Day on Torts
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.