A default judgment can be entered against a defendant in a lawsuit after the defendant: (a) fails to timely file with the court papers that are legally sufficient to constitute an answer to the lawsuit or (b) fails to appear in court for trial or an important hearing.
In order to persuade the judge to give you a second chance to prove your case, you must demonstrate that: (a) your default was not intentional or the result of conscious indifference to the lawsuit, (b) you have a meritorious defense which, if proved at trial, would alter the outcome of the case, and (c) giving you a second chance to prove your case would not unduly prejudice the plaintiff.
The type of evidence needed to prove that your default was not intentional or the result of conscious indifference to the lawsuit will, of course, depend on the specific facts of your case.
If, however, you were self-represented (did not have an attorney) when the default judgment was entered, you will want to hire an attorney. Your request for a second chance to prove your case will be much better received if the judge knows that you’ve hired a professional and are no longer trying to “go it alone.”
Likewise, if you were represented by an attorney when the default judgment was entered, you will want to discharge your current attorney and hire a new attorney. After all, a request that you be given a second chance will have much more credibility coming from an attorney who is new to the case, as the judge who signed the default judgment may not be too pleased with the performance of your current attorney and may be skeptical of any representations your current attorney may make regarding the reason for the events that led to the default.
In any event, hiring an attorney, or hiring a new attorney, as the case may be, will suggest that you are taking the lawsuit seriously and, by implication, hopefully suggest that whatever led to the default judgment was not caused by your intentional conduct or conscious indifference to the lawsuit.
Assuming that you have a meritorious defense to the lawsuit, proving the existence of that meritorious defense should not be too difficult for your (new) attorney. Remember, however, that in court, there is a huge difference between the existence of a “fact,” on the one hand, and, on the other hand, introducing admissible evidence of that fact.
You should expect that your opponent, the plaintiff, will attempt to challenge the admissibility of your meritorious defense evidence. Thus it is important that your intended evidence is able to withstand all of the objections a determined plaintiff’s lawyer can find in the Evidence Code.
Lastly, you will be required to prove that giving you a second chance will not unduly prejudice the plaintiff. Because giving you a second chance is — by definition — prejudicial to the plaintiff, your (new) attorney will need to use the facts of your case to convince the judge that any prejudice to the plaintiff is not “undue,” that is, excessive in the context of your case.
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