The Florida Supreme Court heard arguments Tuesday from supporters and opponents of a proposed rule that would create a presumption allowing three-month continuances for male or female lead counsel in a case if they're expecting a baby or new child—unless the other party can show substantial prejudice.

Both sides agreed something should be done about parental leave, but the consensus ended there.

Supporters claimed the rule will curb a systematic, statewide problem with denial and opposition of continuances. But critics said it's too vague and takes discretion from trial judges.

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'Not in this way'

Eduardo Sanchez, past chair of the Rules of Judicial Administration in Miami, argued that continuances shouldn't be automatic as some attorneys with a parental leave conflict arrive late in a case when trial has been set. He also noted the rule doesn't properly explain what "substantial prejudice" is.

Orlando solo practitioner Theodore Green opposed how the rule would shift the burden to the other party who'd have to show why a continuance shouldn't be granted. He estimated about 98% of judges already make the right call.

"For that 2%, we're adopting a rule that would hamstring the other 98% from using their discretion," Green said.

Justice Ricky Polston found credence in that point.

"It seems like this rule anticipates that a judge is going to do the wrong thing, and it tries to keep a judge from doing the wrong thing, expecting that," Polston said.

Green argued the issue should be addressed, but "not in this way."

"To be clear, I don't oppose pregnancy or parental leave being a factor in someone getting a continuance of a case," Green said. "I think a continuance ought to be based on the cumulative factors on both sides."

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Systematic bias?

Supporting the rule, Susan Warner of the Rules of Judicial Administration Committee clarified that clients would have to consent to a continuance, which she said provides clarity for judges and protects clients by affording them "the right to have their attorney, who's invested in the case, who's prepared and knows it, represent them in court."

According to Jennifer Richardson of the Florida Association of Women Lawyers, clients seeking trial often settle out of court when their attorney is denied a continuance. Richardson argued the advancement of women as professionals is directly implicated by the rule, as they might have to pass a case on if denied a continuance.

Justice Barbara Lagoa asked a lot of questions, particularly about why parental leave had to be a stand-alone issue.

"Why should it not just be an emergency family situation?" Lagoa said, pointing to attorneys who've been denied continuances when they or their spouses were undergoing cancer treatment.

Lara Bach said her constituents at the Young Lawyers Division of the Florida Bar have problems obtaining continuances for parental leave and cited one example of a lawyer who was scheduled in court the same day as her cesarean section. Though the rule will apply to both men and women, Bach said gender bias has long plagued her profession.

Lara Bach. Lara Bach of the Young Lawyers Division. Photo: Florida Supreme Court livestream.

"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."

K&L Gates' Miami office hosted a watching party for the oral arguments, inviting all staff and their friends. One attendee, K&L Gates partner April Boyer, said Bach's comments drew cheers.

"That line of questioning, people got pretty excited about," Boyer said. "This isn't to suggest that there shouldn't be leave for other medical emergencies, for other personal emergencies, but I thought they were hiding behind cancer and deaths of family members and things like that to avoid a problem that very much exists."

Boyer served as partner and lead trial attorney in cases while pregnant and said she noticed courts tend to treat medical and family emergencies differently to parental leave.

The parties also disagreed over whether the rule should allow continuances for "a lead attorney," as it's written, or "the lead attorney," and Justice Carlos Muniz asked Warner whether she'd consider changing it. Her answer? "No."

"Already, we've seen in some of the more recent oppositions to continuances that parties or other attorneys will use that to try to diminish a woman—particularly this happens to women—their role in a case," Warner said.

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Compromise?

The court is yet to rule, but a compromise might be in the cards. Justice Alan Lawson floated the idea of a sunset provision, introducing the rule temporarily and addressing any problems with it later.

Florida Bar President John Stewart commended that idea, stressing that there wasn't time to wait for a perfect proposal. This rule, Stewart argued, would advance the bar's missions in promoting diversity, health and mental wellness, meaning lawyers could better serve clients.

"Sometimes perfection is the death of progress, and we need progress in this arena," Stewart said.

Lagoa instead suggested an appellate rule change, requiring courts to give specific grounds for denying a continuance. That way, she reasoned, there would be statistics on who is denying them and why.

But appealing would take time and money that not all clients have, Boyer of K&L Gates highlighted.

She said parents shouldn't have to choose between bonding with their child and trying a case: "I would hope that [the justices] follow the ABA's suggestion and movements around the country, and recognize that some clear guidelines on parental leave are needed if we are going to live in a world in which we want men and women to be able to compete legally in the courtroom and be lead lawyers."

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