In October, I wrote about How the Practice of Law is Like the NHL. This article was about how rule changes in the practice of law, and changing skill sets in the NHL have made finesse and skill more important than brawling. Recent experience has shown that this trend continues in law, and that Judges hate “gotcha games.”
Brett Myers and I recently sat through a trial docket call in County Court at Law No. 1 in Dallas County. While waiting for our turn, we watched Judge Benson make two interesting rulings during a pre-trial hearing for the case ahead of us.
First, Judge Benson ruled that at trial, Defendant could not call as witnesses any of the twenty-three doctors it had recently disclosed. Interestingly, Defendant’s attorney had added the doctors to Defendant’s disclosure responses forty-five days before trial, which is timely under the Texas Rules of Civil Procedure. It did not come out during the hearing whether Defendant’s tardiness was a mistake or was intended as a “gotcha,” so as to not allow Plaintiff to conduct discovery on these witnesses.
Either way, the Judge sustained the Plaintiff’s objection to the witnesses, and held that this late disclosure caused unfair prejudice to Plaintiff. In her commentary from the bench, Judge Benson said if there had been a timely supplementation of one or two witnesses, it would have been okay, but such a late disclosure of this amount of witnesses simply was not fair.
Second, in a turn of the tables, Judge Benson ruled against Plaintiff for similar reasons. Defendant’s attorney had produced a video made by Defendant’s expert late according to the rules. Although the video was produced late according to the technical letter of the law, it was produced eight months before trial.
Rather than taking any action to remedy the tardiness issue, Plaintiff’s attorney waited until a week before trial to object to the video – a clear attempt at a “gotcha.” The Judge denied Plaintiff’s motion to exclude the video, and allowed Defendant’s expert to use the video. Judge Benson stated that Plaintiff’s attorney had been in the possession of the video for so long that Plaintiff could not have been prejudiced, and that if Plaintiff felt it was prejudiced, it should have taken action during the intervening time period.
I think there are two lessons to be learned from this experience: 1) Supplement your discovery responses early and often; and 2) If you have a problem, take it up with the Court as soon as possible and do not sit back to try to wait on a “gotcha” ruling from the Court, because you may not get it.
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