There comes a time when a judge's exasperation with attorneys makes its way into a written opinion.
Take, for example, U.S. District Judge Kenneth D. Bell, Statesville, N.C., who is presiding over an ERISA complaint against Lowe's Cos. Inc. and Aon Hewitt Investment Consulting by a participant in the Lowe's 401(k) plan.
As attorneys fought over the calling and excluding of witnesses for an upcoming trial, Mr. Bell excoriated them in an eight-page ruling on Feb. 22.
"Lowe's cannot seriously or credibly contend that disclosing almost three dozen potential witnesses shortly before the clock struck midnight on the last day of the discovery period was timely (or) 'substantially justified,'" he wrote.
Adding that this disclosure of witnesses — many of which have been withdrawn — was "untimely," the judge remarked: "The court notes that Lowe's is a frequent litigant in this court and trusts that this conduct will not be repeated in future litigation."
Plaintiff Benjamin Reetz — or at least his attorneys — also didn't escape Mr. Bell's displeasure. "'Gotcha' is not and cannot be a guiding principle for the application of the Federal Rules of Civil Procedure," Mr. Bell wrote, noting that defense and plaintiffs' lawyers were still quarreling over three witnesses.
"An unreasonable and uncompromising insistence on the strictest application of the rules with the clear effect of thwarting the search for a true decision on the merits is no less gamesmanship than the original sin," Mr. Bell wrote as he criticized the plaintiff's "strident position."
His ruling on the witnesses was a mixture of agreeing in part, denying in part and deferring in part the various claims — while also leaving clear instructions.
"With all due respect and great humility, the court does not need the witnesses from either party to provide the court with a primer on the applicable ERISA law or legal standards, notwithstanding ERISA's acknowledged 'complexity,'" he concluded.
