Trials & Litigation

Florida Supreme Court weighs rule generally requiring judges to grant parental-leave continuances

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The Florida Supreme Court heard arguments Tuesday on a proposed rule that requires judges to grant continuances for parental leave in connection with the birth or adoption of a child—unless a showing of “substantial prejudice” is made.

Proponents said the rule is needed to deal with a statewide problem of denied continuances, while opponents said the rule is too vague and takes discretion away from judges, report the Daily Business Review and Law360.

The Florida Bar committee asked to draft the proposed rule, the Rules of Judicial Administration Committee, forwarded the latest version to the Florida Supreme Court while recommending that it not be adopted. The Florida Bar’s board of governors, however, backed the proposed rule.

The committee majority said it supports parental-leave continuances, but it opposes the rule primarily because it would strip courts of too much of the discretion they need to properly manage cases.

Eduardo Sanchez, past chair of the Rules of Judicial Administration Committee, echoed that concern when he appeared before the Florida Supreme Court.

Sanchez said the rule doesn’t properly explain “substantial prejudice” and could create problems when a lawyer with a parental-leave conflict arrives late in a case, according to the Daily Business Review story. He also suggested that there is not a systematic statewide problem and said it is problematic to elevate parental leave above other concerns that justify a continuance, according to Law360.

Among those supporting the rule was Jennifer Richardson of the Florida Association of Women Lawyers. She said the rule could help the advancement of female lawyers, who might have to pass a case to another lawyer if denied a continuance.

Lara Bach of the Florida Bar’s Young Lawyers Division agreed that the rule could have an impact, according to the Daily Business Review.

“Women are not that often lead counsel,” Bach said. “We are underrepresented in firm partners, as well as judges, and this rule could have a significant impact on that. Because right now, they’re being treated as though they can be sidelined in cases, and marginalized, and simply replaced and assigned with a new attorney.”

The proposed rule partly reads: “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” of the lead lawyer learning of the need for the continuance.

The rule says three months is the presumptive maximum length of a parental-leave continuance, absent a showing of good cause for a longer time.

If a party that opposes the motion for a continuance is able to make a prima facie showing of substantial prejudice, the burden shifts. At that point, the lawyer seeking the continuance has to demonstrate that the prejudice caused by a denied continuance outweighs the burden of granting the continuance.

The judge is then required to make a written order. If the judge denies the requested continuance, the grounds for the denial have to be included in the order.

A notes section of the proposed rule defines “parental-leave continuance” as a “continuance sought in connection with the birth or adoption of a child” by the lawyer seeking the continuance.

“This rule provides a strong presumption that a continuance for parental leave, generally not exceeding three months, will be granted when the request for relief is made within a reasonable time after the basis for continuance is reasonably discernible,” the committee notes say. “However, a continuance or stay may be denied in the sound discretion of the court where there would be substantial prejudice to another party, where an emergency or time-sensitive matter would be unreasonably delayed, where a significant number of continuances have already been granted, or where the substantial rights of the parties may otherwise be adversely affected.”

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