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Default – How to Easily Lose (Or Win!) a Lawsuit

[Very rough transcript of video]

Hey everyone this is attorney Brian Russ from Brian Russ Law, Inc.  I’m a California lawyer dealing with California cases. And today’s video is on how to easily lose or win a lawsuit.

And so I’ve been waiting to do this video for a while because you see these examples come up in the news every so often about how people easily win or lose lawsuits, because of what’s called a default judgment or I should say it’s a default, and later it gets entered into a default judgment. So you win or lose by default.

And so today, I read the news there’s an example that came up I think just yesterday, is out in New York it was Joe West v. Paul Lo Duca. If you’re a sports fan, you would recognize Joe’s name. He’s one of the most recognizable umpires in Major League Baseball today. You know, people have lots of opinions on Joe, and, you know I think one of my favorite baseball videos involves Joe. And I’m an avid Giants fan. So, you would know that there’s a history between Joe West and Madison Bumgarner, and it’s just a great, you know, it’s a great thing but anyways.

Apparently the way this case worked. Was that Paul Lo Duca said something about Joe West on a podcast Paul’s a former major league baseball player and so he shared an anecdote, and Joe sued for defamation.

Now before I go further into the video I do have some disclaimers I have to share. So the first disclaimer is that this video is not legal advice. This video is just for informational purposes only. This is not to advise you on any case that may be brought against you or how to bring a case against anybody else. It is literally just informational video only. If you need help with the situation with a legal situation, I encourage you, and I’m telling you, you need to retain an attorney to help you with your situation. All lawsuits all disputes are incredibly fact specific and law specific, and one of the key things I want to say about this video is that the example I’m going to be using occurred in New York, it’s a New York lawsuit.

 I’m a California lawyer and so I’m going to be applying my understanding of California law on an example that happened in New York. So the facts may not even line up against the law, because, in my understanding of the West v. Lo Duca lawsuit was that there was, it wasn’t under California law, it was under New York state law.

So again, don’t rely on YouTube videos for legal advice, this is for informational purposes only. Get an attorney to help you with your situation. Additionally, by this video you are  viewing no attorney client relationship forms. And finally, to the extent that this video can be considered an advertisement, you should consider an advertisement I’m an attorney and I sell my services. Part of the reason I do these videos is for you to learn a little bit more about me learn about how I work, learn about, you know, basically look at me and go “Hey, that guy seems alright I’ll hire him to help me with my case.” So again, this video is an advertisement.

And the example at hand. And the purpose of this video is how to easily lose or win a lawsuit and so right I said that the example is we’re using Joe West v. Paul Lo Duca. Lo Duca, the former MLB player had the podcast, had an anecdote about Joe, I’m not exactly sure what it was but there was an anecdote there that Joe essentially said hey that’s false, not only is it false it is defamatory it has harmed me it’s harmed my reputation. And so Joe has filed a lawsuit against Paul Lo Duca. And my understanding of the cases and again this is just after reading a few stories on it this morning, is that essentially Joe filed a lawsuit, and then LoDuca never responded. There was never an answer there was never a reply there was nothing you know again I don’t know exactly the civil procedure, you know, terminology for New York case, but in California if you file a lawsuit to get somebody if you serve them with a summons a copy of the complaint, then they are required within so many days to file an answer and so it sounds like the the analog of New York law, New York Civil Procedure did not occur. And the court entered the default in favor of Joe.

So essentially the easiest way to lose a lawsuit, and I counseled clients on this all the time, essentially, I may get people that call me and they say, “hey I’ve been served with a lawsuit. I got it two months ago, should I do something about it?”, It’s like well shoot yeah of course you should, by that point two months out, that client or potential client has likely already exceeded the amount of time to respond to file an answer. You know and so if you get served with a lawsuit, like, immediately you need to be contacting an attorney to help you with that suit to give you advice to retain somebody to help you with it because there is a short statutory window, where you have time to file an answer. Now a lot of times I understand, you know, people will file an answer, it’s a very vague, general answer where they deny everything and it just gives them, you know, additional time but you know that’s generally how people start these things.

