Marquez v. Ortega (CA1 2/28/13)

 We love to blog these cases about why you, too, could need malpractice insurance.

Plaintiff sued for her husband’s wrongful death, represented by counsel in Arizona and California. The parties established and continued discovery/disclosure deadlines several times. Plaintiff blew the last deadline for disclosure of witnesses and experts and then tried to move to extend it; the trial court denied that. Plaintiff moved for rehearing; the court denied it and denied a “culprit hearing” (to establish whether the fault was the lawyers’ or the client’s). California counsel blamed Arizona counsel and got a new one, who filed a disclosure of witnesses and experts anyway; the trial court struck that. The case went to trial; Plaintiff lost; she appealed the discovery rulings.

She made two arguments: the delay was harmless since no trial date had been set and the court should have held a culprit hearing. The Court of Appeals affirms.

The first argument was based on Allstate v. O’Toole (1995). Those who’ve been around long enough may remember that one. It was the case in which Tom Zlaket told us that the Zlaket Rules would not, after all, radically transform Arizona practice, contrary to the prognostications of “expert” lawyers and judges and article writers and CLE speakers for many months before the rules were adopted. Under Allstate “good cause” in Rule 26 incorporated the no-harm-no-foul approach applied to the discovery rules (and which was promptly plugged expressly into Rule 37). So the civil law continues to coddle the lazy, the sloppy, and the stupid; little wonder that their ranks swell. We do this, you see, to “protect” the clients – protect them, that is, from good lawyering.

But we digress. In Allstate a failure to make timely disclosure was harmless because there were some extenuating circumstances and no trial date had been set. Here there was really no excuse and the vogue in Maricopa County is now to set a trial date only after discovery is finished so that point is less relevant.

Whether a culprit hearing is necessary depends on “the circumstances in general” (that’s a wonderfully clear and coherent factor, don’t you think?), the type and severity of the sanctions, and the trial court’s knowledge of the facts. This trial court knew that the lawyers were the culprits but didn’t order a “dispositive sanction,” i.e., dismissal, so he didn’t need a hearing. Why ordering a trial without witnesses and experts wasn’t in this case dismissal by another name isn’t clear.

(link to opinion)