Boulder County Bar Association

The procedural "norm" in civil cases is that the parties' various claims and defenses will be resolved only through the presentation of "live" witness testimony and of evidentiary exhibits, before the trier of fact (judge or jury), which will then resolve factual disputes and reach a decision as to which party wins. There is a way in which the court can resolve some disputes without the necessity for a trial proceeding.

Such a non-trial resolution is possible where the parties are really only fighting over what law should be applied to an agreed-upon set of facts or where there is no real dispute as to central facts. For example, if a terminated employee is seeking unpaid sales commissions and contractual severance pay from his former employer, there may well be no dispute that the employee was in fact terminated, and any dispute that might otherwise exist as to the reasons for such termination may not have any legal relevance. Instead, the "real" dispute to be resolved might instead be the wholly legal determination of whether such unpaid compensation constitutes "unpaid wages" under a Colorado statute which provides for penalties and legal expenses. In this context, one or both parties might well file a motion asking the court to enter "summary judgment." (Such a judgment is considered "summary" because it is entered without any evidentiary trial proceedings.)

A party who files a motion for summary judgment is asking the court to enter judgment in its favor either because even if everything his opponent alleges is correct he is still not legally entitled to what he is requesting or because certain key facts are undisputed. In the latter case, the party moving for summary judgment may try to attach such a lack of factual dispute by submitting various materials for the court to consider, such as contracts or correspondence between the parties, excerpts from deposition transcripts or other discovery responses, or an affidavit from the moving party itself. [The use of affidavits in this context is one of the few situations in which written affidavits may properly be used in lieu of "live" witness testimony.] The other party may then attempt to show that a factual dispute does instead really exist, by submitting similar such materials. If the court concludes from such materials that a dispute of "material" (i.e., relevant and meaningful) fact really does exist, it must deny summary judgment. If no such dispute exists, the court may proceed to decide what the correct legal resolution is, which could have the effect of completely resolving the entire case, or resolving only some of the claims in the case, or resolving only claims involving some of the parties in the case.