Strategies for Making Them Stick . . .
and for Making Them Go Away
ERIC B. LEVASSEUR
The author is with Hahn Loeser & Parks LLP, Cleveland.
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
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 docu-
ments introduced into evidence. After each side presents clos-
ing 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.
These ways of reaching Judgment Day share a common
thread: A plaintiff and defendant meet on common ground, trade
their best intellectual blows, and accept the judgment handed
them by a judge or jury. Cue the inevitable appeal.
By comparison, obtaining a default judgment (to be technically accurate, a judgment by default) is a decidedly different
process. Instead of coming at the end of the battle, a default
judgment comes before it was ever joined. With no forces engaged, the full story possibly is never told.
Not only is it a different process—let’s be honest—it is likely
much less interesting. Few interesting war stories begin with a
plaintiff moving for a default judgment.
But there is no denying that default judgments play a critical
role in modern litigation. For a plaintiff, it is a powerful tool:
compelling the defendant’s timely response to the plaintiff’s