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What is a Summary Judgment?

Updated on February 18, 2010

Summary Judgment, in law, a means of obtaining a judgment in a civil lawsuit where there appears to be no triable issue. This avoids waiting the usual period of months, or even years, for the case to be reached on the regular trial calendar. The procedure is often used in the United States in both state and federal courts. It was developed to prevent a defendant who had no defense from delaying judgment (often in an effort to put his property out of reach of the plaintiff) by filing a sham answer and demanding a jury trial. The procedure was later expanded to include the much rarer case in which the defendant proved that a plaintiff had stated a sham claim for some ulterior purpose.

Defenses: Sham or in Good Faith?

In a typical case, the plaintiff who claims a right to an immediate judgment without waiting for the case to be reached on the regular trial calendar makes a motion for a summary judgment. It is not enough for the plaintiff merely to charge that the other party's defense is without merit; to expose a sham denial he must first produce evidence, usually by means of affidavits, tending to prove that the facts alleged in his own statement are probably true. If the defendant making the denial produces evidence tending to show that the facts adduced by the plaintiff are not true, the motion is denied and the case must await its turn on the trial calendar. If, however, the defendant does not produce evidence to support his denial, the motion for summary judgment is granted.

In order to expose a sham statement of claim or defense, the party making the motion must produce evidence tending to prove that the other side's statement is false. If he fails, the motion is denied, and the case must be tried in regular course. If he succeeds, the party making the statement must then produce evidence to support its truth. If no such proof is forthcoming, judgment will be rendered immediately.

Basis for Summary Judgment

In summary judgment proceedings, supporting and opposing affidavits must be made on personal knowledge by persons competent to testify and must contain facts admissible in evidence. Generally a summary judgment is justified only if no material issue of fact survives the pleadings, affidavits, and depositional proof. If questions of fact appear, a trial is required.

English and American Legislation

Application of an 1855 English statute on summary judgments was limited to action on bills of exchange and promissory notes. Before the adoption in 1938 of the federal rules of civil procedure for the district courts of the United States, summary judgment procedure was not available in all types of cases. The first provision in California, for example, authorized the procedure only "in an action to recover upon a debt or upon a liquidated demand including an action to enforce or foreclose a lien or mortgage." The federal rules were the first to provide that the procedure should be available in every type of action without restriction.


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