influence and have leveraged their positions for financial and strategic gain. By invoking antitrust and other federal laws, the administration signals its determination to challenge what it sees as abuses of power—whether in the context of diversity initiatives within legal organizations or in the operations of major media partnerships.  
    

    This ongoing scrutiny reflects a broader ideological stance: that these institutions, in the administration’s view, have crossed lines in ways that justify government intervention, both to restore competition and to curtail perceived overreach in the pursuit of profit and political objectives.  
    

    As these legal skirmishes and regulatory warnings continue to play out, law firms and media organizations must navigate an environment of heightened enforcement and political pressure. The outcomes of these disputes will shape not only antitrust, freedom of speech, diversity initiatives, and employment practices, but the broader relationship between private power and government oversight. 
    

    It is worth noting that the law firms warned by the FTC have robust antitrust practices or employment law practices or, in some cases, both.  
    

    

    The letters do not allege illegality — they signal a broader push to expand executive branch pressure over law firms and media organizations.
    

    

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    Send us your idea! 
    

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    Tom Hagy
    

    Tom HagyEditor-in-Chief
    

    Tom is a legal content provider with more than four decades’ experience as a writer, editor, publisher, podcaster, and legal education provider — always producing information and services on emerging areas of litigation. He founded HB in 2008 and CLC in 2012, to provide content for small firms and providers in the litigation space. If you have comments or wish to collaborate, write to him at Editor@LitigationConferences.com.
    

    
			
    
		
    
		
	
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    Using AI to Strengthen Law Firm Content Development – JD Supra ‘Office Hours’ with Tom Hagy
    
			
    Using AI to Strengthen Law Firm Content Development – JD Supra ‘Office Hours’ with Tom Hagy
    
			
    

    Using AI to Strengthen Law Firm Content Development – JD Supra ‘Office Hours’ with Tom Hagy
    

    By Paul Ryplewski, Vice President of Client Services at JD Supra
    


    

    

    AI isn’t the author — it’s the editorial assistant. The value comes from how marketers guide, challenge, and refine its output to create content that actually serves real readers.
    

    

    

    I recently had the pleasure of speaking with Tom Hagy, Founder of Critical Legal Content and HB Litigation, during an JD Supra Office Hours session focused on how law firm marketers can use AI to support content development—without sacrificing judgment, voice, or credibility.
    

    Tom has spent decades as a legal editor, writer, and strategist, helping attorneys turn complex legal issues into clear, readable, and useful thought leadership. In our conversation, he shared a grounded, editorially disciplined view of AI: not as a replacement for human thinking, but as a way to help marketers do what they already do—develop stronger ideas, create better drafts, and publish content that serves real audiences—more efficiently and with greater consistency.
    

    Below are the key takeaways from the session, with a focus on how AI fits into everyday law firm content workflows.
    

    Start with Content Development, Not the Tool
    

    Tom encouraged marketers to think about AI the way an editor thinks about staffing: as a hyper-efficient junior researcher or assistant, not an author of record.
    

    Your first prompt doesn’t need to be perfect. What matters is the back-and-forth—refining, challenging, expanding, and redirecting the output, just as you would with a junior writer. AI works best when marketers stay in an active editorial role, guiding the conversation instead of outsourcing the thinking.
    

    As Tom put it, the value isn’t in a single answer—it’s in the relationship you build with the tool as you push it toward something genuinely useful.
    

    Use AI to Generate Ideas—and Better Angles on Familiar Topics
    

    One of AI’s most immediate strengths is content ideation, especially for law firms that need to sustain editorial calendars across multiple practices.
    

    Tom regularly uses AI to:
    

      

    • Find fresh angles on evergreen topics firms have covered for years
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    • Surface industry-specific concerns facing in-house counsel or executives
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    • Generate topic lists for blog series, webinars, and client alerts
      • 

    

    A key insight: be explicit about who the content is for and where that audience already turns for information. Referencing trusted organizations—industry groups, bar associations, or professional networks—helps AI generate ideas that feel grounded in the right ecosystem, rather than generic legal commentary.
    

    The goal isn’t volume. It’s relevance.
    

    Translate Attorney Expertise into Client-Ready Content
    

    Many attorneys still write as though their primary audience is other lawyers—even when the intended readers are in-house counsel or business leaders. Tom shared several practical ways marketers can use AI to help bridge that gap.
    

    His advice: use AI as a translator of complexity, not a simplifier of substance.
    

    Marketers can ask AI to:
    

      

    • Explain a technical draft “as if I’m five”
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    • Rewrite the same content for an experienced professional audience
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    • Pull out three key takeaways at the top of a piece
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    • This process preserves legal accuracy while improving clarity and readability—making content more likely to be read, understood, and acted upon.
      • 

    

    As Tom noted, even attorneys don’t enjoy dense, impenetrable writing. Clear structure and audience awareness benefit everyone.
    

