Default Judgments: Strategies for Making Them Stick . . . and for Making Them Go Away

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This was it. The moment I had been waiting for. Three years of law school. Passing the bar exam. My arguments were meticulously honed, my notes neatly organized. I was a lawyer, on my way to federal court to argue my first motion.

The motion in question? An unopposed motion for default judgment.

Now, I knew the motion was unopposed. And I knew it was a default hearing. But in my mind’s eye, that default hearing was going to generate the same edge-of-your-seat drama as the courtroom scenes in A Few Good Men.

Suffice it to say, expectation did not meet reality that day. But thanks to a judge who took pity on a wet-behind-the-ears first-year associate, I managed to make a record without too many gaffes. The court granted the motion, I secured a $120,000 judgment for my client, and I was on my way.

The five-page transcript from that hearing remains in my desk today. I keep it as a small reminder of my first day in court. Yet, it also serves as a continued reminder of the importance of the default judgment process.

“Judgment Day.” The phrase conjures images of opponents locked in battle, of a plaintiff and defendant joined in the fray. Opening statements will be made, witnesses called, and documents introduced into evidence. After each side presents closing argument, the jury renders a verdict, declaring a winner and a loser. The court then enters judgment and brings the war to an end.

Or perhaps the parties never reach trial. Their dispute is resolved on a contested motion for summary judgment. The parties have an opportunity to fully brief their respective positions. A motion and memorandum in opposition will be served, followed by a reply brief (and, increasingly, a surreply). After a small forest has been killed, a neutral judge will sift through the competing facts and authority, and either grant or deny judgment.