NAWCJ

Parental Leave Continuance and Judicial Discretion



By: Sara Spears[1]

December 2019 brought the Florida Supreme Court’s decision regarding amendments to the Rules of Judicial Administration (RJA).[2] The changes are not without controversy, and may have significant implications for civil practice in the near term. There is the possibility that this introduction of rule recognition of parental leave, though specific and limited, may yet influence subsequent expansion of such recognition.

Continuance of trial or hearing is the subject of various Florida constraints. The Florida Rules of Criminal Procedure address continuance for pretrial detention,[3] probable cause determinations,[4] and trial.[5] The standard is within the judge’s “discretion for good cause shown.”[6] Timing of a request in criminal proceedings is constrained; such a motion may only be made “before or at the time the case is set for trial” absent specific exceptional circumstances.[7] The Florida Rules of Probate Procedure mention continuance only in the context of failure to effect timely notice of a hearing.[8] The Florida Family Rules of Procedure address continuance by reference to the Rules of Judicial Administration,[9] and with specific references for injunction proceedings.[10] The Rules of Civil Procedure address continuance;[11] the Committee Notes reflect that “motions for continuance can be filed at any time that the need arises,” and, continuance of a “complex” civil action “should rarely be granted and then only upon good cause shown.”[12] The RJA address continuance in Rule 2.545(e).[13] It is fair to say that continuance is subject to a variety of general and specific court rules.

Continuance is also addressed in the Florida workers’ compensation statute. Continuance of mediation statutorily requires either “the agreement of the parties” or a demonstration “that the reason for requesting the continuance arises from circumstances beyond the party’s control.”[14] Continuance of trial similarly requires the movant to demonstrate “the reason for requesting the continuance arises from circumstances beyond the party’s control.” Once a continuance has occurred, the injured worker’s attorney may move for “an additional continuance” only with the written consent of the worker.[15]

Continuances are a necessary part of legal practice. The variety of constraints and requirements may render the subject challenging from a variety of perspectives. There has been effort to simplify the subject. The Florida RJA were adopted in 1979,[16] pursuant to authority granted the Florida Supreme Court by constitution.[17] The purpose of the RJA is to achieve uniformity of process in court proceedings:

The rules shall be construed to secure the speedy and inexpensive determination of every proceeding to which they are applicable. These rules shall supersede all conflicting rules and statutes.[18]

The overarching nature of these rules therefore apply with consistency in any Florida court proceedings, affecting various, more specific practice rules.[19] The application of Rule 2.545(e) likely accomplished that goal as regards continuances.

A notable exception, of course, is the Chapter 60Q-6 Rules of Procedure for Workers’ Compensation Adjudications, which are promulgated by the Executive Branch pursuant to Legislative delegation.[20] These specific litigation rules are not “court” rules and are not subject to the RJA.[21] Thus, the RJA may bring consistency to Florida court proceedings, but not necessarily to all litigation.

The RJA amendment process is specifically defined therein.[22] It involves consideration of amendment proposals by committees comprised of lawyers and judges. The resulting committee recommendation(s) for amendment are submitted to the Board of Governors of The Florida Bar.[23] Those proposals thereafter adopted by the Board are filed with the Supreme Court for consideration.[24] The submission to the Court must include the records of committee voting,[25] Board of Governor voting,[26] and “any dissenting views of the committee and, if available, of the board.[27]

In 2018, outside of the regular rule-making schedule,[28] Rule 2.570 regarding pregnancy and family leave was proposed “at the Court’s request.”[29] There was significant discussion surrounding perceptions regarding court continuances necessitated by attorney leave. While the subject was based in part upon a Family Medical Leave Act (FMLA) foundation, attorney pregnancy became the focus. The rule eventually proposed by a minority of the Rules of Judicial Administration Committee and endorsed by the Board of Governors provided:

RULE 2.570. PARENTAL-LEAVE CONTINUANCE 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 the later of:

(a) the movant learning of the basis for the continuance; or
(b) the setting of the proceeding for which the continuance is sought.

