Party Planning For Tort Lawyers

Here are the first few paragraphs of an article that I wrote for the November 2009 edition of the Tennessee Bar Journal titled "Party Planning for Tort Lawyers."  Rest the rest of the article (and the footnotes) here.

Litigation in a world of comparative fault and several liability involves party planning. Planning a party is hard work. One essential component of the party planning process is determining who to invite, and party planning by committee presents a whole new set of challenges. Everyone agrees that some people must be at the party. Everyone agrees that certain people should not be there. And, while everyone agrees that the party should occur on the selected date, there is often a disagreement about whether certain people should be extended a party invitation.
 
In tort litigation, the original host of the party is the plaintiff, and the plaintiff frequently has a good idea of who should be invited to the party. Competent plaintiff’s lawyers also want the party to occur as soon as reasonably possible.
 
The guests at the party are known as defendants, and they have the right to open the door to (but not admit) other invitees. How? By alleging in an answer or amended answer the fault of a person who has not yet received an invitation to the party. A new decision authored by Judge Holly Kirby of the Western Section of our Court of Appeals makes it clear that Rule 8.03 of the Tennessee Rules of Civil Procedure means what it says and that such allegations must set forth with particularity the facts supporting the allegation of fault of the non-party.[1] A defendant who does not make an allegation with the specificity required by Rule 8.03 faces a motion to strike the defense[2] or a potential loss of the defense.
 
A plaintiff who reads the answer or amended answer and sees a defendant’s suggestion that a party invitation be extended to a non-party does not have to extend the invitation. Plaintiff may determine that he does not want the non-party at the party. If no invitation is extended by the filing of a new complaint and summons, plaintiff knows that the other guests will say all sorts of nasty things about the absent guest, and assumes the risk that a jury will find the uninvited guest at fault. If several liability is applicable, that plaintiff’s damages will be reduced by the uninvited guest’s percentage of fault.[3]

 

Scehduling Orders: Deadlines for Alleging Fault Against Nonparties

        Scheduling orders are wonderful tools that are often overlooked by far too many plaintiff’s lawyers. One of the most important deadlines to put in a scheduling order is a deadline by which the defendant must allege the fault of a person not a party to the action.

       Plaintiff’s lawyers have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of at-fault defendants and the development of evidence against those defendants. 

       Defense lawyers also have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of other at-fault parties, including those who are not a party to the action. 

          Defense lawyers need a reasonable amount of time to conduct their investigation, and one cannot say in the abstract how much time is needed. The relevant factors include whether the defendant had actual notice of the incident complained of in the complaint, whether the defendant’s insurer conducted an investigation, when defense counsel was hired, what information about the plaintiff’s claims was made available to the insurer and / or defense counsel before suit was filed, the specificity of the complaint, the promptness of plaintiff’s response to defendant’s discovery, the availability of plaintiff for a deposition, the  timeliness of efforts made by defense counsel to depose non-party witnesses, etc. That being said, the defense must make a reasonable effort to learn the facts of the case in the discovery process and then must make a decision about whether any non-party can and should be named a non-party at fault in an answer or amended answer.

        The plaintiff should insist, and the court should impose, a reasonable amount of time for this to occur. The deadline should be extended only for good cause shown.

        Why should the plaintiff seek such a deadline?  Some (not all, but some) defense lawyers use late allegations of fault against non-parties as a way to get a trial continued. They delay their allegations of fault against the non-party as long as possible, and then late in the proceedings move to amend to allege fault against a non-party, putting the plaintiff’s lawyer in the position of either facing fault being assigned to an empty chair or a continuance of a trial date. Sure, a judge can deny the motion to amend as untimely, but a deadline for such amendments in a scheduling order increases the likelihood that a court will do so.

        Second, some (not all, but some) defense lawyers will delay the case and delay naming non-parties until after the applicable statute of repose expires as to those non-parties, thus once again leaving the plaintiff with an empty chair. Some plaintiff’s lawyers think that T.C.A. §20-1-119 will protect them from this harm because it extends the statute of limitations for allegations of fault against non-parties named by a defendant in an answer or amended answer. Unfortunately, T.C.A. §20-1-119 specifically provides that it does not extend statutes of repose. Thus, a plaintiff who does not use a scheduling order to force a defendant to identify an at-fault non-party is taking a real risk that the allegation of non-party fault will come after the expiration of the statute of repose. Once again, plaintiff can object to the amendment as untimely, but the argument will be strengthened if a deadline imposed by a scheduling order has expired.

          Some plaintiff’s lawyers resist scheduling orders because they are afraid of having deadlines they won’t meet. This, in my opinion, is a mistake. A scheduling order is the only way you can ensure that your client’s case will move promptly toward trial and that you trial date will not be impacted by a late allegation of fault against a non-party.

          One final point.   A plaintiff’s lawyer who does not move a case forward cannot complain about a defense lawyer who drags his or her feet. Many – far too many – plaintiffs lawyers do not move their cases promptly forward. Sometimes this is due to laziness. Sometimes it is due to the lack of organization. Sometimes this failure to act is due to lack of knowledge – the lawyer does not know what to do next and therefore does not do anything. Sometimes the failure to act is due to the failure to a plaintiff’s lawyer to face a tough question head-on. Sometimes the lack of action is due to the silent recognition that the case has gone bad and the lack of desire to work on a loser.

          All of this points to the need for a thoughtful, careful case acceptance policy. That is a topic for another post on another day.

Suggestion for Expert Witness Disclosure Language in Scheduling Orders

         One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.

          I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:

The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.

       Thus, because a plaintiff ordinarily has the burden of proof on liability, causation, and damages, plaintiff will have to disclose expert witnesses on these issues first. However, to the extent that the defendant asserts an affirmative defense (and thus assumes the burden of proof on that issue) the defendant has will have to disclose expert(s) on the affirmative defense at the same time the plaintiff discloses experts.

        Then, sometime later (I would suggest 30 days) the party without the burden of proof on an issue must respond to the expert proof offered by the opponent by disclosing any expert he, she or it wishes to disclose on the issue. This disclosure may well include a supplemental disclosure of an expert disclosed in the initial round of disclosures.

        So what happens in a car wreck case when the defendant pleads the comparative fault of the plaintiff? To the extent that they both have accident deconstructionists, both would have to disclose at the same time.   Why is that fair?   Because both have the burden of proof – the plaintiff on her claim and the defendant on her affirmative defense. Plaintiff may well determine that no expert is necessary, and thus the defendant should be required to disclose her expert first.   If plaintiff decided to get an expert after seeing defendant's disclosure the second deadline would have to be met by plaintiff.  To the extent they each disclose an expert and the one party’s disclosure gives rise to a new issue not addressed in the opponent’s disclosure, the disclosure should be supplemented no later than the date for “rebuttal experts” stated in the scheduling order.

       As indicated above, I think this is an eminently fair way to handle expert witness disclosures. It permits each party without the burden of proof on an issue to see the expert witness disclosures of the opponent before preparing his, her or its own disclosures.   It does not force a party without the burden of proof to disclose experts without a clear understanding of the opponent’s expert proof. To the extent there are simultaneous disclosures of experts on the same issue, the responses can be supplemented to prevent surprise.

       I encourage all lawyers to use this language (or something substantially similar) in all scheduling orders and to send me a signed copy of the order. I will collect these orders and make them available to anyone who asks for a copy so that these can be used to persuade judges who have not faced the issue before to incorporate this language into scheduling orders.   With a concerted effort, this language will become routine in scheduling orders within five years.