Changes to how we do things around here: default judgments

As mentioned in a previous post, changes to the code of civil procedure have affected not only the summary judgment, but also how default judgments are procured. Louisiana Code of Civil Procedure now requires sufficient proof to establish a prima facie case to be admitted into the record, before a confirmation in granted. Although it sounds like a nuance, the previous language only required proof sufficient to establish a prima facie case, without requiring it to be put in the record. This was problematic on appeal, since the presumption exists that a prima facie case was made in the lower court upon granting a default. Logically, an appellant that was defaulted has an unfair burden if it must overcome prima facie proof that was not privy to the record. By legislating an amendment to the rules of procedure I think lawmakers took the correct course of action.

For lawyers confirming defaults, be aware that you should prosecute your case like you would any other judgment. That is, by creating a record and submitting documentary evidence and even testimony if possible. Also, it is uncertain whether this change will affect the ability to obtain a default judgment by mail. Despite the change in the rule, the policy at my firm forbids obtaining “mail-in” defaults. Our practice regarding default judgments is, and has always been, to conduct a trial (regardless of how small or short it may be) and produce witnesses and documentary evidence for the record.

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