Three months is the presumptive maximum length of a parental-leave continuance absent a showing of good cause that a longer time is appropriate. If the motion for continuance is challenged by another party that makes a prima facie demonstration of substantial prejudice, the burden shifts to the movant to demonstrate that the prejudice caused by denying the continuance exceeds the burden that would be caused to the objecting party if the continuance were to be granted. The court shall enter a written order setting forth its ruling on the motion and, if the court denies the requested continuance, the specific grounds for denial shall be set forth in the order .[30]

Notably, the majority of the committee opposed the rule.[31] In addition, multiple public comments were filed with the Court.[32] One comment came from the Juvenile Court Rules Committee opposing application of the rule in juvenile proceedings.[33] However, “The majority of the comments received by the Court strongly support the adoption of the new rule.”[34] Oral argument was held before the Court on August 27, 2019.[35]

The proposed rule was gender neutral, focused upon the “parental leave of a lead attorney”; thus, applying to mothers and fathers indiscriminately. It required timely notice by the counsel seeking continuance, and set a presumptive limit on the resulting continuance delay at three months. Any party opposing such a continuance must rebut the presumptive delay by demonstration of “substantial prejudice.” Upon such showing by the opposition, the attorney seeking the continuance must provide a compelling demonstration that prejudice from denial will exceed the prejudice that is the foundation of the objection.

The Rules Committee minority favored the rule; it claimed this would provide predictability and stability in the lives of practicing attorneys and their families.[36] Some also expressed that it would help bridge a gender divide in the profession and provide women more opportunities to advance their legal careers.[37] It remains unexplained how the divide would be affected or remedied, with the rule result affecting only trial scheduling, and the resulting delay presumptively being only three months. The committee majority opposed the rule; it insisted the rule would unnecessarily remove discretion from judges and would complicate matters for all parties involved.[38]

The minority report offered anecdotal evidence to demonstrate current problems with motions for continuance, and respect for attorney’s needs.[39] Several stories described women attorneys being forced to comply with harsh deadlines in the midst of pregnancy and childbirth.[40] Florida Association for Women Lawyers (FAWL) Historian Wendy S. Loquasto wrote a summary of the arguments, claiming that “excessive opposition” to requests for parental leave and “a pattern of opposition and doubt as to the legitimacy of these requests” are among the many reasons the proposed rule is necessary.[41] This may point to an issue of education necessary within both bench and bar, though there are perhaps many judges who well understand the challenges of child birth. As the population of female judges increases,[42] and with some focused education for all judges, it is possible that legitimacy misperceptions and doubts might be diminished or eliminated. It is unclear, from the limited anecdotal evidence, how opposition or doubt was quantified in “excess,” as described. That is, it is difficult to assess how pervasive the issue may be with only anecdotal examples of boorish or downright inappropriate behavior.

The committee majority insisted that limiting judicial discretion with such a rule would be “unwarranted and ill-advised.”[43] After all, the majority pointed out, there are a vast number of reasons an attorney might file a motion for continuance, why should just one of those reasons be given a special rule?[44] A casual observer might question why an attorney pregnancy is more important than pregnancy of a party or some critical witness. The majority further cautioned against establishing a hierarchy of the many personal reasons one might request a continuance; acceptance of such a hierarchy could arguably consequently diminish the value of other equally important continuance reasons. [45]

Aside from such individual reasons to seek a continuance, there are a number of considerations a judge might consider make before granting such a request:[46] overall docket management, rules or laws governing timely trial, and the interests of the various parties to litigation. The proposed Rule 2.570 did not account for such considerations. In this regard, the provisions of FMLA and an attorney’s unique relationship with the courtroom were perhaps prone to conflict. The FMLA requires an employer to allow an attorney unpaid family leave. If a trial or hearing must proceed in that attorney’s absence it may cause consequences or at least additional costs for the client. An unfamiliar attorney stepping in to cover a trial may require significant study and preparation that the continuance-seeking attorney would not. The FMLA provides a predictable answer for the attorney, regardless of the amount of work to be done at the office.[47] The specific circumstances of a trial require a more personal response, not a blanket rule that fails to consider some of the very real consequences of attorney leave.

The majority report emphasized that the conversation regarding parental leave between employee and employer is private – only two parties have a direct interest in the outcome.[48] However, in the courtroom there are a number of parties involved: the judge, opposing attorneys, clients, co-counsel, witnesses, and the attorney who requested the continuance.[49] Considering this array of interests may reveal obvious potential issues with a rule that would limit a judge’s ability to consider such interests, not to mention other factors that affect the case itself. It is noted that the rule’s requirement may cause weighing of prejudice from a continuance denial against the “burden . . . caused to the objecting party,” but makes no mention of the burden caused to others involved in the litigation, particularly witnesses.

Nonetheless, the committee minority insisted that implementation would be the first step towards progress, and any problems with the rule could be resolved as they arise. Critics of that approach might contend that is backwards and advocate more debate before proceeding. In support of the rule, Florida Bar President John Stewart was quoted saying, “waiting for a perfect rule, situation, or program risks losing the faith from the very people these programs are trying to help.”[50] In addition, the minority wrote that trends in the legal profession to provide “more generous” parental leave policies which, combined with implementation of the rule, would cause more male attorneys to request parental leave and level the playing field for female attorneys.[51] It is similarly not clear whether this would be the case, and there is no cited empirical data upon which to make predictions.

