What a Default in Court Means

Sometime ago, I blogged about the perils of ignoring a lawsuit.  The decision we received from the Appeals Court last week underscored the danger of failing to participate in the litigation process.  The appellant made a conscious decision to refrain from participating in the underlying litigation.  He failed to answer the Verified Complaint, he failed to attend his deposition, he failed to attend the assessment hearing personally to offer testimony to counter that of our client.  His counsel did not cross-examine our client at the assessment hearing, nor did he submit a brief regarding the legal issue raised during the assessment of damages.  The appellant also failed to participate in a number of related actions including two companion cases in Middlesex County.  

When a default is entered against a party, the factual allegations of the Verified Complaint are taken as true, and each of the claims against the defaulted party must be considered established as a matter of law.   Multi Technology, Inc. v. Mitchell Mgmt.Sys., Inc., 25 Mass.App.Ct. 333, 334-335 (1988).  "Such is the peril of a default. [Appellant's] failure to answer, or to respond to deposition notices and other discovery requests, deprived [Appellee] of any opportunity to supplement the factual record; the judge was permitted to take into account the fact that Appellant not only defaulted, but stonewalled discovery. See Multi Technology, Inc., supra at 335-336 ("In reaching [her] conclusions, [the judge] was allowed to hear any evidence material and relevant to the claims alleged in the complaint"). Cf. Mass.R.Civ.P.37(b), as amended, 423 Mass. 1406 (1996) (setting forth sanctions for discovery violations). [Appellant] cannot have it both ways."  Erez v. Batrin, 2015 Mass. App. Unpub. LEXIS 1046 (Mass.App.Ct. 2015).

Deciding whether to fight a lawsuit or let a default enter must be a calculated decision based  on the amount of money at stake, the amount of money you will have to spend to defend, whether the judgment could include an award of attorney's fees for or against you and, of course, the merits of your claim.  The Rules of Civil Procedure were amended in 2013 to require that plaintiffs provide defendants with notice of the damages sought prior to an assessment of damages.  However, by the time you receive this paperwork, a default has already been entered against you.  In other words, the only question is the amount of damages that will be awarded - not whether you are liable.  You should consult with an attorney to assist you in making that determination as these factors can be complicated.

The Business of Your Business

     Often times, I meet with clients who are starting their own business and need some advice.  Should they incorporate?  Do they need insurance?  How do they manage their finances?  When I talk to clients about these issues, I like to talk about managing the “business of the business”.  Doing so is not always fun or what we want to do as business owners.  Let’s face it – a painter would rather be painting than sending out bills.  A caterer would rather be in the kitchen than thinking about whether and how to take credit cards.  However, failing to do so can be detrimental to your business.  It is like having a rose bush and never pruning it.  Both will quickly get out of control.  This will, of course, only take more time and cost you more money, than if you had managed it regularly in the first place.

Selecting a Jury

As I sat in court in May and again in October, selecting my seventh and eighth juries for trials, I thought a bit about the process and how odd it must seem to someone who is called for jury duty.  I have actually had jury duty many times and even sat on a jury.  I know that when you are called for jury duty, you watch a video, but I thought I'd give a little bit of insight into what goes on during jury selection.

First, the lawyers receive a copy of the form that you fill out when you arrive for jury duty.  It contains some basic information such as where you live and work, your spouse's job, interactions with the legal system, age and how much education you have had. We get a chance to review those papers before you are chosen for jury duty.

After asking questions of the pool as a whole, the judge will start to "fill the box".  There are two general ways of doing this.  Some judges like to question each and every potential juror to make sure that they are unbiased and able to serve.  One judge shared with the attorneys that he feels that when you speak to a juror and ask them to serve, they are more likely to do so.  Other jurors will put the required number of jurors in the box and then will call up jurors who answered one of the general questions of for whom a lawyer has a question.  In either event, the lawyers end up huddled around the judge.  You may wonder what they are doing.  In all likelihood, they are discussing one or more of the jurors sitting in the jury box.

When your number is called to sit in the jury box, there are a few things that can happen.  If the judge is speaking people before they are seating in the box, then the prospective juror can explain his or her answer to any question and lawyers are given the opportunity then to raise any issues or concerns they have about that juror.  Ultimately, you can either be excused from jury duty by the court or by the lawyers.  The court will excuse a juror for cause -- perhaps there is a language issue, where the juror cannot fully understand English, perhaps the juror knows one of the parties or one of the attorneys or perhaps the juror has some other connection to the facts of the case that make it so he or she cannot be objective.  These are some of the reasons, that the court decides someone is not able to sit on that jury.

Attorneys also get what are called peremptory challenges. These challenges allow attorneys to remove people from the jury any reason or perhaps even no reason, so long as it is not for a discriminatory reason.  For example, the attorney may decide that due to the nature of the case, he or she feels that it would be better if tradespeople (plumbers, electricians, etc.) were not on the jury.  An attorney can use a challenge to remove people of those professions from the jury.  An attorney can remove someone because of where they live or their education level.  You will not know why you are not hearing the case as a juror -- you will just know that you are not sitting on that jury.

Hopefully, this post gives you some insight into what is going on during jury selection the next time you are called for jury duty.

Epilogue:  I wrote this article last week not knowing that today, the Supreme Court heard arguments about a 30 year old case involving peremptory challenges.  Apparently, 20 years after the case was tried, the defendant's attorneys obtained a copy of the prosecutor's notes from the jury from a Freedom of Information Act request (or the equivalent under Georgia law).   This case highlights the problems with peremptory challenges when it is used for discriminatory reasons.