As all civil litigators know, a “default judgment” occurs when a plaintiff wins her case because the other side “defaults.” In other words, the defendant has notice of the lawsuit and does not bother to defend itself for one reason or another. It’s a pretty extreme outcome. One side loses the lawsuit without any finding that the loser actually did anything wrong (aside from failing to show up).
What can civil litigators do to try to keep a default judgment from being vacated by the trial court or on appeal?
The first, most obvious step is to make sure the defendant is properly served; the most typical and compelling reason to vacate a default judgment is defendant’s argument that she did not have any knowledge of the lawsuit. This will be the go-to argument for many defendants in the face of a default judgment if they can cobble together evidence to support the claim though such claims do not always win the day. In the linked case, the trial court basically held that the default judgment loser was a liar and the Court of Appeals deferred to the trial court’s determination on that point.
Also, a default judgment winner must take great care and pay attention to detail in response to any subsequent motion to vacate a default judgment. The default judgment winner may be tempted to short-change this process. She is appearing before the court that recently granted a default judgment and she might feel over-confident that the court will stick to its guns and reject vacating its own recent decision.
However, there are serious due process issues raised by default judgments. A trial court might be curt and cavalier in standing by its earlier default judgment. But, because a court of appeals may give substantially more scrutiny, the default judgment winner might want to bulk up her efforts before the trial court even if she is extremely confident of success. In Amundsen, the Court of Appeals held, “The district court’s failure to make findings on Great Glory’s request for relief under rule 60.02(a) left a record that is insufficient for us to conduct effective appellate review.”
Civil litigators need to recognize that a district court’s “failure to make findings” is often the fault and responsibility of the lawyers in the case. The lawyers in the case can and should provide the district court with a road map — often literally drafting proposed findings of fact, conclusions of law, and proposed order — to help the district court meet its burden, by which I mean both its workload and its legal obligation.