The Rules of Judicial Administration Committee later offered a revised rule which “exempts criminal,[52] juvenile,[53] and involuntary civil commitment of sexually violent predator cases from the requirements.” That revision was met with further comments.[54] The Court adopted “new rule 2.570, with several modifications” in December 2019. The final rule is:

RULE 2.570. PARENTAL-LEAVE CONTINUANCE
(a) Generally. Absent one or more of the findings listed in subdivision (e) of this rule, a court shall grant a timely motion for continuance based on the parental leave of the movant’s lead attorney in the case, due to the birth or adoption of a child, if the motion is made within a reasonable time after the later of:
(1) the movant’s lead attorney learning of the basis for the continuance; or
(2) the setting of the specific proceeding(s) or the scheduling of the matter(s) for which the continuance is sought.
(b) Contents of Motion. A motion filed under this rule shall be in writing and signed by the requesting party. The motion must state all of the following:
(1) The attorney who is the subject of the motion is the movant’s lead attorney.
(2) The facts necessary to establish that the motion is timely.
(3) The scope and length of the continuance requested.
(4) Whether another party objects to the motion.
(5) Any other information that the movant considers relevant to the court’s consideration of the motion.
(c) Presumptive Length. Three months is the presumptive maximum length of a parental-leave continuance absent a showing of good cause that a longer time is appropriate.
(d) Burden of Proof. If the motion is challenged by another party that makes a prima facie demonstration of substantial prejudice, the burden shall shift to the movant to demonstrate that the prejudice to the requesting party caused by the denial of the motion exceeds the prejudice that would be caused to the objecting party if the requested continuance were granted.
(e) Court’s Discretion; Order. It is within the court’s sound discretion to deny the motion or to grant a continuance different in scope or duration than requested, if the court finds that:
(1) another party would be substantially prejudiced by the requested continuance; or
(2) the requested continuance would unreasonably delay an emergency or time-sensitive proceeding or matter. The court shall enter a written order setting forth its ruling on the motion and the specific grounds for the ruling.
(f) Criminal, Juvenile, and Involuntary Civil Commitment of Sexually Violent Predators Cases. In a case governed by the Florida Rules of Criminal Procedure, by the Florida Rules of Juvenile Procedure, or by the Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators, a motion for continuance based on the parental leave of the lead attorney is governed by rule 2.545(e) and by any applicable Florida Rule of Criminal Procedure, Florida Rule of Juvenile Procedure, or Florida Rule of Civil Procedure for Involuntary Commitment of Sexually Violent Predators, rather than by this rule, except that in a case governed by Part III of the Florida Rules of Juvenile Procedure, a motion for continuance based on the parental leave of the lead attorney is governed by Florida Rule of Juvenile Procedure 8.240(d).

Thus, the Parental Leave Continuance rule is now applicable in most civil proceedings. The subject of continuance is perhaps less consistent overall. And, it is worth reminding that the RJA does not affect the workers’ compensation practice.

In 1993, the passage of the Family and Medical Leave Act (FMLA) provided the authority to protect American’s employment when time off was needed to address family or personal medical issues.[55] The FMLA broadly provides “12 weeks of unpaid, job-protected leave per year.”[56] However, the mandate applies only to “companies with 50 or more employees,”[57] which may exclude many law firms.[58] Thus, while the law may provide certain employees with protection within that relationship, the litigation issue is more specific. While the FMLA covers employees in those protected workplaces, including attorneys, the new rule provides an implementation parallel specifically for lead attorneys in some litigation. Thus, before this rule, an attorney might be entitled to FMLA leave in the broad context, but professionally precluded from absence by the requirements of client duty and scheduled litigation. The new rule provides clarity with such professional conflict in specific settings. While the FMLA protects a limited population (those who work for employers exceeding 50 employees), the new rule protects attorneys in litigation more broadly. Conversely, the new rule protects only attorneys; while the FMLA may afford witnesses or parties time off work for such family reasons, their birth or adoption will not receive the enhanced continuance consideration.

