June 1, 2012

We are finishing up our discussion of a civil case that started with a criminal act. The victim died of a gunshot wound, but the suspect, her boyfriend, was not tried until 25 years later. A jury acquitted the man, but the family remains convinced that he is responsible for her death. So, the family filed a wrongful deathlawsuit against him — and the family prevailed.

But the defendant had not answered the summons and complaint, nor had he shown up for the hearing. The court entered a default judgment of $6 million — $2 million for each of the victim’s children — and the family thought they could collect the award and that would be the end of it. A few weeks ago, though, they found themselves back in court.

Law students will tell you that civil procedure can be dry. Practicing lawyers will tell you that cases rise and fall on procedural matters. The defendant is claiming that he never received the summons and complaint.

The plaintiff, however, says the process server visited the defendant’s home a few times. The plaintiffs’ attorney mailed a copy of the summons and complaint to the defendant’s home, too. And, the plaintiffs’ attorney published a notice and even notified the defendant’s attorney about the claim.

At the hearing, the judge made just one comment: She said she thought a reasonable person would find the notice to the defendant’s attorney to be proper. Whether the defendant’s claim has merit will be decided by the judge over the next couple of weeks. In the meantime, the family adds weeks to the 31 years they have waited for justice.

Source: Pioneer Press, “Barbara Winn case: Foster had to be aware of suit, lawyer argues,” Richard Chin, May 30, 2012


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