Eighteen months ago, I proposed the parental leave continuance rule after speaking to a pregnant trial attorney who was denied a continuance and told to give the case to someone else in her office. Since that time, I have spoken to many women and men who have had similar experiences, several of which are recounted in the March 1 News.
Of course, the problem with the status quo is that women attorneys are being unnecessarily required to give up cases when having a child, which can set back a career. After all, trials in most practice areas are few and far between. For solo practitioners, they may completely lose the client to another firm. And men often do not seek the continuance at all because of the stigma that is attached.
The solution seemed simple; I would propose a rule of procedure that would correct the problem. I had experience with parental leave, having taken it on two occasions and having helped draft the policy for my previous government office.
It did not prove so simple though. The initial proposal resulted in heated debate involving four separate committees of The Florida Bar. The rule that was forged through this debate and recommended by the special committee, however, is an excellent rule. It recognizes that parental leave constitutes good cause for a continuance, while preserving judicial discretion to protect against substantial prejudice.
I would like to share three things I learned through this process. First, parental leave continuances appear to be denied more often than you might think, for both women and men, forcing an unnecessary choice between family and career. This may be in part because the need for parental leave is typically known well in advance of trial, which has resulted in attorneys being asked to find replacements for themselves. Of course, this is exactly the problem and hurts attorneys taking leave, along with their clients. This is why a rule is needed, as opposed to solely education, as some have suggested. Five years from now, this debate may no longer be remembered, but a rule of procedure can be cited in a motion and will lead to more parental leave continuances being granted from now on.
Second, there are a number of judges who have expressed support to me for the proposed rule. The reason: It provides guidance that parental leave continuances should be granted unless there is substantial prejudice, and that the approximate time should be three months. This guidance is helpful to judges in ruling on contested motions, helping to ensure fairness.
Third, it is important that men also take parental leave and be granted these continuances. Indeed, the more men take leave, the more any stigma is reduced and the easier it is for women to take leave without being placed into a non-partner track at a firm.
I am happy to see that both candidates for Florida Bar president have formally indicated their support for the parental leave continuance rule in response to an inquiry from the Miami-Dade Chapter of the Florida Association for Women Lawyers. I am hopeful that the rule will be recommended by the Board of Governors and approved by the Florida Supreme Court.
Craig E. Leen
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|Author:||Leen, Craig E.|
|Publication:||Florida Bar News|
|Article Type:||Letter to the editor|
|Date:||Mar 15, 2017|
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