Thursday, November 1, 2018

Maternity and Continuance

The Florida Supreme Court is soliciting comments regarding the proposed addition of a Parental Leave Continuance provision. It would be Rule 2.570, Rules of Judicial Administration. Essentially this would provide
Unless substantial prejudice is demonstrated by another party, a motion for continuance based on the parental leave of a lead attorney in a case must be granted if made within a reasonable time (after specifics such as notice of trial or learning of leave)
The rule would include requirement of making a timely motion, set a presumptive maximum for reasonable delay secondary to parental leave, and delineate the parties' respective burdens for either seeking or opposing such a motion. It is worth reminding that the Rules of Judicial Administration (RJA) do not apply to the Office of Judges of Compensation Claims (OJCC), because that is executive branch, not a "court." See Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004). That does not mean the OJCC could not adopt a specific RJA as it has done with recusal process.

The Florida Bar has voiced support for the rule, more on that below. The issue is seen as one of equity for female attorneys, and there has been both some significant press coverage and some repercussion from the maternity continuance topic. But, the Supreme Court is as yet not ready to impose a rule. Some question whether a rule is necessary, or at least whether a rule is the best course. Until November 15, 2018 the public may submit comments on the proposed rule. 

Long ago, I learned a little about child birth. No, I have never given birth, and I am not trying to steal the valor of those who have. I do have some peripheral experience with the subject however. I am familiar with some of the excitement, the worries, the challenges, the emotions, and more. The experience is incredible for parents generally, and I know from what women have told me that their experience is unique for a variety of reasons. I claim no expertise about pregnancy or maternity. But, I know a few things about the law and the litigation process. I have presided over thousands of cases, and conducted more than 800 trials over the years.

I vividly recall years ago a judge denying an attorney's request for a continuance in a case. The trial was scheduled on her "due date." We would all like to think those predictions are accurate. And I have met few who spontaneously delivered on their "due date." It happens. But, as often the due date comes and goes without delivery. The unpredictability of when contributes to the emotions. Faced with no real choice, that attorney elected to proceed to trial that day before a sad, inflexible, and misogynistic judge. After a long, exhausting day on her feet, that attorney won an acquittal. Fortunately, the baby cooperated and waited. 

There are waves of emotion in trial. On that, I have some personal experience. Trial for me was always stressful. I worried about the facts, the law, the witnesses, the documents, and more. I fixated on how I had organized, what I had done, what I had not had time to do, and what if, what if, what if. It is a pleasure to see an exceptional lawyer try a case. Those who can make it look easy, flawless, and smooth awe me. I know many of us have tried a case while our focus was not 100%. But, I hear from some women that pregnancy, impending delivery, and maternity bring a particular set of challenges that complicate the effort and focus that trial requires. The lady who won that acquittal on her due date was rightfully proud, even exuberant. But, should that have been her choice or the bully judge's?

I was troubled recently when an attorney forwarded me some unsolicited documents. Our communication began as so many of mine do, with a phone message weeks ago. The attorney had called to ask, essentially, "I have a problem with scheduling, what do I do." The answer to most questions that start "I have a problem" usually lead to a similar answer that begins "file a motion," or "look at Rule 60Q6.115(1)." As I have written repeatedly, the motion is the appropriate tool when a party or counsel needs "relief" or judicial involvement. Faced with a problem, the motion is a great first guess. Problems are the trial judge's responsibility.

These documents were sent to me weeks after that first exchange. The attorney had followed-through and filed a motion for continuance of a workers' compensation hearing, citing pregnancy, an impending due date, and the need for maternity leave. The assigned judge had denied the continuance and a subsequent motion for rehearing. The judge noted that this attorney is part of a large law firm and that some other attorney in the firm could simply step in and try the case instead. That raises the question, are lawyers fungible? 

Reading the documents, I was reminded of another pregnancy situation years ago. An attorney was summoned to a distant city for a procedural hearing. At the time, the OJCC had a fully-functional videoteleconference system that could facilitate remote appearance. But, the Judge of Compensation Claims insisted on "live" appearance. One attorney submitted a doctor's excuse that literally said "Ms. ______ cannot travel until after ________ secondary to pregnancy complications." The assigned judge was neither accommodating or even polite in her response. Essentially, the judge said "I don't care what your doctor says." The lawyer called me in tears. I was left with telling her that such decisions were in the assigned judge's discretion, no matter how unnecessary or unfair they might seem to us. 

In short, there are occasions in which judges may seem less than sympathetic regarding the issue of maternity leave. Other times, they may appear quite simply tone deaf. The best advice I have is that decisions should be by written order, with detail, with recognition of the competing arguments and their merits. Being denied relief may sting less with explanation and thoughtfulness.

There has been recent publicity regarding maternity leave, and this proposed rule. I noticed it last summer when the Daily Business Review published Female Attorneys Fuming After Miami Lawyer Opposed Continuance. A female attorney filed a continuance motion, and cited her physician's instructions not to travel more than an hour from Jacksonville during the "final five weeks of her pregnancy," which implicated the scheduled trial date. The opposing male attorney was "accused of comparing" the female attorney's "pregnancy to an illness," which is admittedly a poor comparison. 

