This case might represent courts’ frustration with litigators not taking court orders seriously.  In McKenna v. Connor, the Appellate Division, Third Department upheld the trial court’s dismissal of the plaintiffs’ action based on failure to prosecute.  The dismissal was based on the plaintiffs’ attorney’s request for an adjournment 11 days before trial.  Four days later, the Justice denied the plaintiffs’ request and told the attorneys that the trial was to proceed as schedule.  On the day of trial, the plaintiffs’ attorney again request an adjournment based on prior engagement and that an expert could not appear to testify.  The trial court denied the request and granted the defendants’ motion to dismiss the complaint.

Notably, the Third Department observed that the trial date was set a year in advance and the plaintiffs’ attorney did not explain why another attorney in the plaintiffs’ firm, who was evidently familiar with the case,  could not  act  as trial counsel.  The plaintiffs’ attorney also failed to explain why the expert was contacted only one month before the trial when it was scheduled one year in advance.

This decision is a cautionary tale to us all that Judges are tired of litigators ignoring their orders and trial schedules.  I have seen several Judges visibly upset when litigators ignore scheduling orders, thinking that they can always get an extension.

Do you agree with the result of this decision or does it ignore the realities of litigation?

Thanks Paul for calling my attention to this case.