Responding to summary judgment in Colorado: 91 days before trial, and sworn copies attached

Colorado sets its summary judgment deadlines by counting backwards from trial, not forwards from anything. That is the first thing to check when a motion arrives: was it even filed in time?

The second is the affidavit requirement, which is stricter than most and where oppositions most often fail on the papers rather than on the merits.

The two backward deadlines

C.R.C.P. 56(c):

Motion and Proceedings Thereon. Unless otherwise ordered by the court, any motion for summary judgment shall be filed no later than 91 days (13 weeks) prior to trial. A cross-motion for summary judgment shall be filed no later than 70 days (10 weeks) prior to trial. The motion may be determined without oral argument. The opposing party may file and serve opposing affidavits within the time allowed for the responsive brief, unless the court orders some lesser or greater time. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

Two practical consequences.

The opposition deadline is not in Rule 56. It is "within the time allowed for the responsive brief", which comes from the practice standards and any case management order — so that is where to look, not here.

There may be no hearing. "The motion may be determined without oral argument" means the papers are usually the whole case. Nothing is held back for a hearing that may never happen.

Who may move, and when

C.R.C.P. 56(a) makes the claimant wait; 56(b) does not:

For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, after the expiration of 21 days from the commencement of the action or after filing of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the claiming party's favor upon all or any part thereof.

For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, move with or without supporting affidavits for a summary judgment in the defending party's favor as to all or any part thereof.

A claimant waits 21 days from commencement — or may move immediately if the other side moves first. A defending party has no waiting period at all.

Note also that "commencement" in Colorado can be by service rather than filing — see starting a Colorado civil case — so the 21 days may run from earlier than you expect.

The affidavit requirements

C.R.C.P. 56(e) is where oppositions are lost:

Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits. When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of the opposing party's pleadings, but the opposing party's response by affidavits or otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If there is no response, summary judgment, if appropriate, shall be entered.

Four requirements, and the second is the one Colorado enforces more strictly than most:

• personal knowledge;
• facts admissible in evidence;
• an affirmative showing that the affiant is competent to testify; and
• sworn or certified copies of everything the affidavit refers to, attached or served with it.

"Sworn or certified" is stronger than "copies". A plain photocopy of a contract stapled to an affidavit does not meet the words of the rule.

And the consequence of silence: "If there is no response, summary judgment, if appropriate, shall be entered."

Partial relief, and facts deemed established

C.R.C.P. 56(d) is the provision most people forget, and it can bite the party who won nothing:

Case Not Fully Adjudicated on Motion. If on motion under this Rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

A denied motion is not a neutral event. The court shall, if practicable, specify the facts without substantial controversy — and those facts are deemed established at trial.

So an opposition that concedes too much in the interests of brevity can hand the other side findings it never won on the motion.

If you need discovery first

Colorado's route is through the affidavit machinery in Rule 56(e) and the court's power to permit supplementation. In practice the response is to swear what cannot yet be presented and why, and to ask for the further proceedings that subsection (d) contemplates.

Bear in mind that Colorado's disclosure obligations run early — 28 days after the case is at issue under Rule 26(a)(1) — so a court will expect the basic material to be in hand. See Colorado's mandatory disclosures.

How Colorado compares

A short checklist

1. Check when the motion was filed against the trial date. Ninety-one days is the floor; a cross-motion is seventy.
2. Find your opposition deadline in the practice standards and case management order — Rule 56 points there rather than setting it.
3. Assume there will be no hearing. Put everything in the papers.
4. Attach sworn or certified copies of everything your affidavits refer to.
5. Show competence to testify on the face of each affidavit — the rule requires it affirmatively.
6. Do not rest on the pleadings. Set out specific facts showing a genuine issue.
7. Be careful what you concede. Under 56(d) uncontroverted facts can be specified and deemed established at trial.
8. If you are the claimant, count 21 days from commencement — which in Colorado may be service, not filing.
9. Consider moving on liability alone where damages are genuinely in dispute.

Where these rules live

• C.R.C.P. 12 — Defenses and Objections
• C.R.C.P. 26 — General Provisions Governing Discovery
• C.R.C.P. 37 — Failure to Make Disclosure or Cooperate in Discovery
• C.R.C.P. 56 — Summary Judgment
• C.R.C.P. 16 — Case Management and Trial Management

This page explains what the rules say. It isn't legal advice, and the response deadline set by the court's practice standards and case management order should be checked directly.