As a young associate, I once read an ABA pamphlet on how to manage a law practice, and one of the recommendations was to have a regular meeting of all attorneys, at which one of the agenda items would always be "trouble and how to meet it." The idea is that usually you can see trouble coming at you from down the road, and that's precisely when an attorney needs the collective wisdom and experience of the firm. Trouble and how NOT to meet it is illustrated by the recent decision of the Virginia Supreme Court in Landrum v. Chippenham and Johnston-Willis Hospitals, Inc.
Landrum was a Virginia medical malpractice case in which the plaintiff was represented by an out-of-state counsel from Missouri, with Virginia local counsel. The Virginia Supreme Court affirmed the trial court's exclusion of the plaintiff's expert witness designations for failure to have them signed by local counsel, and the summary judgment in favor of the defense based on the plaintiff's lack of expert testimony.
The trouble was coming down the road for a couple months before the end. Plaintiff's intial effort at expert witness designations failed to state the substance of the facts and opinions to which the experts were expected to testify and a summary of the grounds for each opinion. The defense moved to exclude the expert witnesses and for summary judgment.
Plaintiff then attempted to cure the deficiency by providing the expert witnesses' reports, but failed to supplement the designation.
There was a hearing before the Circuit Court on the defense motions, in which the Court warned:
THE COURT: . . . I will give you seven days from today, and I'm going to give you a time that you file your answer to these interrogatories and you file a copy of it in the clerk's office and you do it in the proper manner. I'm not going to sit here and lecture how you're supposed to do it.
. . . .
I will tell you, sir, if you fail to do that, I will dismiss the case after that.
Plaintiff's next effort at filing an expert witness designation also did not comply with the Virginia Rules, as it was not signed by Plaintiff's local counsel, and the defense again moved to exclude the plaintiff's expert witnesses and for summary judgment.
This time, the trial court granted the motions, and dismissed the case with prejudice.
About two full months passed between the first effort at filing expert witness designations, and the last. The trial judge gave the plaintiff a week to file a compliant expert witness designation, after delivering a clear warning to comply with the Virginia Rules. There was time to reread the Virginia Rules, and conference with Virginia counsel.
Unfortunately, this was a very harsh result in a medical malpractice case, and the Virginia Supreme Court granted an appeal -- a rare and golden opportunity for claim repair. However, as noted here, plaintiff failed to comply fully with the Virginia appellate rules as well, and the appeal did not go well. Now it is big trouble.
The reason why in Virginia, local counsel must sign all the pleadings, is that being local counsel in Virginia is not regarded as a pro forma responsibility. As the Virginia Supreme Court has stated:
The purpose of the Rule is to facilitate the efficient administration of court business by permitting a court to deal exclusively with local counsel, upon whom all notices and processes may be served. It is necessary that our courts have access to attorneys of record who are personally subject to their supervisory control rather than risk delays in communicating with foreign attorneys who may be inaccessible, uncooperative or unfamiliar with the rules and statutes governing the trial of cases in Virginia.
Ortiz v. Barrett, 278 S.E.2d 833 (Va. 1981).