In the life cycle of a lawsuit, summary judgment is the parties’ last chance before trial to win the case without having to go to trial or settle. In addition, because summary judgment usually comes after discovery has ended in the case, it is the parties’ first chance to present evidence in their favor and argue their case to the judge. Because you only get one chance to make a first impression, summary judgment is a critical step in the case and must be taken seriously.
Generally speaking, the test at summary judgment is whether a genuine dispute of material fact prevents a party from proving the elements of its claim or defense. If there is a genuine dispute of material fact, then the case proceeds to trial, and the jury gets to determine the fact; if there is no genuine dispute of material fact, then the court can grant summary judgment, and a party can win its case without having to go to trial.
To show that there is either a genuine dispute of material fact or no genuine disputes of material fact, attorneys generally include an affidavit supporting their party’s summary judgment filings. In the affidavits, the attorneys and their parties will swear to certain facts supporting their case and show that a genuine dispute of material fact either exists or does not exist.
Two critical rules have developed regarding the use of affidavits at summary judgment. Namely:
1. When a motion for summary judgment is submitted and supported by affidavit, the party opposing the motion for summary judgment cannot rely on the mere allegations of that party’s pleadings but must, by affidavit or otherwise as provided in C.R.C.P. 56, set forth specific facts showing a genuine dispute of material fact.
2. A motion for summary judgment supported by an affidavit, to which no counter-affidavit is filed, establishes the absence of an issue of fact, and the court is entitled to accept the affidavit as true.
See McDaniels v. Laub, 186 P.3d 86, 87 (Colo. App. 2008).
Thus, when it is time for summary judgment in your case, it is crucial that you: (1) file an affidavit that supports your summary judgment filings and (2) respond to any affidavit that the opposing party files with their summary judgment filings.
