by Mark Johnson

Created on: March 19, 2010

The court system in the United States can be a frightening place, especially to someone unfamiliar with it.  Television is filled with attorneys turning a clever phrase that sways a juror, or subplots running through every trial.  As with police work or hospitals, the reality of practicing law is rarely as exciting as a television drama.

Many cases are settled out of court; otherwise the court system would be hopelessly backlogged.

Criminal cases, that is, cases prosecuted by the government (District Attorney, County Prosecutor, Attorney General, etc.) for which there is a potential criminal fine and/or jail time, are often plea bargained.  The defendant’s attorney works out a deal for the defendant to accept some lesser penalty and not go to trial.  Cases may be dropped for failure to prosecute, or may be dismissed by the judge for a variety of reasons.

Civil cases, on the other hand, may be settled between the parties and dismissed, or thrown out in other ways.  A usually- bad way (for the defendant, the person being sued) is by default judgment.  A default judgment, according to Black’s Law Dictionary, is “a judgment rendered in consequence of the non-appearance of the defendant.” 

This means that a lawsuit was filed, and the defendant was served with a summons – a legal document that states a lawsuit was filed, you are the defendant or one of the defendants named in it, and you are directed to appear before the court on a certain date to respond.  Usually, this would be having your attorney file a document called an “answer,” which answers the claim filed against you.  In Flanary v. Kusha, 173 NW 652, the court said that a summons is “a notice to defendant that an action against him has been commenced and that judgment will be taken against him if he fails to answer the complaint.”

If a defendant fails to answer the complaint by whatever the return date may be, the plaintiff’s attorney will usually file a motion for a judgment in default.  This means that the defendant did not show up and did not file a required response, so he should lose the lawsuit, and the attorney is asking the judge to so rule.  The judge usually rules in the plaintiff’s favor and grants the motion, which has the same effect as far as the defendant is concerned as having been to trial and losing.  Judicial discretion means, among other things, that a judge may not be required to grant a motion for a default judgment, but if no one showed up to contest the lawsuit, why would he not grant it? 

A default judgment may not always be a bad thing for the defendant, under certain circumstances.  For example, if someone is being sued and has no defense – they know they will lose, and fully expect to pay the plaintiff – they may choose this route to avoid hiring an attorney.  It is generally an unwise course of action, but may not be bad in all cases.

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