Courts

The Parental Leave Rule: Give It A Fighting Chance

Simply put, the Parental Leave Rule was never tested. Until now.

By Jennifer Feld and Alexandra Paez  
on
Shot of a pregnant businesswoman working in an office Tying together some loose ends before maternity leave

(Image via Getty)

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Jennifer Feld and Alexandra Paez to our pages. Click here if you’d like to donate to MothersEsquire.

A small firm practitioner on hospital bed rest was thrown into panic after her motion to continue a trial was denied without hearing.

A partner at a large firm was asked by opposing counsel to relinquish handling a case — for which she had specifically been credentialed — in order to expedite a deposition during her maternity leave.

In-house counsel was sanctioned with attorney’s fees on an ex parte motion to compel late discovery responses due during her properly noticed maternity leave.

Lead counsel for a major sports stadium group was forced to file motions containing increasingly personal information after his request for a paternity leave continuance was denied three times and even then only after a widely publicized article criticizing the judge’s ruling.

In many other cases, COVID-19 administrative orders were issued, some denying requests for continuances without a hearing.

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Does The ‘Parental Leave Rule’ Carry Any Weight At All?  

I remember the day clearly, in December 2019, when I celebrated the ruling by the Florida Supreme Court: the landmark adoption of Florida Rule of Judicial Administration 2.570. Leading up to the hearing in August 2019, I had the good fortune and privilege to participate in the many hours of writing, gathering testimonials, and preparing counterarguments for the hearing.

Fla. R. Jud. Admin. 2.570, affectionately referred to as the “Parental Leave Rule,” states that the “court shall grant a timely motion for continuance” in the absence of a written finding by the court 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” (emphasis added).

Effective as of January 1, 2020, there is no doubt that the Parental Leave Rule was a win.

Unfortunately, two and a half months after its implementation, the world shut down.  Courts closed, Zoom had its heyday, trials were continued, and attorneys worked from home.

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Simply put, the Parental Leave Rule was never tested. Until now. In the wake of the onslaught of COVID-19 administrative orders, the Parental Leave Rule is finally being put to the test. However, given the aforementioned anecdotes, the Parental Leave Rule appears to have come up wanting.

In May 2021, the Florida Association for Women Lawyers published a statement regarding their concern regarding the Parental Leave Rule in the wake of the new COVID-19 administrative orders. “With so many cases waiting in the wings to move forward, in most circumstances, a three-month continuance pursuant to Rule 2.570 should not prejudice any one case over the many others that could be scheduled in its place. Particularly where there is no objection to the continuance by the opposing party, the courts should not deprive a client of its lead counsel.  The adoption of Rule 2.570 was an important step forward for gender equality in our profession. FAWL encourages the judiciary to continue this path forward, even under the unusual circumstances of these times.”

FAWL goes on to suggest that a specific note to the court should be submitted along with proposed case management orders. “FAWL suggests, upon agreement of the parties, that a date up to three months out is proposed in the case management report with a note to the court that the date outside of the time required by the administrative order is due to the birth or adoption of a child and that a motion pursuant to Rule 2.570 will be filed contemporaneously with the case management report.” Id.

The problem is that the Parental Leave Rule specifically requires a motion and therefore a hearing. As many of us in the legal field know, timing is everything. I just casually checked hearing dates on the local court docket and found that they are booking about two to three months out. I decided to switch gears and look to courts on Florida’s east coast — where I stumbled upon an article on Law.com called “Fast Burn: Understaffed South Florida Courts are Denying Continuances, Rocketing Through Dockets.” Seems like an attorney requesting a hearing would not have much luck there either.

If a rule of judicial administration requires a motion and hearing, but an administrative order/case management order dictates that those motions will likely not be granted, which prevails?

The authority to issue administrative orders is established by Article V, section 2(b) of the Florida Constitution. The chief justice of the Florida Supreme Court has unilateral discretion on whether to recognize an emergency that justifies entry of “such order or orders as may be appropriate to suspend, toll, or otherwise grant relief from time deadlines.” See Fla. R. Jud. Admin. 2.205(2)(B)(4), (5).