    Don’t Fear the First Draft—Experiment with Structure
    

    There’s an ongoing debate about whether AI should be allowed to write a first draft. Tom’s answer was refreshingly pragmatic: try both approaches.
    

    For some marketers, starting with a rough AI draft makes the work easier—it’s often simpler to revise and refine than to begin with a blank page. For others, AI is most useful at the outlining stage, helping answer questions like:
    

      

    • What should this article cover?
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    • What questions does the reader actually want answered?
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    • How should this be structured for clarity?
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    Either way, AI can handle the heavy lifting of organization, freeing marketers to focus on editorial judgment and refinement.
    

    Repurpose What You’ve Already Written
    

    One of Tom’s favorite applications of AI is repurposing existing content—something many firms underutilize.
    

    With AI, marketers can take:
    

      

    • A webinar transcript
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    • An older client alert
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    • A prior article
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    …and quickly generate:
    

      

    • Updated versions
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    • Summaries
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    • LinkedIn posts
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    • Slide talking points
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    • Podcast scripts
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    As Tom put it, “take one thing and make it five things.” AI dramatically reduces the friction involved in extending the life and reach of good content—especially when firms already have deep libraries of material.
    

    Audit Your Content Library for Hidden Value
    

    Beyond individual pieces, AI can help marketers step back and look at content across an entire firm or practice.
    

    Tom described uploading batches of documents and asking AI to:
    

      

    • Summarize themes
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    • Identify gaps or overlaps between practices
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    • Surface evergreen topics worth updating
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    • Explain why certain pieces were prioritized
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    This “why” matters. It allows marketers to compare AI’s logic with their own instincts, rather than blindly accepting the output. The result is a faster, more strategic way to identify content opportunities that align with business development goals.
    

    Write for Visibility—Without Losing the Human Reader
    

    While the session focused on content development, Tom also touched on how publishing norms are shifting as AI-driven search becomes more common.
    

    His advice for marketers:
    

      

    • Use clear, intent-driven headings
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    • Consider FAQ-style sections where appropriate
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    • Keep each section focused on a single, self-contained idea
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    • Be specific in references (“Nebraska regulators” instead of “the state”)
      • 

    

    This structure helps content surface in AI answers without abandoning traditional editorial standards. Not every piece needs to follow this model—but for many blog posts, it can meaningfully improve discoverability.
    

    Accuracy, Voice, and Judgment Still Belong to Humans
    

    Throughout the conversation, Tom returned to one essential point: editing is not casual reading.
    

    Marketers remain responsible for:
    

      

    • Checking sources
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    • Verifying claims
      • 

    • Trusting their instincts when something “sounds off”
      • 

    • Preserving attorney voice and credibility
      • 

    

    AI can accelerate content development, but it doesn’t replace editorial accountability. Tom also emphasized transparency, noting that he discloses AI assistance while making clear that content is reviewed and edited by an experienced human.
    

    Key Takeaways for Law Firm Marketers
    

      

    • Treat AI as an editorial partner, not a replacement for judgment
      • 

    • Use it to strengthen ideation, structure, and clarity—not to bypass thinking
      • 

    • Focus on audience needs at every stage of content development
      • 

    • Repurpose and audit existing content to maximize value
      • 

    • Maintain responsibility for accuracy, voice, and credibility
      • 

    

    AI won’t decide what your firm should write about—or why it matters. But in the hands of thoughtful marketers, it can make the process of developing, refining, and publishing strong thought leadership faster, more consistent, and more strategic.
    

    If you’d like to watch the full Office Hours session or discuss how these ideas fit into your firm’s content program, feel free to reach out.
    

    Paul Ryplewski is VP of Client Services at JD Supra. Connect with him on LinkedIn. Follow his latest writings on JD Supra.
    

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    It’s possible it could make this man smile. But let’s not get ahead of ourselves.
    

    Tom Hagy
    

    Tom HagyEditor-in-Chief
    

    Tom is a legal content provider with more than four decades’ experience as a writer, editor, publisher, podcaster, and legal education provider — always producing information and services on emerging areas of litigation. He founded HB in 2008 and CLC in 2012, to provide content for small firms and providers in the litigation space. If you have comments or wish to collaborate, write to him at Editor@LitigationConferences.com.
    

    Paul Ryplewski 
    

    Paul Ryplewski VP of Client Services, JD Supra
    

    Paul is Vice President of Client Services at JD Supra, where he advises professional services marketers on how to reach targeted audiences and replicate successful engagement strategies. He works closely with law firms, consultants, and other professional service organizations to amplify their thought leadership to in-house counsel, executives, and journalists. Paul helps clients leverage JD Supra’s distribution data to inform business development, PR, and editorial strategy. He also leads onboarding, shares best practices, and partners with clients to ensure they get the most value from the platform.