This comes from New York Civil Law, another Blawg.
In McKenna v. Connor, the Appellate Division, Third Department upheld the trial court’s dismissal of the plaintiffs’ action based on failure to prosecute. The dismissal was based on the plaintiffs’ attorney’s request for an adjournment 11 days before trial. Four days later, the Justice denied the plaintiffs’ request and told the attorneys that the trial was to proceed as schedule. On the day of trial, the plaintiffs’ attorney again request an adjournment based on prior engagement and that an expert could not appear to testify. The trial court denied the request and granted the defendants’ motion to dismiss the complaint.
Notably, the Third Department observed that the trial date was set a year in advance and the plaintiffs’ attorney did not explain why another attorney in the plaintiffs’ firm, who was evidently familiar with the case, could not act as trial counsel. The plaintiffs’ attorney also failed to explain why the expert was contacted only one month before the trial when it was scheduled one year in advance.
This decision is a cautionary tale to us all that Judges are tired of litigators ignoring their orders and trial schedules. I have seen several Judges visibly upset when litigators ignore scheduling orders, thinking that they can always get an extension.
I’m sure someone out there is asking: what the heck (yes, I said “heck”) does this have to do with No-fault. As you know, No-fault trials are expert intensive. The vast majority of trials arises out of necessity disputes. The rest are IME no-show, EUO no-show, Fee-Schedule, Policy issues, Fraud, and some others I don’t recall at the moment.
That being the case, every day Defense attorneys (and occasionally Plaintiff attorneys) ask that the case be marked “application” because of scheduling issues with their doctors. More often than not, the doctor is booked for another county or with another firm in the same county. When you have a universe of about 8 doctors, this is inevitable and I’ve seen more than a few Judges voice their frustration.
Since the volume of No-Fault cases is staggering, its understandable that such problems would arise and from what I understand Defense firms are doing the best they can with limited resources as are Plaintiff firms. This is just an observation, and should not be construed as a call for change or petty whining.
moving on
I’m not sure why the Court would require that another attorney with the firm who was familiar with the case actually try the case. Being familiar with a case or even having a perfect recollection of the facts and law of a case does not make one qualified to try the case. Every client, whether it be a insurance company or an injured party wants the most qualified attorney to try their case. To penalize a client because an attorney is unavailable seems somewhat prejudicial. While the Court’s seems to hinge its decision on a “lack of an engagement letter,” as is its right, it seems to be an awfully harsh penalty for a minor infraction.
Finally, I understand that this case came from the Supreme Court, which might as well be another universe. It’s an entirely different situation where you are in front of the same Judge for the duration or majority of a case than being in Civil Court and having the Trial Judge first see the case and its litigants the day of trial.
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