All arguments considered, it is admittedly difficult to pinpoint the best solution for attorney parental leave. In agreement with the committee majority, presuming a continuance for one specific reason and population is worthy. But, justifying lack of protection for the others with equally valid and important concerns is challenging. This is perhaps the best reason judicial discretion is needed in the practice of law. While judicial discretion is admittedly unpredictable, attorney Ted Greene raised a fair point commenting to the Florida Bar News: “I would guess only 2 or 3 percent of the trial judges get that wrong. Yet, for that 2 or 3 percent, we’re adopting a rule that would prevent the other 97 or 98 percent from using their discretion.”[59]

Notably, though the committee majority did not support the rule, there appears to have been no committee opposition to encouraging greater continuance consistency by educating and informing both judges (as to the demands and needs of family leave parties, attorneys, and witnesses) and attorneys (as to the benefits of making such requests “timely,” as mentioned in the proposed rule). It is possible that the adoption of Rule 2.570 will assist with raising awareness of the birth or adoption leave issues.

Similarly, the Florida Bar’s Special Committee on Gender Bias authored a 2017 report that recommends various research and continuing legal education measures to address parental leave for attorneys.[60] Such measures are included in four of the twelve report recommendations.[61] Arguably, judicial education might have been a more effective solution. Awareness of the family leave issue has been clearly rising with the organization of the Special Committee on Gender Bias, the discussion and adoption of Rule 2.570. It is perhaps possible that such increased awareness could itself ameliorate the problem.

Seeking a lasting and equitable solution will ultimately become a balancing act between the natural desire for predictability and the necessity of justice in all cases. On one hand, the rule could significantly interfere with cases that are set on a strict timeline. Perhaps a client is suffering with each day, and a continuance would only prolong their misery. Before the Court’s exemption for criminal cases, under the proposed rule, someone’s Constitutional right to a speedy trial[62] might have been at stake. However, these might well rise to the counterbalancing “substantially prejudiced” standard that could lead to continuance denial in a particular case. Thus, discretion and balancing of equities remain with the new rule. It is possible that what one judge considers “substantially prejudiced” may not be identical to what another judge concludes.

There are clear problems that must be addressed regarding parental leave for attorneys. Perhaps the 2% of judges that “get it wrong” warrant this change in policy. Rule 2.570 is perhaps not a global solution, but the discussion of family leave and boorish behavior will undoubtedly continue. It is possible that this adoption will in fact spur ongoing discussion and debate, on a path to a more global and consistent solution. Regardless, it would behoove us all for the bar to mount an educational campaign directed at enhancing awareness of the challenges of parental leave, of modern parenting, and an appropriate balance of professional and personal responsibilities.