According to the most recent Supreme Court Order No. AOSC21-17, chief judges “Must direct all judges within their circuits to strictly comply with Florida Rule of General Practice and Judicial Administration 2.545 (a), (b), and (e), which respectively require judges to conclude litigation as soon as it is reasonably and justly possible to do so, to take charge of all cases at an early stage and control the process of the case thereafter until it is determined, and to apply a firm continuance policy allowing continuances only for good cause shown.”

Fla. R. Jud. Admin. 2.545(e) provides the general policy for continuances: “Continuances. 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. All motions for continuance shall be in writing unless made at a trial and, except for good cause shown, shall be signed by the party requesting the continuance. All motions for continuance in priority cases shall clearly identify such priority status and explain what effect the motion will have on the progress of the case.”

The Parental Leave Rule is the only other mention of continuances in the Rules of Judicial Administration. The rules were amended in 2019 to provide this special amendment. The effect of the promulgation and codification of the Parental Leave Rule is that it presumes good cause.

The trial courts are misinterpreting the Supreme Court’s emergency orders. The Supreme Court in its emergency administrative orders provides guidance on general continuances under Rule 2.545 (e), but does NOT explicitly limit good cause continuances under Rule 2.570.  Again, parental leave is obviously a good cause for a continuance, because the Supreme Court itself adopted the rule.

Without an opportunity for a hearing, and with the courts stifling continuances, the Parental Leave Rule has not even been given a fighting chance. We encourage the courts to grant good cause continuances, as they comply both with the Supreme Court Order No. AOSC21-17 and Fla. R. Jud. Admin. 2.570. It is also the right thing to do. Being a lawyer is a noble profession, but at the end of the day, it is just that — a profession. Welcoming a child into this world, which likely only happens once or twice in a career, is a time to be cherished. The toll that the emergency administrative order takes on the mental health of lawyers who are balancing learning to become a parent while juggling often too many cases is overwhelming.

The need to move cases along is understandable, and I am sympathetic to judges who are under pressure to keep their dockets moving. However, it should not be done at the expense of the mental health and well-being of litigators. I do not know of a single litigator who is not overworked, overburdened, stretched too thin, or stressed out. Stress is one of the most significant challenges faced by Florida attorneys, particularly in the post-COVID practice environment. A story concerning mental illness suffered by a practicing Florida attorney even recently appeared in the national news. The courts must not lose sight of the fact that the litigators are people too, with families and children that sometimes require their needs to be put first. That is one of many reasons why the Parental Leave Rule was created. That is sufficient good cause.

There is a sufficient basis to assert that courts denying continuances based on parental leave without a hearing is in violation of the Florida Parental Leave Rule, provided that the aforementioned criteria have been met. However, the Florida Supreme Court has not made an explicit ruling as to this apparent conflict. Until a specific ruling has been made, it is up to litigators to continue fighting for their right to parental leave and the trial courts to enforce Fla. R. Jud. 2.570.

In short, the Parental Leave Rule should prevail despite the COVID-19 administrative orders, and courts should grant these continuances for good cause.

Jennifer FeldJennifer Feld is a full-time Florida Supreme Court Certified Circuit Civil mediator at Feld Legal. As a full shareholder at a firm with over 200 attorneys in Florida, Jennifer was a civil litigator for over a decade. Jennifer is an advocate in and out of the courtroom. Her experiences as a mother and a trial attorney have made her a pioneer for maternity leave and lactation space awareness. As a devotee to community service, Jennifer holds a position on Statewide FAWL (Florida Association for Women Lawyers) as the Lactation Task Force Chairperson. She sits on the Boards of PJ Library and TJFS, which provides a community-wide food bank, financial and social wellness services to those in need.

Alexandra Paez serves as Of Counsel at Kubicki Draper. She graduated cum laude from the University of Florida, where she earned her Bachelor of Arts in Political Science and History. She earned her Juris Doctor from the University of Florida Levin College of Law, graduating cum laude. Alexandra practices in the areas of bad faith and claims administration defense, automobile negligence and premises liability.

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