(dissenting). For the reasons expressed in my dissents in Monson v. Madison Family Institute, et al., No. 89-0314 unpublished slip op. (Wis. Ct. App. March 15, 1990), and Schneller v. St. Mary's Hospital Center, et al., 155 Wis. 2d 365, 455 N.W.2d 250 (Ct. App. 1990), I respectfully dissent.
I would remand this case to the trial court to determine: (1) the history of the Johnsons' and their counsel's dilatoriousness, including whether the delay was intentional, egregious and in bad faith; (2) the extent of the Johnsons' personal responsibility for the delay; (3) the defendants' contribution to the delay; (4) whether the Johnsons or their counsel were warned by the court that further delay could result in dismissal; (5) the prejudice to the defendants if the action is not dismissed; (6) the *357harshness of a dismissal with prejudice; and (7) the effectiveness of other sanctions.
I — I
The trial court dismissed the Johnsons' action with prejudice pursuant to secs. 802.10(3)(d), 804.12(2) and 805.03, Stats. Section 802.10(3)(d) provides that, "Violation of a scheduling order is subject to s. 805.03." Section 805.03, empowers the trial court in which the action is pending to make such orders "as are just," for failure of any claimant to prosecute or failure of any party to comply with the rules of civil procedure or to obey any order of the court, including but not limited to orders authorized under sec. 804.12(2)(a). Section 804.12(2), permits the court in which an action is pending to make such orders with regard to failure to make discovery "as are just,” including an order dismissing the action.
The Judicial Council Committee's Note to sec. 805.03, Stats., states:
This section, generally based on Federal Rule 41(b), replaces s. 269.25. Because of the harshness of the sanction, a dismissal under this section should be considered appropriate only in cases of egregious conduct by a claimant. See Link v. Wabash R. Co., 82 S. Ct. 1386, 370 U.S. 626, 8 L. Ed. 2d 734 (1962); Latham v. Casey & King Corp., 23 Wis. 2d 311, 127 N.W.2d 225 (1964).
Wis. Stats. Ann. sec. 805.03 (West 1977).
Section 804.12, Stats., does not appear to be based on a federal rule of civil procedure, as is sec. 805.03, Stats. The Judicial Council Committee's Note to sec. 804.12 states: "This new section provides strong sanctions against parties resisting discovery. Any party who seeks to evade or thwart full and candid discovery incurs *358the risk of serious consequences . . Wis. Stats. Ann. sec. 804.12 (West 1977).
Those "serious consequences" may include dismissal with prejudice. However, a finding of bad faith or a "callous disregard of responsibilities" is necessary to support dismissal on the merits for failure to make discovery. Furrenes v. Ford Motor Co., 79 Wis. 2d 260, 255 N.W.2d 511 (1977). Dismissal for noncompliance with pretrial orders is appropriate only in cases of egregious conduct. Englewood Apartments Partnership v. Grant & Co., 119 Wis. 2d 34, 349 N.W.2d 716 (Ct. App. 1984). See also Dyson v. Hempe, 140 Wis. 2d 792, 413 N.W.2d 379 (Ct. App. 1987) (clients' failure, in legal malpractice action, to provide attorneys with divorce file as ordered by the trial court, did not, in and of itself, warrant sanction of dismissal; client's failure to comply with the order was not egregious, and if failure to timely provide attorneys with copies of the file made discovery more time-consuming and expensive, attorneys could move for some sanction other them dismissal, or for reasonable expenses caused by the failure).
A trial court may dismiss an action for failure to prosecute only if the claimant's conduct has been egregious or in bad faith. Trispel v. Haefer, 89 Wis. 2d 725, 732, 734, 279 N.W.2d 242, 245, 246 (1979).
