Tampa, FL asked in Immigration Law and Personal Injury for Florida

Q: Why would a plaintiff attorney agree to set aside clerks default for personal injury case?

2 Lawyer Answers
James L. Arrasmith
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  • Immigration Law Lawyer
  • Sacramento, CA

A: In a personal injury case, a clerk’s default might be entered if the defendant fails to respond to a lawsuit within the time prescribed by law. However, there could be several reasons why a plaintiff's attorney might agree to set aside a clerk's default:

Fairness and Merit: The plaintiff’s attorney may believe that everyone deserves their day in court and that cases should be decided on their merits, not on procedural technicalities. If the default was entered because of an honest mistake or an excusable delay, the attorney might agree to set it aside in the interest of fairness.

Mutual Agreement: Sometimes, setting aside the default can be part of a larger negotiation between the parties. The defendant may have approached the plaintiff with a settlement offer or other terms that are favorable to the plaintiff, which may make it strategically advantageous to agree to set aside the default.

Avoiding Appeals: If a default judgment is perceived as procedurally unfair or if there's a substantial chance that the default would be overturned on appeal, the plaintiff's attorney may agree to set it aside to avoid the time and expense of further litigation.

Judicial Efficiency: Courts generally prefer to resolve cases on their merits rather than on procedural grounds. A plaintiff's attorney may set aside the default to align with this preference and to avoid potential complications or delays that might arise if the court is inclined to set aside the default on its own motion.

Professional Courtesy: Sometimes attorneys extend professional courtesies to one another, especially if the attorney representing the defendant is known to the plaintiff’s attorney and has a reputation for being responsible and competent. If the missed deadline was an honest oversight and not a pattern of behavior, the plaintiff’s attorney might agree to set aside the default.

Public Perception: In some cases, especially those that attract public attention, the plaintiff's attorney might set aside a default to avoid appearing overly punitive or aggressive, which can influence public perception of the case or the parties involved.

Legal Strategy: The plaintiff’s attorney might believe that their case is strong and that they can win at trial. Setting aside the default might also give the attorney additional time to prepare the case or to gather more evidence to strengthen their position.

Potential Counterclaims: The defendant may have counterclaims that could be asserted if the default is set aside. If the plaintiff's attorney assesses these counterclaims as weak or without merit, they may prefer to address them directly rather than risk the defendant filing a separate lawsuit.

Judgment Collectibility: Even with a default judgment, collecting on that judgment can be challenging if the defendant has few assets or protections against judgment. If the defendant is willing to negotiate a payment or settlement, it may be in the plaintiff's best interest to set aside the default to facilitate that outcome.

In all these scenarios, the decision to set aside a clerk’s default is strategic and is typically made with the plaintiff’s best interests in mind. The plaintiff’s attorney will weigh the pros and cons of setting aside the default, including the strength of the case, the likelihood of a better or faster resolution, and the preferences of the client.

Terrence H Thorgaard agrees with this answer

Tim Akpinar
Tim Akpinar
  • Little Neck, NY

A: One possibility is that it wasn't properly entered. If it's a fed case, the court could set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b). Good luck

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