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[1]      Sara Spears earned her Bachelor of Arts in Legal Studies from the University of West Florida. Her plans include law school and becoming an attorney focusing upon government and public policy. Ms. Spears credits and thanks Hon. David Langham for mentorship and significant contributions to the article text.
[2]      In Re: Amendments to The Florida Rules of Judicial Administration – Parental Leave, No. SC18-1554 (Fla. December 19, 2019). https://www.floridasupremecourt.org/content/download/545415/6145511/file/sc18-1554.pdf, last visited January 9, 2020.
[3]      Fla. R. Crim. P. 3.132(c)(1).
[4]      Fla. R. Crim. P. 3.133(a)(1).
[5]      Fla. R. Crim. P. 3.190(f).
[6]      Id.
[7]      Fla. R. Crim. P. 3.190(f)(3): “unless good cause for failure to so apply is shown or the ground for the motion arose after the cause was set for trial.”
[8]      Fla. Prob. R. Rule 5.550(e)(2).
[9]      Fla. R. Fam. Ct. P. 12.460.
[10]     Fla. R. Fam. Ct. P. 12.610(c)(4)(A).
[11]     Fla.R.Civ.P. 1.460.
[12]     Fla.R.Civ.P. 1.201(b)(3).
[13]     Rule 2.545(e) “All judges shall apply a firm continuance policy. Continuances should be few, good cause should be required, and all requests should be heard and resolved by a judge.”
[14]     Section 440.25(1), Florida Statutes.
[15]     Section 440.25(4)(b), Florida Statutes.
[16]     Fla. R. Jud. Admin., Rule 2.110.
[17]     FLA. CONST. art. V, § 2(a),
[18]     Supra, note 16.
[19]     Among them the: Florida Rules of Appellate ProcedureFlorida Civil Rules of Procedure; Florida Rules of Criminal Procedure; Florida Family Law Rules of Procedure. See The Florida Bar Rules of Court; https://www.floridabar.org/rules/ctproc/#FLORIDA%20RULES%20OF%20PROCEDURE%3A, last visited December 17, 2019.
[20]     Amendments to the Florida Rules of Workers’ Compensation Procedure, 891 So.2d 474 (Fla. 2004).
[21]     There is some involvement of the RJA in workers’ compensation practice through selective incorporation. The Rules of Procedure for Workers’ Compensation Adjudications, Rule 60Q6.126 incorporates Fla. R. Jud. Admin. 2.330 regarding the disqualification or recusal of judges.
[22]     Fla. R. Jud. Admin., Rule 2.140.
[23]     Fla. R. Jud. Admin., Rule 2.140(b)(2).
[24]     Fla. R. Jud. Admin., Rule 2.140(b)(1) and (2).
[25]     Fla. R. Jud. Admin., Rule 2.140(b)(4)(B).
[26]     Fla. R. Jud. Admin., Rule 2.140(b)(4)(E).
[27]     Fla. R. Jud. Admin., Rule 2.140(b)(4)(F).
[28]     Fla. R. Jud. Admin., Rule 2.140(b)(1).
[29]     In Re: Amendments to The Florida Rules of Judicial Administration – Parental Leave, No. SC18-1554, slip op. at 1 (Fla. December 19, 2019).
[30]     See, SC18-1554; http://onlinedocketssc.flcourts.org/DocketResults/CaseByYear?CaseNumber=1554&CaseYear=2018; https://efactssc-public.flcourts.org/casedocuments/2018/1554/2018-1554_petition_70835_e39g.pdf, last visited December 17, 2019.
[31]     In Re: Amendments, at 2 (Fla. December 19, 2019).
[32]    See http://onlinedocketssc.flcourts.org/DocketResults/CaseByYear?CaseNumber=1554&CaseYear=2018.
[33]     Supra, note 31.
[34]     Id.
[35]     http://onlinedocketssc.flcourts.org/DocketResults/CaseByYear?CaseNumber=1554&CaseYear=2018, last visited December 17, 2019.
[36]     Rules Committee “No Action Report,” September 14, 2018. at 6. See https://efactssc-public.flcourts .org/casedocuments/ 2018/1554/2018- 1554_petition_70835_e39g.pdf (last visited January 14, 2020).
[37]     No Action Report 2-3 (2018).
[38]     Id.
[39]     Id.
[40]     Id.
[41]     Wendy Loquasto, FAWL Will Participate in the 8/27/19 Oral Argument on Pending Parental Leave Rule 2.570, Florida Association Women Lawyers, 2018, at 7.
[42]     According to The Gavel Gap, about 30% of state court judges in America are women. https://gavelgap.org/, last visited December 17, 2019.
[43]     No Action Report at 4.
[44]     No Action Report at 2-3.
[45]     Id.
[46]     Id.
[47]     Of course, the FMLA only applies to law firms of significant size. See infra, note 58. Therefore its application might seem prone to disparate impacts on various attorneys.
[48]     No Action Report at 5.
[49]     No Action Report 2-4 (2018).
[50]     Dylan Jackson, Florida Bar President Says Proposed Parental Leave Rule is Not Perfect But is ‘Moving the Needle,’ Law.com, Sept. 5, 2019, 1, https://www.law.com/dailybusinessreview/2019/09/05/florida-bar-president-says-proposed-parental-leave-rule-is-not-perfect-but-is-moving-the-needle.
[51]     No Action Report at 36.
[52]     It is noteworthy that the Juvenile Rules Committee opposed application of the rule in juvenile proceedings even before a draft rule was filed. After the new draft rule was filed, there were filings urging exemption “in criminal, juvenile, and dependency proceedings” filed by multiple organizations. In Re: Amendments, at 2 (Fla. December 19, 2019).
[53]     Id.
[54]     In Re: Amendments, at 3.
[55]     29 U.S.C. §§ 2601-2654 (2018).
[56]     Family and Medical Leave Act, U.S. Department of Labor, https://www.dol.gov/general/topic/workhours/fmla, last visited December 17, 2019.
[57]     Family and Medical Leave Act, U.S. Department of Labor, https://www.dol.gov/general/topic/workhours/fmla, last visited December 17, 2019.
[58]     Most law firms are in the 0-4 employee range. The vast majority have less than 19 employees according to Statista.com; https://www.statista.com/statistics/822038/us-legal-services-market-firms-size/, last visited December 22, 2019.
[59]     Gary Blankenship, Supreme Court Hears Parental Leave Arguments, Fla. Bar News, Aug. 29, 2019, 2, https://www.floridabar.org/the-florida-bar-news/parental-leave.
[60]     Report of The Florida Bar Special Committee on Gender Bias (2017); https://www-media.floridabar.org/uploads/2017/06/Special-Committee-on-Gender-Bias-Report-2017.pdf, last visited December 22, 2019.
[61]     Id.
[62]     Fla. R. Crim. P. 3.190(g).