So people you know they’ll say, you know, what is the default? So sometimes what’ll end up happening is you don’t respond, maybe two or three months later. So say you’ve been served a lawsuit. You know it exists, you do not respond, or maybe you don’t know it exists, maybe you weren’t even served but you get a paper in the mail that says something to the effect of, you know, a request for entry of default. A request for entry of default is essentially the party, the plaintiff,  who’s filed the suit the plaintiff is going to the court and saying, “Hey, this guy the defendant never responded were requesting a default judgment.” And the court, you know can take it under advisement and they can, you know, they usually decide, yeah, hey, like, you know, they might file the default against the other party because the other party failed to respond. And that’s my understanding of what happened in the Joe West v. Paul Lo Duca case that La Duca just never responded. And he got served or allegedly served again I don’t know the facts specifically it’s just what I read in the news but you know sound like, you know, Lo Duca was served and West, you know file for default because because Luca never responded and so in that case what ends up happening is, and in this case, you know, West won automatically – the plaintiff wins automatically – the court says yeah you know you did enough you know you’ve, you’ve presented enough evidence, you know, default, you win.

And so, you know, people. I get asked all the time like how can I avoid a default. “How can I, you know, make sure this isn’t an automatic loss?” Well, I mean it’s pretty easy you respond you file the answer. The easiest way to lose a lawsuit is by doing nothing. And generally, oh you know when you do nothing and a default entered, you know, I know in California at least a common tactic is that once the default is entered the opposing party will wait 180 days, or even six months to even try to collect on the default because in California, under our Code of Civil Procedure here there’s a, there’s a way that you can make a motion to set aside a default. You can make a motion to set aside a default judgment. And you can say essentially you know I wasn’t served properly or this was, you know I didn’t respond because of a mistake or I didn’t know what was going on, and the courts generally tend to liberally grant those motions to set aside default because essentially there’s this theory that you know is better to settle a dispute on the merits rather than on a procedural tactic, but again there’s a window of time where you get, you know, I think it’s 180  days or six months or something like that, don’t quote me on it but there’s a window of time in California where you can file for this motion to set aside and so a lot of times what happens is you have plaintiffs who, who went on the motion, or just say they went on the default they get the default and they sit there they’re quiet for six months they wait for that statutory window to pass and then they start collection, you know enforcement proceedings wage garnishment etc. And so you have to be really careful about, you know, again, how do we, how do you avoid default, you respond, you actively engaged in a lawsuit you try to get it, you deal with it.

And so again, essentially, you know, like I said before, you know what to do. Default Judgment is entered against you, you know, again, talk to an attorney gets case, in fact specific information for your case. If for your situation. There may be a window where you can file for a motion to set aside the default, you know, the court, you know, in my experience, what I’ve seen is the court will be likely to do that. If you can, you know, establish that when you weren’t served or, you know you had no actual knowledge of the lawsuit or you had a misunderstanding of what’s going on. But you know, in a case, like where it’s, you know, national headlines where you kind of know that the other party knows they’ve been served and they don’t do anything about they just sit on it, you know, put yourself in the court’s situation. They’re probably not going to sit there and say oh yeah well you know we’ll set aside the default. if the other party had full notice and full awareness of the suit, and they didn’t respond well, that’s kind of on them. That’s their fault. So that’s it for today’s video.

If you need help with a situation, or you want to, you know, you know you need help you maybe you got a default against you and you’re learning what you can do feel free, and if you’re in California again I’m a California lawyer and helping people in San Francisco, Los Angeles, San Diego, Sacramento all of the state, but if you have a you know California case where you have a default judgment entered against you, and you’re trying to figure out what to do feel free to give me a call. My number shown on the screen again Brian Russ from Brian Russ Law, Inc. And thanks that’s it for the video today.

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