Despite these stringent standards limiting the use of the extreme sanction of dismissal, the majority here holds that in order to demonstrate an abuse of discretion the Johnsons must show "a clear and justifiable excuse" for their failure to comply with the court's orders. The majority derives this standard from Trispel, 89 Wis. 2d at 733-34, 279 N.W.2d at 245-46.1
*359The clear-and-justifiable-excuse standard was not derived from sec. 805.03, Stats., as Trispel would appear to hold, but from decisions applying sec. 269.25, Stats., which was discarded by the court when it adopted sec. 805.03. I conclude that the clear-and-justifiable-excuse burden which is imposed on a party aggrieved by the trial court's dismissal of his or her action, robs the egregious, bad faith, or callous disregard standards of any substance, except as bestowed by the grace of the trial court. An appellate court cannot give substance to these standards because appellate review is effectively barred by the insurmountable clear-and-justifiable-excuse standing barrier.
The clear-and-justifiable-excuse standing requirement was removed when the Wisconsin Supreme Court adopted sec. 805.03, Stats. S. Ct. Order, 67 Wis. 2d 585, 690, eff. Jan. 1,1976. We now look to the decisions of the federal courts, to the extent that they show a pattern of construction, as persuasive authority in construing sec. 805.03, Stats., because that rule is based on federal rule 41(b). Clausen and Lowe, The New Wisconsin Rules of Civil Procedure: Chs. 801-803, 59 Marq. L. Rev. 1 (1976); Neylan v. Vorwald, 124 Wis. 2d 85, 99, 368 N.W.2d 648, 656 (1985). The federal decisions establish a clear pattern of construction of federal rule 41(b) as applied to motions to dismiss a claimant's action with *360prejudice. These decisions require trial courts to consider the factors I would have the trial court consider on remand. See Monson v. Madison Family Institute, et al., No. 89-0314 unpublished slip op. at 26-27 (Wis. Ct. App. March 15, 1990) (Sundby, J., dissenting).
HH Í — I
A review of the record convinces me that, regardless of the standard applied, the trial court should not have employed the extreme sanction of dismissal against the Johnsons. The Johnsons had a property interest in their cause of action which was protected by the due process clause. Logan v. Zimmerman, 455 U.S. 422, 427 (1982). They could not be deprived of that property interest without evidence of no merit or bad faith. "If imposed solely for failure to obey court orders, without evidence warranting a finding of no merit or bad faith, the sanction of striking a pleading . . . denies due process of law." Dubman v. North Shore Bank, 75 Wis. 2d 597, 601, 249 N.W.2d 797, 799 (1977).
In its September 29, 1988 memorandum decision the trial court found: "The actions of the plaintiffs have been neither nominal nor technical. They have been substantial and egregious and for which justification has not been provided." (Emphasis added.) Mr. and Mrs. Johnson testified that they had provided their lawyers with all the materials that they were asked to provide. Mrs. Johnson, when asked whether she knew she had the right to change lawyers, responded: "You believe in your attorney, don't you, when you hire him and trust in him? . . ." She testified that they had many, many contacts with their attorneys in an effort to get the case tried. Mr. Johnson testified that he had considered changing attorneys but there had gotten to be too much involvement *361with the case. The Johnsons consulted two other attorneys about a possible conflict of interest in continuing to have their attorneys represent them on the motions for sanctions. Ultimately, the lead attorney withdrew from the firm, and the firm continued to represent the John-sons and made efforts to bring the case to trial. Therefore, the trial court's finding that the actions of the plaintiffs had been substantial and egregious is clearly erroneous. If the fault lay anywhere, it lay with the Johnsons' attorneys.
The trial court apparently believed that the John-sons were required to accept personal responsibility for their attorneys' actions, even to the extent of suffering the extreme sanction of dismissal, although they were completely blameless. This is not the law. See Paschong v. Hollenbeck, 13 Wis. 2d 415, 423-24, 108 N.W.2d 668, 672-73 (1961) (generally, neglect, mistake, or omission of attorney is not imputed to the client). Dismissal is warranted only where the plaintiff bears some degree of responsibility for counsel's misconduct, Dunbar v. Triangle Lumber and Supply Co., 816 F.2d 126, 128-29 (3rd Cir. 1987), or is personally culpable, Snead v. Automation Industries, Inc., 102 F.R.D. 823 (D.C. Md. 1984). Although dismissal is a possible sanction for attorney misconduct, it is an extreme sanction which should be reserved for cases of contumacious conduct for which the plaintiff is in some manner responsible. John v. State of Louisiana, 828 F.2d 1129 (5th Cir. 1987). "[A] host of cases evidence a reluctance of the courts to bar a party from trial on the merits of his claim because of the errors of his legal representatives." Wright & Miller, Federal Practice and Procedure: Civil, sec. 2369, at 196 (1971) (footnotes omitted).