But, he also alleged "she became pregnant as a ploy to delay the litigation." Similarly to the order discussed above, he contended that the female attorney could simply "pass" the case "on to another attorney at her firm." But others noted that such a hand-off could be "a disadvantage to the client." There is a perception expressed that trial tactics are intended to frustrate women or impede their professional participation. There is a perception expressed that the current atmosphere is discriminatory and unfair. Whether it is or is not, that perception itself bears careful consideration and discussion.

The male attorney's firm suspended him "pending further review by management." His biography was soon removed from the firm's website. The attorney, an experienced litigator, claimed his words were "taken out of context," and that the situation was being "overblown" by critics.

A Florida Bar News article provided some other insight last summer. In Florida Attorneys Could Soon Get New Parental Leave Rule, the presumptive nature of the rule was reiterated. In addition, the "prejudice" factor was noted. A law firm partner and member of The Florida Bar Board of Governors noted 
“Obviously, if there are speedy trial concerns or there’s children involved or elderly people and there’s a reason that the trial has to go forward, then somebody else has to try the case. But 99 out of 100 times, that’s not the case.” 
That article also cited an anecdotal example of a mother who traveled "to trial over 200 miles away from her seven-week-old newborn daughter." This worked a hardship on mother and daughter, but this attorney (1) "worked for a small firm," (2) "had been working on the case since its inception," and (3) had no one to fill in for her at trial that had "the intimate knowledge of the facts." The "effective" choice she faced was to "tell her client to get a new lawyer or go to trial.”

A subsequent Florida Bar News article, Board Supports Parental Leave, explained The Florida Bar Board of Governors has endorsed the proposed new rule. The Judicial Administration Rules Committee has not, voting to oppose it. The committee majority concluded that continuances should be granted for pregnancy (on that there seems general agreement), "but a rule is not necessary for these specific circumstances" because judges already have the discretion for such instances. But, one of the committee members in favor of the rule noted “This should not be dependent on the sensitivities of a judge or opposing counsel.” 

Other critics of the proposed rule fear that such a rule would "divest the trial court of its discretion." Furthermore, there is concern this may "elevate the needs of an attorney over those of witnesses or parties to litigation.” For those reasons, some contend the issue should remain within the trial judge's discretion. 

Some might reply to the discretion argument noting that some judges have proven that discretion is misplaced. Trying to force a lawyer to travel against doctor's orders is simply wrong (adjectives omitted for the sake of the reader's ears). This is true in pregnancy, illness, or otherwise. Doctor's orders need to be respected and accommodation needs to be afforded. Risking health for litigation is simply silly.

Some will conclude that any judge denying any maternity continuance is both sad and misogynistic. That is possible. Or, perhaps that judge is concerned about the delay such a continuance might cause. As noted above, if speedy trial is an issue in criminal proceedings that is a consideration. What if the issue is an injured worker with no income, falling behind on payments, at risk of financial calamity? What if it is an issue of an injured worker that may or may not be awarded a medical treatment that might alleviate or ameliorate pain and discomfort? The duty of a trial judge is to balance these competing concerns. The proponents of this proposed rule would likely say the rule does not change that balancing, but merely defines a procedure and standards for that balancing? Others see it simply and unnecessarily limiting discretion.

Some might see lawyers as commodities, easily substituted one for another. Some might see lawyers as fungible. They are not. I have seen many lawyers try many cases. I have seen some that are phenomenal and exceptional. I have watched a few that frankly were not. I have seen particular skills, specialized insight, and as importantly I have seen the focus that comes from an intimate and long-term familiarization with the particular facts and history of a specific case. Skills matter. Experience and familiarity may in fact matter. Clients become invested in an attorney through the course of a case. There may well develop relationship, experience, and trust. Is it appropriate for a client to be divested of that and foist unceremoniously upon some other attorney for trial?

What does such an attitude do to the diversity of this profession? There is some recognition recently that people are leaving the practice of law. That is seen as particularly problematic with women departing. At least some have contended that professional opportunities for women are more constrained. One recently noted the Horrible Conflict Between Biology and Women Attorneys. How is a woman's career affected if she must tell a client "sorry" and pass on a trial (or trials)? Some may ask conversely how is the woman's career affected if she must delay (continue) the client's trial? For whatever reason, many clients become perturbed with delay. But, should that decision be for the client (pick a different lawyer) or for the judge (hand it off, "continuance denied")?

The decision before us is should there be a rule that removes the discretion for trial judges? To the judges and lawyers that say no, perhaps it is worth considering some of the poor discretion that has been historically displayed. To those who say yes, perhaps it is worth noting that those anecdotal examples of poor behavior are seemingly rare, that it appears most judges are already cognizant and compassionate. 

For me, I appreciate the challenge faced by trial judges. I understand the burdens of work injury on workers and their families. I understand the need for a diverse bar. I respect the women who practice law and strive to balance work and life. I know that there are never any pat, simple, and unassailable solutions to the complex issues of competing rights and needs. That all said, if this were left to me the proposed rule would be adopted. Balancing the various concerns and issues, I think the right outcome is to better define the issue, better educate the adjudicator (well drafted motion and argument), and thus bring better consideration to the conflicting interests.

I do not envy the Supreme Court its burden in this debate. If you want to tell them how you see this issue, the instructions for comment are here.







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