EDITH H. JONES, Circuit Judge:
Plaintiff-appellant, Robert Geiserman, filed suit against some business partners and the attorney who had represented them in a real estate venture. Geiserman alleged that an attorney, A.B., and his firm, A.B. and Associates (referred to as Attorney), represented the venture and the venture partners while contemporaneously representing an adverse party. The district court struck Geiserman's late-filed designation of an expert witness, refused to permit his untimely answers to interrogatories and granted summary judgment to appellee Attorney and his firm.
A. Geiserman's Allegations
In his complaint, Geiserman stated that he and other venture partners intended to develop a shopping center. The venture entered into a lease agreement with Racquetball Resorts International, which was controlled by Finley, one of the venture partners. When Finley decided to sell his interests in Racquetball Resorts, he wanted to renegotiate the lease terms to make Racquetball Resorts more attractive to prospective purchasers. Geiserman alleged that Attorney and the other venture partners conspired to modify the lease terms to the venture's detriment. Geiserman also contended that Attorney represented Finley's individual interests, Racquetball Resorts' interests and the joint venture's interest simultaneously and adversely to the joint venture.
From these allegations, Geiserman concocted causes of action for legal malpractice and breach of fiduciary duty against Attorney and his firm.
B. Proceedings in the District Court
The case was filed in June 1987. Pursuant to a scheduling order dated January 19, 1988, the case was to proceed along the following schedule: the trial was set for December 5, 1988; discovery was to be completed by October 3, 1988; the plaintiff was to "file a written designation of its expert witnesses at least 90 days before trial", and the defendants were to designate their expert witnesses at least 75 days before trial.
Geiserman missed, without timely explanation, two deadlines for identifying his expert witnesses. On July 28, 1988, Attorney inquired in interrogatories as to the identity of Geiserman's expert witnesses. These interrogatories were not answered by the August 29, 1988 deadline.
Responding to Geiserman's delays in the face of the impending discovery deadline, Attorney filed several motions: one to dismiss or alternatively to preclude evidence as a sanction for failure to answer the interrogatories and for summary judgment; and a motion to strike Geiserman's untimely expert witness designation.
On November 3, the court ruled on the various pending motions. The court granted Attorney's motion to strike Geiserman's expert witness designations and denied Attorney's motion to dismiss as a sanction. The court initially denied Attorney's motion for summary judgment based on Geiserman's contention that some of his claims against Attorney could proceed without expert testimony. Upon a later motion for reconsideration, however, the court found that Geiserman failed to support his malpractice claim with sufficient summary judgment evidence, expert or otherwise, to avoid summary judgment.
Geiserman raises several objections on appeal. First, Geiserman contends that the court improperly struck his expert witness designations. Geiserman also argues that the court erred in disregarding evidence that he offered in opposition to the summary judgment. Finally, Geiserman contends that the court erred in granting summary judgment against him.
ENFORCEMENT OF DISCOVERY ORDERS
Without disputing that he missed two deadlines for designating expert witnesses,
The court's order striking the late expert witness designation and precluding any expert witness testimony involves both the enforcement of a scheduling order and the enforcement of local rules. We review either type of order under the abuse of discretion standard. See Bradley v. United States, 866 F.2d 120, 124 (5th Cir.1989) (amendment of pretrial order); Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1157-58 (5th Cir.1985) (refusal to allow expert testimony because of late designation).
Rule 16(b) of the Federal Rules of Civil Procedure authorizes the district court to control and expedite pretrial discovery through a scheduling order. Consistent with the authority vested in the trial court by rule 16, our court gives the trial court "broad discretion to preserve the integrity and purpose of the pretrial order." Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir.1979) (affirmed refusal to modify pre-trial order); see also Fed.R.Civ.P. 16(b), Advisory Committee Note (trial court may modify scheduling order for good cause). Moreover, a trial court's decision to exclude evidence as a means of enforcing a pretrial order "must not be disturbed" absent a clear abuse of discretion. See Davis v. Duplantis, 448 F.2d 918, 921 (5th Cir.1971); Fed.R.Civ.P. 16(f)
We review the court's exercise of discretion to exclude evidence that was not properly designated by considering the following four factors: (1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice. Bradley, 866 F.2d at 125 (citing Murphy v. Magnolia Electric Power Ass'n, 639 F.2d 232, 235 (5th Cir.1981)). Preliminarily, we note that in excluding the evidence, the court was merely enforcing the deadlines plainly set out in the court order and local rule for designating witnesses.
The reasons offered by Geiserman for his failure to timely designate are weak, at best. He asserts that the pretrial order did not specify a deadline date for designation. This is incredible, because the scheduling order and local rule 8.1(c) plainly impose a deadline to designate his expert witnesses at least 90 days before trial. One does not require a legal degree to count back 90 days from the scheduled trial date of December 5, which the pretrial order contained. The second excuse, that the omission resulted from a scheduling mistake in counsel's office, is not the type of satisfactory explanation for which relief may be granted. See Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1158 (5th Cir.1985) (plaintiff should have been aware of need for expert testimony and claim of last minute need is meritless).
