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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In Jefferson Parish suit resident alleges she was injured at Bed Bath & Beyond.

Recently reported by the Louisiana Record, Bed Bath & Beyond is being sued by a customer who was alleges she was injured while shopping at a store when boxes fell on her head. The article also gives details that the New Orleans based law firm is representing the plaintiff in the 24th Judicial District Court of Jefferson Parish before the Honorable Judge Ross LeDart. Given the conservative reputation of the venue I’d rather be on the defense side of this case. The articles also notes that the plaintiff is seeking an”unspecified” amount of damages, which is the standard form of a Louisiana pleading which doesn’t allow for a monetary amount to be included but rather a “prayer” for damages which are “reasonable under the circumstances.”  This leaves open the possibility for the defense to file a removal action to federal court, which is another standard practice, and what I would do if I were defending the case. In any event, this is just the inception of the case and anything could happen in time.

Changes to Louisiana Code of Civil Procedure: Summary Judgment

Some of you may already be aware of changes to Louisiana Code of Civil Procedure article 966 governing summary judgments. On its face, it appears that evidence is “deemed admitted” when it is submitted in support or in opposition to the summary judgment, and which is not addressed accordingly. The draft copy of the law states “objections to evidence in support of or in opposition to a motion for summary judgment must be raised in memorandum or written motion to strike stating the specific grounds therefor.” At this point, we can only guess as to what the practical and procedural implications will be.

The other notable change to article 966 is in subpart B(2), providing that in the event summary judgment is denied the court “should provide reasons for the denial on the record, either orally upon rendition or in writing sua sponte or upon request of a party within ten days of rendition.” Although the impact of this provision is also uncertain, it appears to aspire towards clarity. All of these changes became effective on August 1, 2013 and the Louisiana Legislature website already reflects these changes in the text. As always, your questions, comments, and observations in the comments are appreciated.

Sometimes it’s the little things

If this blog has any readers, then it should be evident that I’m big on handing out example forms. I will admit, the previous forms have been more complex and absolutely do not substitute actual legal advice; however sometimes its the simpler things that matter. A colleague asked me for a sample motion to reset the other day. So, if you’re new to the practice or just curious, here is an example form of a motion to reset.