In Lehman Capital v. Lofland, read opinion here, the Delaware Supreme Court determined that dismissal of a complaint with prejudice was too harsh a penalty, based on the facts of the case, for failure to comply with a discovery order and related pre-trial failings. After recounting an almost nightmarish pre-trial morass of missed deadlines, difficult client relationships, and lack of pre-trial preparation, Delaware’s high court determined that less punitive sanctions would be more appropriate. The Court also provided specific examples of other less harsh penalties that the trial court could have employed. The Court held that sanctions were appropriate for failure to comply with the rules of discovery and lack of compliance with orders of the court, but there was an absence in the record of sufficient willfulness or conscious disregard on the part of the client as opposed to counsel.

The Court emphasized the distinction between failure to comply with trial court orders that are based on the "willful or conscious disregard" of the client–compared with lack of compliance due to omissions of the lawyer. The case was remanded with instructions that the trial court enter judgment in the amount of an "offer of judgment" (that was made but not replied to by the plaintiff). In addition the Court, based on Superior Court Rule 37(b)(2) ordered the trial judge to award attorneys’ fees to the defendant, including the fees for the appeal, and that the trial judge should determine what portion of those fees should be paid by the client and what portion should be paid by the attorney.