THIS DECISION HAS BEEN VACATED

On appeal from arbitration you must file a list of “witnesses . . . intended to be used at trial” (Rule 77). What happens when you leave one out?

Cosper, defendant in a motor-vehicle case, lost at arbitration. On appeal she hired an expert, whom she named in a supplemental disclosure statement filed a couple of months later, which was a couple of months before trial. Plaintiffs moved to strike it; the trial court granted the motion, ruling that a witness could be added only for good cause.

Division One accepted special action on a “pure issue of law” to announce the following: “when a party makes seasonable, good faith disclosure of new evidence during the discovery period allowed by [Rule 77], preclusion is not warranted absent a showing of prejudice that cannot be cured by less drastic means.”

The court then spends eight pages of policy analysis (only a couple of cases are cited) justifying this. Basically, it says that the 80-day period allowed for discovery after appeal isn’t  for making the arbitration case ready to meet the Rules of Evidence; instead, it’s for whatever additional discovery you want. Otherwise, you see, the rules’ delicately-balanced mechanism of expeditious-justice-plus-right-to-trial would topple. So why does the witness-list rule exist? “Under this approach, litigants who ignore the need to prepare for arbitration may find themselves with insufficient time to prepare for trial.” (Yes, that’s what it says. Sometimes even we can’t explain ‘em, we just report ‘em.)

The court figures that Plaintiffs here had enough time (even though the trial court made no such finding), especially since the trial was scheduled as number two on the calendar, which means – well, it isn’t entirely clear what the court thinks that means. It suggests, but doesn’t exactly say, that that gives Plaintiff more time to get an expert of her own ready; the reason it doesn’t exactly say that, presumably, is that no one can know whether that’s true.

We would like to think that the court didn’t realize what was going on here. But a footnote reveals that it did. It knows perfectly well that some insurance companies defend arbitrations on the cheap, gamble on getting a good result anyway, appeal if they don’t get one, and only then get serious about the defense. The footnote approves of the practice: “For example, some expert witnesses may rightly be perceived as overkill at some arbitration hearings.” Read that as “any” expert and you have the script some companies follow (not all, by any means, but too many – and all are happy to go that route unless counsel talks them out of it). Apparently we’ve forgotten the days when defendants didn’t bother even to show up for arbitration and the rules had to be re-written. Now, showing up not to defend the case but just to do some discovery is good enough.

This was needless. The court mentions but puts no weight on the fact that these Plaintiffs have themselves to blame. In a joint pretrial memorandum filed after appeal the parties both proposed a long period of “expert discovery.” (Plaintiffs don’t seem to have gotten upset about that until the trial court wrong-footed them by giving them a trial date five months earlier than they wanted.) This was a waiver case: even assuming that Plaintiffs’ position is right, they waived it by agreeing to discovery beyond it. But the court doesn’t mention waiver even though an overlapping panel issued an opinion the same day (State v. Campos) talking at length about waiver in many situations and coming up with a very broad (and somewhat unsettling) rule – in essence, anybody (including the State) can waive anything. Instead, it goes out of its way to set precedent that, right or wrong, this was not the case for.

(link to opinion)