Yet another case about appeal procedure. This one discusses, tediously, the Barassi rule.

An unsigned minute entry granted a motion to dismiss. Plaintiff responded with a notice of appeal, before the Judgment was submitted and signed, and did not file another notice afterward.

Under Barassi, as explained by Craig, a premature notice is okay if no motion is pending, so that “the only remaining task is merely ministerial.” CA1 thinks the “merely ministerial” language a problem since a minute entry can always be changed prior to judgment. It decides that the Supreme Court didn’t really mean what it said and that Barassi applies when there is no motion pending. If there is, “the ruling of the court could change and the remaining task would not be merely ministerial.”

(That means, you might be thinking, that if no motion is pending then the entry of judgment is indeed merely ministerial. But if that’s right then the court has just spent several pages pointlessly chasing its tail. So that can’t be right, can it?)

In any event, since there was no motion pending Barassi applies to save the appeal. The fact that one defendant hadn’t been – and never was – served doesn’t change that; “unserved parties are not ‘parties’ within the rules.”

The dissent disagrees with that. Plaintiff still had time to serve the other defendant when he filed the notice of appeal (he had received an extension of time for service). “This possibility means the final decision could change,” though the dissent does not explain how. 

The majority opinion manages to be over fifteen pages long. One good edit could have saved some of those merely by not saying the same thing more than once. Eliminating the long, irrelevant footnote would also have helped (though there is only one). And the court takes the time to explain that this was a prisoner’s suit against some guards; pop quiz: how exactly does that affect the operation of Barassi?

But the court apparently raised the issue on its own (we’ll assume that the AG’s office spotted it but figured that Barassi applied). Decisions sua sponte tend to look like this – unfocused, at once both naïve and hyper-technical. Craig did say that Barassi was limited to its facts and Barassi was slightly different (the appeal was from denial of a motion for new trial), so perhaps the court was nervous about it; it does “invite the Arizona Supreme Court to further clarify [sic]” the rule, “if necessary.” Courts, though, are much better at responding to issues briefed by litigants than at going it alone.

(link to opinion)

 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)