*362hH HH Í — I
I further conclude that plaintiffs' counsel were not guilty of bad faith or egregious conduct. The record discloses that both the Johnsons' and Sperry's attorneys' used the discovery process to frustrate rather than facilitate discovery. This unfortunate condition was noted by the trial court in its memorandum decision of July 13, 1987, when the court considered motions by counsel for all parties for sanctions against the opposing parties for alleged failures to comply with discovery and scheduling orders. The court said: "Judging from the recent communications from the Court, counsel have been no more successful in developing this lawsuit in a civil and provident manner than they have in the past." The trial court strongly urged that the attorneys "in their own interest" consider and agree to a new scheduling order and disposition of the motion to compel discovery.
The minutes of the hearing of August 17, 1987 reveal that the attorneys did put on the record an agreement relative to experts and depositions. Unfortunately, that agreement does not appear in the record. The John-sons' attorneys agreed, however, to adjourn for sixty days their motion to compel answers to their interrogatories.
Despite the Johnsons' counsel's alleged uncoopera-tiveness, the defendants were able to take the depositions of numerous expert and lay witnesses, including the Johnsons' accident reconstruction expert, Mr. Johnson's treating physician, and employees of the Johnsons who presumably could contribute information as to the accident involving Mr. Johnson.
In its September 29, 1988 memorandum decision the trial court found that the information as to special damages provided by the Johnsons' counsel "was in *363great measure of no value in determining what the plaintiff^] [were] asking for and why." This finding is also clearly erroneous. Prior to the court's decision, over 1,400 pages of documents had been produced, some of which were introduced as exhibits in the depositions that the defendants took of the Johnsons' expert and lay witnesses. These included the Johnsons' documentation of their damage claims. At the time the trial court dismissed this action, the defendants were in possession of all the information they needed to defend against the Johnsons' case. It was not necessary to dismiss the action because of counsel's failure to make all of the Johnsons' expert witnesses available for discovery. The trial court could have refused to permit these witnesses to testify at trial.
All too frequently, personality differences between attorneys disrupt the progress of litigation and the innocent client suffers. I empathize with the trial court's attempts to mediate the conflicts between the attorneys which arose in this case. However, in the progress of litigation in this age, that seems to come with the territory. Nonetheless, when these unfortunate situations develop, the trial court must consider imposing sanctions which will protect the integrity of the pretrial procedure without depriving the innocent client of his or her cause of action. ''[T]he appellate courts do not look favorably on dismissal with prejudice if there are lesser sanctions that vindicate the purpose of the rules and the desire to avoid court congestion. Thus dismissals with prejudice are often set aside." Wright & Miller, supra, sec. 2370, at 203 (footnotes omitted).
*364> HH
For these reasons, I would reverse the judgment and remand the cause to the trial court to determine whether sanctions other than dismissal will protect the integrity of the judicial process without sacrificing the Johnsons' cause of action.
I agree with the majority's conclusion, majority opinion at 351, that the standards of "extreme circumstances" and "egregious conduct" apply to motions to dismiss with prejudice for *359failure to timely comply with pretrial orders as well as motions to dismiss for failure to prosecute. The majority of the federal courts apply the same principles and standards to motions to dismiss for procedural violations as they apply to motions to dismiss for failure to prosecute. See Dismissal for Failure to Attend Pretrial Conference and the Use of Sanctions at Preparatory Stages of Litigation, 72 Yale L.J. 819 (1963), and Comment, Involuntary Dismissal for Disobedience or Delay: The Plaintiffs Plight, 34 U. of Chi. L. Rev. 922 (1966-67).