Definition
A sham plea is a false or fictitious pleading — one that a party knows to be untrue — interposed not to advance a genuine defense but to harass an opponent, gain time, or otherwise abuse the pleading process. Under the common law system of formal pleading, a sham plea was distinguished from a merely weak or legally insufficient plea: the defect was not in its legal form but in its factual truth. Courts could strike a sham plea on motion rather than requiring a full traverse, because the falsity was regarded as palpable on its face.
The term appears almost exclusively in historical and procedural contexts. Modern civil pleading rules — governed in federal practice by the Federal Rules of Civil Procedure and in most states by analogous codes — largely displaced the formal plea system in which sham pleas flourished. The concept survives in attenuated form in rules permitting courts to strike pleadings that are redundant, immaterial, impertinent, or scandalous, and in the broader framework of sanctions for frivolous filings.
Common Language
Modern common usage (Wiktionary): "Sham" means something that is not what it appears to be; a fraud, counterfeit, or deliberate deception.
Historical common usage (Webster's 1913): "Sham" is defined as a trick that deludes; a device that misleads by a false appearance. Also used adjectivally to mean false, counterfeit, or pretended.
The common meaning of "sham" maps onto the legal term more closely than usual, but the gap matters for research: in common use, sham implies concealed or subtle deception. In pleading law, a sham plea was often characterized precisely by its palpable, visible falsity — a plea so obviously untrue that the court would not require the opposing party to respond to it on the merits. The deception was directed at delay, not at concealing the falsehood itself.
Common Confusion
Sham plea is sometimes conflated with a plea in bar that fails on the merits, or with a dilatory plea filed primarily for procedural advantage. The distinctions matter historically: a dilatory plea may be entirely truthful but filed to postpone rather than contest the action, while a sham plea is false in fact. A plea that is legally deficient — that fails to state a valid defense even if true — is demurrable, not a sham. Courts applying common law pleading rules treated these categories as procedurally distinct: demurrer addressed legal insufficiency; a motion to strike addressed factual falsity. Conflating them in historical sources can mislead a researcher about the procedural posture of an old case.
Why It Matters in Research
Researchers working with pre-code common law pleading records — particularly English and American cases from the eighteenth and nineteenth centuries — will encounter sham pleas as both a procedural device and a rhetorical charge. Several navigation points:
First, the term is heavily context-dependent by era. Before the Field Code (1848) and its successors, formal pleading governed American civil practice, and sham pleas were a recognized abuse with a specific procedural remedy. After code pleading displaced the old forms, courts still occasionally used the phrase but in looser, more pejorative senses. A researcher reading an 1890s opinion must determine which regime applied.
Second, the treatise literature is the primary source, not case reporters. Chitty's Precedents of Pleading and Stephen's Principles of Pleading are the authorities most cited in the historical dictionaries. The specific references — 3 Chitty's General Practice 729–730 and Stephen's Pleading 383 — are the anchors for any serious historical analysis. A researcher who cannot access those texts directly should treat secondary dictionary entries as summaries, not primary authority.
Third, in criminal practice, the phrase "sham plea" occasionally appeared to describe a guilty plea entered to a lesser offense without genuine admission, or a not-guilty plea entered purely to exploit procedural advantages. This usage is distinct from the civil pleading doctrine and should not be imported into civil research contexts without care.
Fourth, the remedy is historically significant: courts could strike sham pleas on motion, summarily, without requiring the plaintiff to reply. This summary power over pleadings has constitutional implications in modern practice that did not exist in the earlier common law context.
Historical Dictionary Support
The historical dictionaries converge on two core elements: falsity in fact and purpose of delay or harassment. Burrill and the first edition of Black's track almost identically, both citing 3 Chitty's General Practice 729–730 for the definition of a plea of "false or fictitious matter, subtly drawn so as to entrap an opponent, or create delay." Rapalje and Lawrence add Stephen's Pleading as a second authority and explicitly note the procedural remedy — that such pleas "may be stricken out on motion" — a detail the other dictionaries leave implicit.
Chitty's own definition, preserved in Black's first edition, sharpens the concept usefully: sham pleas are those "so palpably and manifestly untrue that the court will assume them to be so." This distinguishes the sham plea from a merely controverted factual allegation and explains why summary disposition was available — the falsity was treated as self-evident.
Bouvier's and the second edition of Black's are unhelpful here; both simply redirect to the general entry for PLEA without substantive discussion. Researchers should not treat those cross-references as indicating that Bouvier's regarded sham pleas as subsumed within a broader category; the redirects more likely reflect editorial economy in later editions rather than doctrinal position.
None of the historical dictionaries address the transition to code pleading or the fate of the sham plea doctrine in modern practice. That silence is itself instructive: the corpus of historical legal dictionaries reflects the common law pleading world, and researchers should supplement those sources with procedural history literature when tracing the doctrine forward.
Jurisdictional Note
The sham plea doctrine was primarily English in origin and was received into American common law jurisdictions. Its vitality varied by state depending on how quickly and completely each jurisdiction adopted code pleading after 1848. A few states retained common law pleading forms well into the twentieth century. Federal courts operated under the Conformity Act (1872) and then under the Federal Rules from 1938, which largely replaced the old plea categories with notice pleading.
Encyclopedia Cross-Reference
Arraignment and Entry of Plea — The Law Mind Criminal Law Encyclopedia (criminal_198)
Plea Bargaining: Law, Practice, and Judicial Oversight — The Law Mind Criminal Law Encyclopedia (criminal_202)
Guilty Pleas: Voluntariness, Collateral Consequences, and Withdrawal — The Law Mind Criminal Law Encyclopedia (criminal_203)
Note: The encyclopedia entries above address modern plea practice in criminal procedure. Sham plea as a civil pleading doctrine has no direct modern encyclopedia analog; the criminal entries are most relevant for researchers tracing the concept into contemporary guilty-plea contexts.