¶117 (concurring) — We would all do well to follow the example of civility and professionalism set by the late Judge William L. Dwyer. His writings give a sense of what I mean. See generally William L. Dwyer, Ipse Dixit: How the World Looks to a Federal Judge (2007); William L. Dwyer, In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles, and Future in American Democracy (2002). In addition, leaders such as Professor Paula Lustbader strive to foster greater civility in the profession. See generally Robert’s Fund: Fostering Civility in the Legal Profession, http://www.robertsfund.org (last visited Dec. 5, 2013). Unfortunately, practitioners do not always achieve civility in the adversarial system. This case is an example of what happens when the parties are not able to cooperate and follow the rules of witness disclosure. When this happens, the trial judge must step in and restore order, and she must have the tools to do so. Here, the majority treads too heavily on the trial court’s authority to restore order and conduct a fair trial. At some point in the progress of a lawsuit, the trial *372court’s duty to fairly and expeditiously manage cases must trump Burnet's25 presumption that a litigant may present new, undisclosed evidence at any time. That point is certainly reached after trial begins — and at the very latest after opening statements. A judge does not abuse his or her discretion by requiring a party who discloses witnesses after the beginning of trial to show good cause why the witnesses should be allowed to testify.
¶118 Under Burnet, a trial court may exclude witness testimony as a discovery sanction only “upon a showing that (1) the discovery violation was willful or deliberate, (2) the violation substantially prejudiced the opponent’s ability to prepare for trial, and (3) the court explicitly considered less severe sanctions.” Teter v. Deck, 174 Wn.2d 207, 216-17, 274 P.3d 336 (2012) (citing Burnet, 131 Wn.2d at 494, 496-97; Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 690, 132 P.3d 115 (2006)). However, Burnet, unlike this case, involved discovery violations that occurred well before trial had begun.
¶119 Fittingly, Washington appellate courts have required trial courts to consider the Burnet factors only when considering sanctions for discovery violations that occurred before trial began. In Burnet, we reversed a trial court’s order limiting discovery and precluding evidence on an issue some 18 months before trial. 131 Wn.2d at 491, 499; id. at 502 (Talmadge, J., dissenting); see also Rivers v. Wash. State Conf. of Mason Contractors, 145 Wn.2d 674, 683, 694, 41 P.3d 1175 (2002) (trial court dismissed complaint about three months before trial); Peluso v. Barton Auto Dealerships, Inc., 138 Wn. App. 65, 68, 69-70, 155 P.3d 978 (2007) (trial court refused to amend case schedule order to allow medical testimony disclosed five days before scheduled trial); Blair v. TA-Seattle E. No. 176,171 Wn.2d 342,345-47, 254 P.3d 797 (2011) (trial court excluded witnesses that plaintiff added three weeks before trial); Teter, 174 Wn.2d at 212 (judge struck medical expert disclosed more than *373one month before trial). In such cases, where adequate time may remain for both opposing counsel and the court to effectively deal with the new witnesses, the Burnet presumption is reasonable. Where circumstances indicate extreme unfairness, the judge must make findings on the record that support an extreme sanction — like exclusion.
¶120 In contrast, after trial has begun, under great time pressure to complete the case, litigants should not be entitled to the presumption that new witnesses will be allowed to testify. At that very late stage, fairness to the opposing party and efficiency for the court and jury require a shift in the balance. The trial judge at that point may ask the party offering the previously undisclosed witness what good cause justifies the late disclosure, and if unsatisfied with the answer, she may exclude the testimony without expressly considering each of the Burnet factors. In particular, the judge may consider, but should not be required to find, willfulness in balancing the competing equities during trial. In Lampard v. Roth, 38 Wn. App. 198, 200, 684 P.2d 1353 (1984), the trial court allowed a party to supplement its answers to interrogatories during trial, adding 11 new witnesses. Toward the end of trial, the court permitted the same party to call two expert witnesses — one who had been listed as a nonexpert witness in the supplemental answers and another who had not been listed at all. Id. at 201. The Court of Appeals concluded that the party willfully failed to comply with the discovery rules and that the trial court abused its discretion by failing to exclude the testimony. Id. at 202. The court reasoned that “[i]f witnesses are not disclosed until after the trial begins, the surprised party is put at a serious disadvantage.” Id. at 201 (citing Davis v. Marathon Oil Co., 528 F.2d 395, 404 (6th Cir. 1975)); see also M/V La Conte, Inc. v. Leisure, 55 Wn. App. 396,402,777 P.2d 1061 (1989) (affirming trial court’s decision to exclude testimony of expert disclosed after the first full day of trial); Allied Fin. Servs., Inc. v. Mangum, 72 Wn. App. 164,168-69, 864 P.2d 1, 871 P.2d 1075 (1993) (trial court did not abuse *374its discretion by prohibiting party from calling witnesses at trial where party willfully failed, up to the time of trial, to name any of its witnesses). But see Rice v. Janovich, 109 Wn.2d 48, 56, 742 P.2d 1230 (1987) (applying a pre-Burnet standard favoring admission of testimony when reviewing trial court’s decision to admit testimony of expert witness identified during trial). In such a situation, the trial judge should be permitted to require a showing of good cause that overcomes the competing equities.
¶121 This case stands apart from other instances when a trial court excluded testimony from a late-disclosed witness because of just how late the city of Seattle revealed the witnesses. The city offered testimony from three different witnesses between 3 and 20 days after trial began. As Judge Craighead noted, adding witnesses after the start of trial in this case would not only have greatly prejudiced the plaintiff’s case but also would have jeopardized court resources by raising the specter of a mistrial. 7-A Verbatim Report of Proceedings (Sept. 29, 2009) (Jury Trial, First Portion of Day) at 24-25 (noting that no prior cases have involved offers of “extremely explosive information” via undisclosed witnesses at such a late stage and that the “prejudicial effect [of such an offer] is dramatic”), 27-28 (“[T]his is a witness who is absolutely potentially explosive, and I think that the risks of unfair prejudice, perhaps to the point of a mistrial, are too great. . . .”). Some circumstances — such as the city’s disclosure here of multiple “explosive” witnesses during trial — should free the sanction of witness exclusion from Burnet’s procedural safeguards and restore it to the reasonable discretion of the trial court.26
¶122 Declining to extend the Burnet factors to situations like that presented here would not prohibit litigants from offering evidence that was first discovered after the start of *375trial. But a party should not be entitled to the presumption that witnesses disclosed after the start of trial will be allowed to testify, nor should trial courts be expected to consider the Burnet factors on the record whenever a litigant upsets a trial in progress by offering late evidence. I concur with the majority in affirming the Court of Appeals and the trial court in this case. However, unlike the majority, I believe the trial court did not err in excluding the late-disclosed witnesses’ testimony. Indeed, she would have been justified in excluding them earlier and more forcefully.
Owens, Fairhurst, and J.M. Johnson, JJ., concur with González, J.After modification, further reconsideration denied February 5, 2014.
Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997).
Indeed, in Burnet we differentiated two Court of Appeals cases in part because “a significant amount of time yet remained before trial.” 131 Wn.2d at 496. Because of the remaining time, the opponent was not greatly prejudiced by “sanctionable conduct on the eve of trial.” Id. (discussing Allied Financial Services, 72 Wn. App. 164 and Dempere v. Nelson, 76 Wn. App. 403, 886 P.2d 219 (1994)).