Rule of Civil Procedure 56 permits any party to a civil action to move for a summary judgment on a claim, counterclaim, or cross-claim when there are no genuine issues of material fact.  Therefore the party is entitled to prevail as a matter of law.

A 'genuine issue' is one that can be determined by a trier of fact, a jury or a judge.  It can be resolved in favor of either party.  A 'material fact' is one that affects the outcome of a suit under the governing 'substantive law'.  Substantive Law determines which facts are material to the dispute.

Summary judgments are mostly used by defendants.  In fact most summary judgments are granted to a defendant based on the insufficiency of a plaintiff's claim.

To oppose summary judgment it is necessary to set forth facts showing genuine issues of fact exist for trial.  It is also necessary to produce significant 'probative evidence' (tending to or actually proving evidence) demonstrating the existence of triable issues of fact.  For a defendant opposing a plaintiff’s summary judgment motion it is only necessary to disprove at least 'one' essential element of the plaintiff’s claim.  Challenging improper proof with evidence and fact is enough to defeat this motion.

Summary judgment should not be allowed without discovery.  Discovery causes each side to support their side of the issues with facts, evidence, declarations and testimony.  Without discovery fraudulent declarations for example can go without verification and/or concurrence with other facts or testimony.

The purpose of summary judgment is to dispose of a complaint without costly trial.  It can only be used if the facts are not in dispute, however the judge decides on this point thus allowing personal bias or predilections to interfere.  Therefore summary judgment use rides a fine line of being a tool that threatens our 5th and 14th amendment due process rights.

 Summary Judgment Abstract

A fault with summary judgment is in the meaning of 'substantive law'.  It is law which creates, defines and regulates rights as opposed to 'adjective or remedial law' which prescribes method of enforcing the rights or obtaining redress for their invasion.  Rights, in reality, cannot be created or given to citizens by government, they are inherent from God, a fact recognized in the Declaration of Independence and referred to in the Constitution.  When government creates rights it does so at risk of becoming a tyrant and creating instability within society.  It logically follows that if government creates rights it will take it upon itself to define those rights and judge how they are applied.  This is a seizure of power that is entirely against the meaning and intent of the Constitution.

The Constitution gives the government 'authority' only to protect natural rights of the people.  This is in opposition to a government which creates rights to enforce its power.

Since the legislature now creates and defines the rights of the people they act as creators and we the people are thus in danger from an unconstitutional government.  To a litigant in court it means the line between true and false facts are blurred.  Thus the litigant cannot feel assured justice will be served.

In summation, summary judgment had a meaning as long as truth and fact were not distorted.  When reality is distorted to serve self-serving interests or deprive others of their life, liberty or properties we the people are in danger.  The legislature and judiciary are the ones responsible for this danger to exist.