The next factor for our consideration involves the relative importance of the excluded testimony. In his response to Attorney's motion to exclude expert testimony, Geiserman stated that expert testimony would be useful to assist the jury in determining complex issues, but he also stated that some of his claims of malpractice could be proven without expert testimony. Subsequently, however, he stated that expert testimony was essential "for complete proof of the majority of the malpractice claims against the [Attorneynot= Defendants". While expert testimony is necessary to establish the standard of care and possible breach in most legal malpractice cases, such testimony is not critical if the allegation of negligence is apparent to a lay person or established as a matter of law.
Geiserman argues that a delay of a couple weeks in designating the expert witness would not have caused any prejudice to Attorney. Such delay, however, would have disrupted the court's discovery schedule and the opponent's preparation. Attorney stated that his own trial strategy was affected by Geiserman's extensive delay in answering interrogatories and similar delay in designating any expert witness. Attorney explained that he chose and designated his own expert witness in "reliance on Plaintiff's apparent decision to forgo expert testimony."
The final factor we should consider is the possibility of a continuance. Although Geiserman mentioned to the lower court
Consequently, the court's refusal to modify the scheduling order and its enforcement of the time deadlines did not abuse its discretion. See Sexton v. Gulf Oil Corp., 809 F.2d 167, 170 (1st Cir.1987) (court affirmed preclusion of testimony due to untimely designation of expert witness). Geiserman has not provided a valid reason that would justify excusing him from the deadlines imposed by the lower court. The claimed importance of expert testimony underscores the need for Geiserman to have timely designated his expert witness so that Attorney could prepare for trial.
Regardless of Geiserman's intentions, or inattention, which led to the flouting of discovery deadlines, such delays are a particularly abhorrent feature of today's trial practice. They increase the cost of litigation, to the detriment of the parties enmeshed in it; they are one factor causing disrespect for lawyers and the judicial process; and they fuel the increasing resort to means of non-judicial dispute resolution. Adherence to reasonable deadlines is critical to restoring integrity in court proceedings. We will not lightly disturb a court's enforcement of those deadlines and find no reason for doing so here. The court did not abuse its discretion in striking Geiserman's untimely witness designation and precluding Geiserman's expert testimony.
Geiserman also contends that the court erred in granting summary judgment. In raising this point, Geiserman also complains that the court erroneously disregarded his summary judgment evidence.
Upon reconsideration the court granted Attorney's motion for summary judgment because it concluded that Geiserman failed to provide any summary judgment proof to create a fact issue on the elements of his claims. The court held that the documents offered by Geiserman, a list of contested fact issues in an unfiled, proposed pretrial order; an affidavit of an expert who was precluded from testifying; and unfiled and untimely interrogatory responses, could not be used to oppose summary judgment. We will first address whether the court abused its discretion in disregarding such proffered evidence.
First, we uphold the court's exclusion of the affidavit of the proposed expert witness, in order to enforce its discovery order and local rule. Geiserman cannot attempt to create a fact issue with evidence of facts that cannot be proven at trial. See
The court also acted properly in denying Geiserman additional time to respond to Attorney's interrogatories and in refusing to consider Geiserman's responses to Attorney's interrogatories, which were returned over four weeks late and were never appended to the opposition to the summary judgment motion. Geiserman's reason for the failure to respond, that counsel's father had unexpectedly passed away, is insufficient since that unfortunate event occurred after the time to respond had expired. While the court had authority to grant a time extension under Fed.R.Civ.P. 6(b) upon a showing of excusable neglect, no such showing was made and we find no abuse of discretion in the court's refusal to grant extra time.
We must now determine whether the court erred in granting Attorney's motion for summary judgment. Summary judgment is proper "where a party fails to establish the existence of an element essential to his case and on which he bears the burden of proof. A complete failure of proof on an essential element renders all other facts immaterial because there is no longer a genuine issue of material fact." Washington v. Armstrong World Indus., 839 F.2d 1121, 1122 (5th Cir.1988) (citing Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2553). If the party with the burden of proof cannot produce any summary judgment evidence on an essential element of his claim, summary judgment is required. See id. at 1123-24.
To prove his claims of legal malpractice, Geiserman needed to establish the duty of care, and the breach, if any, of that duty. In most legal malpractice cases, "expert testimony is necessary to establish the standard of care since only an attorney can competently testify to whether the defendant comported to the prevailing legal standard." 2 R. Mallen & J. Smith, Legal Malpractice § 27.15, at 667, 668-69 ("consequence of not producing expert testimony
The district court determined that Geiserman failed to provide proper summary judgment evidence in support of his claims. On appeal, having unsuccessfully objected to the court's rulings excluding evidence, Geiserman also directed us to no other summary judgment evidence in the record to support his claims. Although Geiserman reurges the allegations stated in his complaint as a basis to defeat summary judgment, the summary judgment procedure requires the non-movant to go beyond the pleadings and support his contentions with some evidence. Geiserman has failed to create a fact issue on the elements of any claim for malpractice, including theories of negligence that would not require expert testimony. Finding no abuse of discretion in the court's evidentiary rulings and discovery orders, and no additional summary judgment evidence, we also find the court's order granting Attorney's motion for summary judgment correct.
Accordingly, the judgment of the district court is AFFIRMED.