Plan B: Preparing For If The Defendant Fails To Show Up In Court

When you sue someone, you expect the person would make a special effort to show up in court to defend against the lawsuit. That's not always the case, however. Sometimes defendants fail to appear for one reason or another, and you need to be prepared if you want this situation to work out in your favor. Here are a few tips for developing and implementing a plan that may help you win your case if the defendant no shows.

Preventing Postponement of the Trial

When a defendant fails to show up for court, one of two things may happen: the judge will reschedule the case or allow it to proceed. The judge will usually postpone the trial if the defendant contacted the court with an acceptable reason as to why he or she won't be there (e.g. death in the family). Another reason the case may be rescheduled is if there are special circumstances that require it. For example, in Utah, judges will issue an automatic stay of 90 days in cases where defendants are in the military. Nothing will proceed in the case until the defendant is contacted or the time limit expires.

However, sometimes judges will reschedule cases if it's not clear whether the defendants knew they were being sued or were adequately notified about the date and time of the hearings. To avoid this, you need to make sure you followed your state's requirements for serving notice to a defendant and that you have the evidence to prove it. This may mean obtaining documents from a process server indicating the professional had contact with the defendant or a video recording of yourself giving the person the paperwork if you served the person personally.

Another reason why the court may reschedule the case absent of any other reason is if your damages aren't specified. Some courts will render a default judgment against defendants who don't show up to court but only if plaintiffs have requested damages in fixed amounts (e.g. $10,000 in property damage). If there is a request for unspecified damages (e.g. pain and suffering), the judge will either postpone the case until the defendant can attend or require you to withdraw your complaint and submit a new one that includes damages with specific numbers.

To prepare for this eventuality, be sure to file your lawsuit with exact numbers. A personal injury attorney can help you determine how much to ask for. However, you can also find information about how to calculate damages online. For instance, you can come up with a number for pain and suffering by multiplying the amount of your tangible damages (e.g. medical bills) by a number between 1 (lowest) and 5 (highest) that represents the severity of your discomfort. Just be sure the amount you come up with is reasonable for your case; otherwise the judge may be unwilling to enter a default judgment against the defendant for what he or she considers an irrational amount.

Preparing Your Case

If the judge chooses to let the case proceed without the defendant, then he or she will typically require you to make your case for damages. You'll need to give a truncated version of the events that led to the incident and provide easy-to-follow evidence as to why the defendant is liable for your injuries, so develop a type of elevator speech that gives the highlights of your case. Although you may have witnesses with you in court, it's a good idea to have notarized statements of their testimony in case the judge wants to review the case in his or her chambers rather than have people get up and testify.

Some judges require plaintiffs to submit requests for default judgments before they will enter one against the defendant. Have the relevant form filled out beforehand so you can give it to the judge right in the courtroom or file it with the court clerk on your way out of the building. You will still have to send a notification letter about the request for a default judgment to the defendant. However, being prepared in this way will save you some time. If the court feels your case is strong enough, it will typically approve the request. If not, you will receive a notice that the court case has been rescheduled.

For more information about this issue or help preparing your case, contact a personal injury attorney.