Trials & Litigation

Judge agrees to parental-leave continuance after denying three requests, warning of sanctions

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A Florida judge has had a change of heart after warning that a lawyer who filed three motions for a parental-leave continuance would be sanctioned if he files a fourth request.

Judge David C. Miller of Miami-Dade Circuit Court agreed to continue the case in a Sept. 6 order, reports in stories here and here.

Miller took a harder line in a Sept. 2 order when he said the case is “past the time the Florida Supreme Court has determined to be reasonable for the conclusion of the case.”

The lawyer seeking the continuance, Lewis Brisbois partner Alexander Fumagali, said in his third motion for a continuance that he was filing again because the court “denied the first two iterations without explanation.” He is the lead lawyer for the defendant in a personal-injury suit.

Fumagali said in his motion that his first child will be born during a scheduled October 2022 trial. He delayed requesting a continuance until August because he wanted to make sure his wife’s pregnancy was stable following previous “setbacks and difficulties,” his motion said.

Fumagali’s client and opposing counsel agreed to the continuance, he said, and that should entitle him to get a pushed-back trial date under Florida Rule of Judicial Administration 2.570, which took effect in January 2020.

The Florida Supreme Court adopted the rule after proponents said it was needed to deal with a statewide problem of denied continuances. The rule requires judges to grant a lead attorney’s request for leave for the birth or adoption of a child, if certain conditions are met. 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.

Before Miller granted the request, Fumagali said he was considering an appeal. At issue, he said, was whether a Florida Supreme Court instruction to expedite cases due to pandemic backlogs takes precedence over the parental leave rule. discussed the issue with Jan Jacobowitz of Legal Ethics Advisor and an adjunct professor at the University of Miami School of Law. She said that, on its face, Miller’s earlier denial appeared to be inconsistent with the parental-leave rule. But she said Fumagali was seeking to continue the case from October until spring or summer of 2023, which is longer than the presumptive three-month continuance cited in the rule.

Miller said in his Sept. 2 order that someone else from Lewis Brisbois would need to try the case, a suit filed by pedestrian Lillian Welborn against South Florida Stadium, the owner of Hard Rock Stadium. She says she was injured when an employee hit her with a golf cart in the parking lot. Fumagali represents South Florida Stadium, described by as the entity behind the Miami Dolphins franchise.

In his new order, Miller said the case came up for reconsideration and he was continuing it “given the circumstances relating to defense counsel’s need for parental leave.”

Jacobowitz told she was glad the judge changed his mind. “I am sorry that the attorney had to share so much detail about the personal challenges that he and his wife have confronted in their attempts to become parents,” Jacobowitz said. “Unfortunately, the legal profession seems to need occasional reminders that the practice of law needs to include civility and a sense of humanity.”

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