Wednesday, October 23, 2013

The Notice of Unavailability


There has been an increase lately in the filing of questionable documents with the Office of Judges of Compensation Claims. One is cover letters. We really do not need a letter with your motion, which explains that the attached document is a motion We can get that from the motion. Please stop filing cover letters. 

Another is the Notice of Unavailability. Invariably, they identify a range of dates upon or between which counsel is otherwise committed to other pursuits and therefore not amenable to scheduling in this particular case. The tenor may not be so consistent, however. Some state something like "the undersigned also requests that no depositions be set during that time frame," while others may be more coercive, like "parties therefore shall refrain from filing any motions, notices of hearing, or refrain from setting hearings during this time period."

Is a Notice of Unavailability of any practical use?

The Southern District of Florida has a Magistrate who unequivocally says no. In the SDFLA Blogspot, they note that Magistrate Stephen Brown published a "Notice to Parties" in 2010 explaining:
The parties should note that there is no local rule in our Court providing for the filing of same, and no federal rule supporting same.  While the Court is not precluding anyone from filing same, and as a matter of professionalism and courtesy they should be considered, the parties should understand that these filings have no legal significance.
Is there a 60Q Rule that either describes or suggests this document/notice?

From where did this practice come then? There are those who point to the Florida Rules of Judicial Administration generally, and the provisions of Rule 2.550 specifically. I have seen this Rule cited in a few motions for continuance over the years also. Some proponents feel that this rule either allows, or perhaps requires, the notification of calendar conflicts. Keep in mind that the Florida Office of Judges of Compensation Claims is not a Court. The Rules of Judicial Administration apply to Courts. The RJA does not control the OJCC except where our rules incorporate them, such as the disqualification of judges.

The SDFLA Blogspot has some interesting comments on the topic, and you can decide for yourself whether the Notice has any utility in your workers' compensation practice. I would suggest that there is a utility to such a notice. That is courtesy to your opponent. Everyone has an interest in getting the case moving. Any case will have discovery issues and calendar conflicts. They are virtually inescapable. People on both sides of any litigation, and the witnesses that will be needed therefor, are busy. That is a simple fact of litigation life. Notifying opposing counsel of calendar conflicts may be the polite and helpful course. Sending such a notice that identifies virtually all the days for the next six months? not so much.

You cannot expect a Judge to sift through the docket, in setting a hearing. Imagine yourself sifting through all of your cases trying to figure out who might be unavailable in a given case. This is not practical. Therefore, do not find yourself surprised if something gets scheduled during a time for which you have filed a notice of unavailability. That notice has no force of law, and you cannot expect that filing it will unequivocally protect your calendar. 

You may, however, find that a notice is helpful to your opponent. Being helpful to her/him, is contextually beneficial to you. First, it is more professional. Second, when you need the Judge's help on a motion for protective order or a motion for continuance, it may behoove you to be able to point to the Notice of Unavailability (attached to a Motion). 

In other words, it cannot hurt you to file such a notice, but do not think it is the be all and end all. I recommend avoiding any language as to what parties or the Judge "shall" do or refrain from because of your notice. Grandma always told me that you catch more flies with sugar. I commend that course.  

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.