¶1¶ 24. (dissenting). I conclude that the adoption of the so-called "sham affidavit" rule is unwarranted. I therefore respectfully dissent.
¶2¶ 25. We have stated on several past occasions that no other statutory provision has been litigated as frequently as Wis. Stat. § 802.08, the summary judgment statute. Kraemer Bros. v. United States Fire Ins. Co., 89 Wis. 2d 555, 565, 278 N.W.2d 857 (1979) (citing Leszczynski v. Surges, 30 Wis. 2d 534, 537, 141 N.W.2d 261 (1966)). Although frequent experience with summary judgment has turned it into a familiar motion, we must remember that it is a drastic remedy. Nelson v. Albrechtson, 93 Wis. 2d 552, 555, 287 N.W.2d 811 (1980). "There is no absolute right to summary judgment." Zimmer v. Daun, 40 Wis. 2d 627, 630, 162 N.W.2d 626 (1968). It is simply a procedural devise to provide prompt relief when the pending action presents no triable issue.
¶3¶ 26. The methodology employed by the court on motion for summary judgment is well established. Adding the sham affidavit rule to this procedure is unwise and unnecessary.
¶4¶ 27. The rule is unwise because it puts the court into the position of weighing the evidence and choosing between competing reasonable inferences, a task heretofore prohibited on summary judgment. Pomplun v. Rockwell Int'l Corp., 203 Wis. 2d 303, 306-07, 552 N.W.2d 632 (Ct. App. 1996); Fischer v. Doylestown Fire *273Dep't, 199 Wis. 2d Wis. 2d 83, 87-88, 543 N.W.2d 575 (1995). As a result, the "sham affidavit" rule, in my opinion, improperly usurps the role of the jury.
¶5¶ 28. This distortion of the division of labor between judge and jury by adopting the "sham affidavit" rule is unnecessary. Summary judgment is a procedural tool available to a litigant seeking to flush out the fatal defect in an opponent's case. It is not the only tool in the procedural box and should not be viewed in isolation from other statutes and rules. For example, if a court decides, at any time, that affidavits presented for or against a motion for summary judgment were made in bad faith, the judge may order the party who submitted the affidavits to pay to the other party the costs, including attorney fees, which the filing of the affidavits caused the other party to incur. Wis. Stat. § 802.08(5).
¶6¶ 29. In addition, if the summary judgment motion is denied, a witness may be impeached at trial with prior inconsistent statements. Wis. Stat. § 908.01(4)(a)l. A defendant may move for a judgment as a matter of law at the close of the plaintiffs evidence. Wis. Stat. §805.14(3). An attorney who files papers with the court for any improper purpose may face sanctions under Wis. Stat. § 802.05. And, as the bar is well aware, there is significant bite to a determination that a suit has been continued frivolously. See Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 597 N.W.2d 744 (1999), reconsideration denied, 230 Wis. 2d 246, 601 N.W.2d 650 (1999).
¶7¶ 30. I conclude that the "sham affidavit" rule adds nothing to our summary judgment process. Even its unfortunate name, "sham affidavit," reflects negatively upon the work of the bench and bar. As a result, I cannot join the majority's decision to adopt this rule.
¶8*274¶ 31. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join in this dissent.