It Is Time to Mandate Continuances for Parental Leave

You’d think by this point we wouldn’t still be arguing about whether it is appropriate to mandate continuances when a lawyer is on parental leave. At a time when women make up 36% of the legal field, at a time when we are finally seeing BigLaw grant gender-neutral parental leave, at a time when it is 2016, for goodness’ sake, this shouldn’t be an issue. You’d be wrong, of course.

Florida lawyers have been trying to get the Florida Bar’s Rules of Judicial Administration Committee to pass a rule change that would require judges to grant continuances, with no success.

The Florida Bar’s Rules of Judicial Administration Committee turned aside a proposed rule that would generally require continuances for paternity and maternity leave, but supported judicial education on the issue […]

The original, proposed rule said judges “shall” grant continuances for parental leave “unless exceptional circumstances are shown,” according to the article. The Rules of Judicial Administration Committee decided against pursuing that version of the rule in January, and also rejected a more lenient version in June. The second version said a court “should exercise its discretion to grant the requested continuance unless the opposing party would be substantially prejudiced.”

The objections to this are predictable–the fear that it will be abused and the fact that judges do not want to be mandated to do it, preferring instead to retain full discretion.

Both of these things are true for basically any type of continuance. Attorneys abusing requests for a delay (and being sanctioned for it) is nothing new. Attorney discipline mechanisms exist to ensure that continuance requests aren’t abused, regardless of the reason for a continuance. As far as discretion, judges would no doubt prefer maximum discretion in all areas related to continuances. This is highlighted by the fact that the weaker version of the rule allowed for discretion-just not as much discretion as judges wanted.

There is no doubt that many judges would behave rationally in this situation and grant the continuance, but there are judges that just won’t, period. It was only two years ago that an immigration law judge refused to continue a hearing for an attorney at home with a 6-week-old. When the attorney was unable to obtain child care and had to bring the infant to the courtroom, the judge shamed her for doing so.

This is why maximum discretion in this area is particularly problematic. Whether a continuance will be granted is going to turn, often, on a judge’s view of gender roles. For example, a judge who believes women should be the primary caregivers for children may be disinclined to allow a man to claim a need for parental leave. It also turns on whether judges understand certain economic issues: there are likely much more limited child care choices for attorneys making $35,000 working at legal aid versus successful partners at large firms.

This problem falls disproportionately on women, of course, as the typical caregivers for infant children. It falls even more disproportionately, however, on solosmall practitioners. If you are at a medium- or large-sized firm, there is a far greater chance that a colleague can cover for you if a continuance is refused than if you are in a small firm. Of course, if you are solo, there’s a near-zero chance that someone could step in and handle your case.

It’s 2016. This shouldn’t even be a point of contention any longer. If the legal field wants to (1) keep women of childbearing years in the profession and (2) allow men to play a fundamental role in caring for their children at the very start, this is a no-brainer.

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  • S.M. Oliva

    There’s a recent Tennessee Court of Appeals decision that speaks to the author’s point. A (male) sole practitioner representing a plaintiff in a medical malpractice case missed a filing deadline because he was dealing with the death of his infant son. Even though the malpractice statute allowed a missed deadline to be excused for “extraordinary cause,” the trial judge refused to do so in this case. The Court of Appeals reversed.

    Link to case: https://scholar.google.com/scholar_case?case=15120433004140740007&hl=en&as_sdt=6,47