In Christian v. Counseling Resource Associates, Inc., Del. Supr., No.  460, 2011 (Jan. 2, 2013) (revised March 26, 2013), the Delaware Supreme Court promulgated a new standard for trial courts to apply in determining what the penalty should be when a pre-trial deadline is not met by one of the parties in the case.

Why this decision is important: This is one of several cases decided on the same day by Delaware’s High Court, addressing the trial court’s dismissal of a case due to a missed pre-trial deadline.

New Standard Announced:  This decision modifies the previous standard announced in a 2010 Supreme Court opinion. The new standard that trial courts in Delaware need to follow henceforth to determine the appropriate penalty when a pre-trial deadline is missed, based on the strong public policy in Delaware to decide cases on their merits, was explained as follows:

This is one of four appeals that the Court has considered together because, in each case, the plaintiff’s claims were dismissed without being heard on the merits. (1)

For the past two years, the trial courts have been applying the factors set forth in Drejka v. Hitchens Tire Service Inc. (2) when deciding whether a case should be dismissed for the attorneys’ failure to obey scheduling orders. Because experience has shown that sanctions are not always effective, to achieve the goal of eliminating this problem, the Court has determined that it is necessary to refine the Drejka analysis.

Henceforth, parties who ignore or extend scheduling deadlines without promptly consulting the trial court, will do so at their own risk. In other words, any party that grants an informal extension to opposing counsel will be precluded from seeking relief from the court with respect to any deadlines in the scheduling order. By the same token, if the trial court is asked to extend any deadlines in the scheduling order, the extension should not alter the trial date. Counsel may face a compressed time period to complete discovery, or the filing of dispositive motions, but the most important aspect of the scheduling order – the trial date – will be preserved.  In the unusual circumstance where the trial court does decide to postpone the trial date, litigants should expect that the trial will be rescheduled after all other trials already scheduled on the court’s docket.

1.  Hill v. DuShuttle, No. 381, 2011, ___A.3d ___ (Del. 2013); Adams v. Aidoo, No. 177, 2012, ___ A.3d ___(Del. 2013); and Keener v. Isken, No. 609, 2011, ___ A.3d___ (Del. 2013).

2.  15 A.3d 1221 (Del. 2010).

Another key quote from the case:

If one party misses a discovery deadline, opposing counsel will have two choices – resolve the matter informally or promptly notify the court. If counsel contacts the court, that contact can take the form of a motion to compel, a proposal to amend the scheduling order, or a request for a conference. Any one of these approaches will alert the trial court to the fact that discovery is not proceeding smoothly. With that knowledge, the trial court will be able to take whatever steps are necessary to resolve the problem in a timely fashion. If the party chooses not to involve the court, that party will be deemed to have waived the right to contest any late filings by opposing counsel from that time forward. There will be no motions to compel, motions for sanctions, motions to preclude evidence, or motions to continue the trial. It is entirely possible, under this scenario, that some vital discovery will not be produced until the day before trial. Still, the party prejudiced by the delay accepts that risk by failing to promptly alert the trial court when the first discovery deadline passes.

Each of the bevy of cases decided as a group, and cited above, had different factual backgrounds, as one might expect, but the common theme was that a pre-trial deadline of some type was missed, and the trial court dismissed each of the cases for failure to meet the deadline. (Careful readers may recall decisions from the Court of Chancery that barred the introduction of expert reports that were not submitted by the deadline in the scheduling order. Query if those decisions would have been decided differently if this new standard were applied.)

Each of the cases decided in this “collection of decisions” are different enough that they should be consulted by anyone confronted with this type of unpleasantness. For example, in the Hill case cited above, an attorney failed to submit an expert report in a “trip and fall” case, because he did not think one was necessary despite being subject to a motion to compel. Although that stubbornness was not exemplary, the Court reasoned that a “less harsh penalty” should have been employed prior to the ultimate penalty of dismissal.

In the Keener case cited above, a reasonable explanation was provided for filing a reply to a summary judgment motion only a few dates late, when the case was only a few months old and no scheduling order had been in place yet. This was not the type of situation, the Court reasoned, where justice would be served by a dismissal of the case, and would violate the strong public policy of Delaware to decided cases on the merits and not on some procedural technicality.

Any lawyer who has been practicing long enough will confront a situation where she or an opposing lawyer has missed a pre-trial deadline, for either very good reasons or otherwise. This new decision from the Delaware Supremes shows a kinder and gentler approach to the practice of law–while at the same time upholding the high standards that the country has come to expect from the Delaware Bench and Bar.