Most personal injury clients think the only deadline that matters in their personal injury case is the statute of limitation. While that is a very important deadline, once a lawsuit is filed and a trial date is set in a personal injury case, there are a host of other deadlines for the personal injury case to go forward. These deadlines are usually listed in a scheduling order entered (signed) by the judge. A personal injury plaintiff has the burden to prove each element of a claim. Meeting these deadlines is essential in order to get all of the necessary evidence into the trial record, for a judge or jury to consider.
A scheduling order is an order entered by a court which sets forth the time by which certain things must be done. The form for scheduling orders is found in the Appendix to Part One of the Rules of the Supreme Court of Virginia.
In addition to setting the case for trial, the scheduling order will include important deadlines in a personal injury case like the close of discovery, expert disclosures, filing exhibit and witness lists, serving witness subpoenas, identifying the use of deposition testimony, exchanging jury instructions, and filing and serving objections to exhibits, witnesses and other matters.
Failing to comply with these deadlines can have devastating consequences for a personal injury case or any other type of case in which a court enters a scheduling order. Why? Because if an injured person cannot get in certain evidence, then the claim fails or is worth less than it could be. For instance, failing to file an exhibit and witness list can result in a court precluding the offending party from using any exhibits and from calling any witnesses at trial. The uniform scheduling order which states, “Any exhibit or witness not so identified and filed will not be received in evidence, except in rebuttal or for impeachment unless the admission of such exhibit or testimony of the witness would cause no surprise or prejudice to the opposing party and the failure to list the exhibit or witness was through inadvertence.”
The importance of complying with scheduling order deadlines is illustrated by a recent case our firm handled. We represented a party in a civil case that had been filed in general district court. After prevailing in general district court, the other party appealed the case to circuit court. Once the circuit court set the case for trial, we had the court enter a scheduling order.
The other party failed to comply with the scheduling order deadlines including one of the most significant deadlines – the filing and service of an exhibit and witness list. An exhibit and witness list identifies what documents and things a party will seek to introduce into evidence and the witnesses a party will or may call to testify at trial.
After confirming with the clerk’s office that the opposing party failed to file an exhibit list or a witness list, we filed a motion to prevent that party from calling any witnesses and introducing any exhibit at trial. The court agreed, and precluded that party from introducing any exhibits and limited the party to two witnesses – both of whom we already knew about. This ruling followed the language of the scheduling order, which provides that witnesses may still be called despite not being identified if the “testimony of the witness would cause no surprise or prejudice to the opposing party”.
As a result of the court’s ruling, the opposing party faced a weakened ability to prove his case, and nonsuited (dismissed) his case the day of trial. Even though we weren’t able to try the case to defend it on the merits, this was a victory for our client.
If you have a personal injury case, please call our firm. We are here to help you with your case. We handle such cases all throughout Virginia, including in Roanoke City and County, Montgomery County (Christiansburg, Blacksburg), Lynchburg, Abingdon, Martinsville, Rocky Mount, Wytheville, Bedford, Covington, Harrisonburg, Richmond, Charlottesville, Lexington, or Staunton. We also practice in areas such as Bath County, Campbell County, Giles County, Craig County, Smyth County, Alleghany County, Pulaski County, Franklin County, Campbell County, Carroll County, Patrick County, Floyd County, Stuart County, Pittsylvania County, Henry County, and Wythe County. We also litigate in Virginia federal courts, including those divisions in Roanoke, Abingdon, Danville, Harrisonburg, Charlottesville, Alexandria, and Richmond.