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The Prevalence of Opposition to Motions to Continue to Accommodate Parental Leave
Jennifer L. Feld |
February 5, 2020
As published in the St. Petersburg Bar Association Paraclete, February 2020
Out of Office Auto Reply: “I am out of the office on maternity leave with limited access to emails. I will, however, be attending all hearings, depositions, and trials.”
I support the Parental Leave Rule. To get all preconceived notions out of the way, I am a female trial attorney, a toddler mom, a committee chair for the state FAWL (Florida Association for Women Lawyers). In August, FAWL supported the Rule at the Florida Supreme Court oral arguments, and I actively participated in the Supplemental Filing provided to the Court. I have written a number of articles touching on sensitive issues such as maternity leave, lactation rooms, and how to pump breastmilk during a jury trial.
The proposed Rule of Judicial Administration would allow up to a three month trial continuance to accommodate parental leave for lead counsel, unless the opposing party can show substantial prejudice. Without discussing the semantics of the proposed Rule itself, I’d like to discuss the oft-argued opposition. Many practitioners and judges believe the Parental Leave Rule is not necessary as there is no problem to solve. Is there a judge that would deny such a continuance? Is there an opposing counsel that would question the request? I quickly decided to conduct my own case study.
Within one hour, I received eight responses citing orders denying continuances due to maternity leave and motions in opposition to continuances filed by opposing parties. All examples occurred within the past three years. The issue was systemic and state-wide.
From as far north as Okaloosa County, down to Broward County, and across to Collier, women across the state were being denied their day in court due to requests for maternity leave.Either the judiciary was denying continuances, or the continuances were eventually granted, but only after a scathing, embarrassing motion in opposition was filed by the opposing party.
One attorney was faced with two motions for reconsideration after her maternity leave continuance was granted. It was as if her nightmare would not end. I picked up the phone and decided to talk to each of these women individually. As you might imagine, there is some reluctance for the ‘victims’ to come forward with their stories in the first place, so for the purposes of this article, all names will remain anonymous.
In perhaps the most egregious account, an attorney filed a motion for continuance to accommodate her maternity leave. A reading of the transcript from the hearing, which is now part of the court record, will make your blood boil. Opposing counsel states that the attorney handling the file should have never been assigned a case in the first place, as she was pregnant at the time. He nearly accuses her law firm of malpractice for affording her the case referral, when the “stress” of it all would be to much for a woman in her condition. Never mind that the client had requested her specifically. Never mind that she never once complained of being stressed during the trial. Never mind that her pregnancy had not inhibited her ability to practice law. She was absolutely capable of trying the case, she simply wanted to be granted her maternity leave to continue the trial for a mere three months. After multiple motions in opposition, the continuance was eventually granted.
In the case study above, the attorney was at risk of losing her client, should the case have been pulled from her and given to another lawyer in her office. She was at risk of losing her upcoming partnership appointment. How would she have handled the situation if she were a solo practitioner? Luckily, her continuance was granted, but only after substantial embarrassment, headache, and futility in an unnecessary exercise of resources by the court.
Another example resulted from a terrible bout of bad timing for an esteemed trial lawyer. A female partner at a trial firm lamented to me about the unfortunate circumstance whereby she and her associate were both pregnant at the same time. They had a one-month overlap where they would both be out on maternity leave.
It was a rough time for her office, no doubt.However, when she and her associate requested a continuance on their trial, it was denied by the court without reason. She was forced to refer the case to a male partner from another office. The case had been pending for over four years. While the male partner was skilled, he was forced to take over a case on the eve of trial, and did not obtain the desired verdict for the client. The female partner expressed to me in confidence that her mental state during her maternity leave was greatly affected by this trial outcome. She was worried about the verdict. She felt guilty for ‘dumping’ the trial on her partner. She was angry that she lost her shot at trying the case, which may have counted towards her board certification.
I could go on. Since my initial “case study,” I have been contacted by lawyers from all over the state, requesting assistance on their Motions to Continue. Usually, the attorneys are surprised to hear there is opposition in the first place – from the bench, opposing counsel, or both. After a recent contentious “win,” a female trial attorney wrote to me, “I am so appreciative and inspired by your advocacy for those of us that want and expect to be able to advance in our careers while also taking on and navigating motherhood.
I write this article for one purpose. Whatever happens with the proposed Rule, I encourage all of you to be advocates. Raise awareness. Offer to support your colleagues. The advancement of women in our profession depends on it.
This summer, I’ll see you at calendar call, folks. I’ll be the one wearing mesh underwear and lactation pads.