This is how it's done.

There will always be a type of law, a specific case, or a specific fact that seems to get very little attention, simply because that is how it has always been done.  I’ve seen it throughout my time as an attorney.  I haven’t been practicing 30 years; only a little over three.  But, in those three years, it has been astonishing how many times I have been told “this is the way its done.”  It is difficult to stand up and question why because lawyers are trained in the method of ‘stare decisis’, a latin term that means, stand by things decided.  Standing up to question things decided, rather than by them, is a risky move in life and in law.  It paints a target on your back and forces you to paddle upstream, but it can pay off in the long run.

When I defended a foreclosure case in law school during the housing crisis, and the bank didn’t have the promissory note attached to the lending documents, I was told “this is how it’s done.  When I questioned the practice of dismissing domestic violence cases simply because the victim did not want to testify, defense attorneys complained, “this is how it’s done.”  When someone told me that a default judgment motion is almost never granted, but I filed it anyway and it was granted, by then I knew this is how it’s done is trumped by this is how we do it. No, not the song from 1995 by Montell Jordan.  Although that is a good song. 

Only after researching the law and finding the black and white text can any lawyer truly be sure that this is indeed how it is done.  One such topic of law is default judgments.  In New Mexico, there are a number of cases which describe the process of a default judgment.  And there are also rules about how and when to file it.  But what many attorney’s probably don’t know, is that a default judgment and an entry of default are two different things. An entry of default is: “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.” Rule 1-055 NMRA. The judge doesn’t even decide it.  But it’s not over.

After the entry of default, if there are unliquidated damages (paid and suffering) then a hearing must be set to determine those damages.  And then a default judgment can be entered.  See DeFillippo v. Neil, 51 P.3d 1183 for a case that explains the process in more detail.  What an amazing advantage.  The plaintiff no longer needs to prove liability.  No questions about what the plaintiff was doing.  Only questions about how bad they were hurt.  Now a default could always be set aside, and usually will be as the above case details, but there is always a chance it won’t.

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