default - civil federal court
The judge placed my case into default a few days before the trial & vacated the trial date. The judge stated in the default paper that my attorney did not file electronically to the court , he submitted manually his response to the court, The judge denied it for being late. The judge also stated my attorney had 4 months to registered & to set-up electronically as required by federal court . In a few days the judge will hold a hearing on the damages that the plaintiff is asking for At that time I cannot talk or defend myself at the hearing.
I sent an email to my attorney to file a motion asap to set aside the default -he did not respond to me. I then spoke to him by phone in which he said he cannot file to remove the default- there is nothing he can do at this time but wait for the judge to determined the damages.
Please what can i do ??? my hearing will be in 7 days
civil case in federal court in L. A.
2 Answers from Attorneys
Re: default - civil federal court
I am very surprised to learn that a federal judge would punish the client for the sins of the attorney as you have described. Such a ruling might well be set aside on appeal, but in the meantime they will be able to collect their judgment. You may well have a malpractice case against your attorney if he really, as it appears, caused a default through his failure to follow the court rules. You could attend the hearing and plead to the judge. It seems terribly unfair.
Re: default - civil federal court
If this federal civil case is this close to going to trial, I assume you have been working with your attorney on this case for over a year. If his court pleading was bounced solely because it was not electronically filed and not because it was deficient on the merits, I agree that it seems harsh to visit the punishment on the client. (It is not clear from your question whether the paper was untimely filed or deemed untimely filed since not electronically filed.) In any event, the electronic filing rules are relatively new and maybe the court is trying to make an example of your attorney to put the fear of God into the rest of us. That may be a ruling that the U.S. Court of Appeals for the Ninth Circuit would overturn on appeal. (You have an appeal as of right to the Ninth Circuit.) Perhaps that is your attorney's strategy at this time.
I would be reluctant to second-guess your attorney, who should be well motivated to protect your interests, since he is otherwise looking at a malpractice claim from you. Cooperate fully with your attorney and attend the hearing and stand by to provide whatever truthful testimony you may be allowed to present, if your attorney can change the judge's mind.
If a judgment is entered against you, it can be appealed, and you can obtain a stay of execution of the judgment (assuming it is a money judgment), by posting a supersedeas bond on appeal--and sometimes the court will allow you to substitute an irrevocable standby letter of credit. (Both of these will cost you something, but not as much as having to pay the full judgment immediately.)
If you believe that your attorney has abandoned your case, should retain another attorney ASAP. But if he is still communicating with you and assures you that he will follow through with an appeal, if necessary, I think your best bet is not to change horses in midstream.
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