A Tale of Three Cases

By Chief Judge Kenneth M. Switzer, Nashville

The Court uses scheduling orders to establish the pace in all cases headed for a hearing. We understand that litigation can be “the worst of times” when circumstances beyond your control stymie the preparation of your case. It is considerate when you let us know when things go wrong; it can be downright unpleasant if you do not.

Consider the three real cases below.

Case number one: A critical expert witnesses failed to appear at his deposition, despite being subpoenaed. There was no possibility that this individual’s deposition could be re-scheduled and a transcript made before the scheduled hearing. Within just a few days of the missed deposition, the attorneys jointly moved the Court for a continuance, which was granted.

Case number two: A physician refused to be deposed because he continues treating the employee, who is also representing herself in her workers’ compensation case. The physician did not want to be deposed with his patient present. Wisely, defense counsel did not conduct the deposition. Instead, knowing that a status conference was only four days away, the employee and defense counsel promptly explained at the conference what happened and why they needed relief from a scheduling order to complete the medical proof. The Court granted their request.

Case number three: Counsel participated in a scheduling conference, which the Court memorialized in an order. Then, for unknown reasons, employee’s lawyer took no action to advance his client’s case – no written discovery, no depositions, no briefs or other pleadings – just nothing. Defense counsel, realizing that he was certain to prevail since the employee bears the burden of proof, likewise let the case lie dormant. A day before the compensation hearing, defense counsel emailed the judicial assistant to tell the Court they won’t need the hearing. Upon learning he needed to file a motion for continuance, he did so. The Court roundly denied the motion and referred both counsel to the Penalty Unit for failing to comply with the scheduling order. Monetary penalties followed.

Thumbs-up to the attorneys and party in cases one and two. They all took relatively swift action when they realized that, despite their best efforts, they would not be able to meet a court-ordered deadline. The judges in their cases – former trial lawyers who well-remember the anxiety they must’ve felt – granted their requested relief because they acted reasonably and quickly sought a remedy to their problems.

As for case three, the problem is self-evident. An email to court staff one day before a hearing telling the Court you will not be there because you did not prepare won’t suffice. The judge’s denial order of their requested continuance summed it well:  “Such dereliction of the parties’ obligation to comply with this Court’s order is unacceptable, and the Court will not allow the parties to exonerate themselves of their malfeasance by allowing unmerited additional time to do what they should have in the first place.”

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