Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law

Reminder: In Court (as in life) the Worst Thing You Can Do Is Not Show Up

The Judicial Duel. The Plaintiff opening his C...
(Photo credit: Wikipedia)

As long time (and possibly recent) readers of Construction Law Musings know, I am a Virginia Supreme Court Certified Mediator. In that capacity, I spend quite a bit of time sitting in general district court courtrooms in places like Goochland and Caroline Counties “court sitting” awaiting a referral from the judge of a case with parties ready and willing to take advantage of the mediation process.

As I sit there wearing my mediator “hat,” I see case after case be called for the first return date. Without fail, several cases are called where the defendant fails to appear after being served with process. There are even a case or two where the plaintiff (the party that picked the return date in the first place) fails to appear. In the first instance, where the defendant doesn’t appear, the judge almost inevitably enters a judgment for the amount sued for by the plaintiff. In the latter instance, the case is dismissed without prejudice to the plaintiff with a shake of the head by the judge at the wasted time and filing fee. This post focuses on the first case.

As I said previously, if the defendant fails to appear, the Court enters a judgment by default, taking everything the plaintiff says as true. This means that the defendant doesn’t get a chance to tell his or her story. The defendant is stuck with whatever the plaintiff says happened, whether the defendant would agree with the plaintiff or not. Even m ore damaging for the defendant that does not appear, that defendant doesn’t get notice that a judgment was entered, likely until the collection paperwork shows up at their home or place of business, and by that time it’s too late and a court won’t discuss the merits of the case, just whether the judgment was entered. Throw in the fact that failure to appear generally precludes settling or taking advantage of your friendly neighborhood mediator, and the situation looks even worse.

In other words, if you are served with papers, you should appear in court even if you agree at least in part that you’re liable for the damages. By appearing, you open up possibilities from mediation to trial to a payment plan. Failure to appear only results in one possible outcome, judgment. If you appear, your local construction (or other specialized) attorney can help you out. If you don’t, there is little or nothing he or she can do to help.

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