The Outrage Machine Claims a Victim: A Play in Seven Acts

Act I: Shook, Hardy, and Bacon attorney Paul Reid (who I don't know and have no prior connection with) represents a severely injured plaintiff seeking compensation for his injury. As tends to happen in civil litigation, the case drags on.

Act II: Opposing law firm asks for a continuance, which would further delay trial, in part based on the lead defense attorney's pregnancy and subsequent maternity leave plans.

Act III: Reid files a rather mundane motion opposing the continuance, stressing the harm to his client of further delay. With regard to the pregnancy, he suggests that the trial could be held sufficiently early that it would not interfere with the opposing attorney's maternity leave. (He suggested August, opposing counsel is due in October.) Alternatively, he suggests that one of the other senior attorneys on the case could stand in. He explicitly states that he has no desire to interfere with opposing counsel's maternity leave, but that the relevant legal standard requires the court to consider his client's dire situation.

Act IV: In June, the attorneys argue the motion in front of the trial judge. Apropos of nothing in particular, the judge states, "I don't believe Ms. Luikart got pregnant in response to this case." I can't find anything in the motion or transcript in which Reid suggested or implied that she did. The judge grants a continuance.

Act V: For unclear reasons, the situation suddenly gets publicity this week. Reid is unfairly portrayed as suggesting that opposing counsel intentionally got pregnant to delay the trial.

Act VI: Staci Zaretsky of Above the Law publishes an outraged blog post on the situation, with the following headline and subheadline: Biglaw Partner Accuses Small-Firm Litigator Of Getting Pregnant To Delay Trial: No, a woman would not carry a pregnancy to term and bring a child into this world in a sick effort to delay a case. (The headline was later modified slightly to Biglaw Partner Accuses Small-Firm Litigator Of Using Pregnancy To Delay Trial.) Zaretsky claims, without providing any quotes from either the motion or the transcript (because there aren't any?), that Reid "alluded to the fact that she may have gotten pregnant in an attempt to further delay the proceedings." Zaretsky's post is widely shared on social media.

Act VII: Shook, Hardy throws Reid under the bus (see the update to Zaretsky's post), criticizing his handling of the case, suspending him from the firm pending further investigation, and even removing him from the firm's website.

Now I have three children, and my wife worked through all three pregnancies and had bosses who exhibited varying degrees of flexibilty regarding maternity issues, so I understand why this whole issue hit a nerve. If Reid had acted the way Zaretsky and others have portrayed him as acting, the outrage would be understandable. But I can't square the text of the motion and transcript with that portrayal. And lost in all the outrage is the fact that Reid had a duty to zealously advocate on behalf of his client's interests. ATL has become something of a legally-oriented version of Gawker, so I can't say I expect better. But I would hesitate to recommend to law students that they consider working at Shook, Hardy, if this is how the firm treats an attorney caught up in a click-bait-driven outrage cycle.

UPDATE: It was opposing counsel, speaking sarcastically, who first brought up the issue of whether she got pregnant to delay the trial. Reid noted that defendants had already delayed the trial several times. Opposing counsel responded: "The client chose me. I have a history of working with the client. I'm vice chair of the diversity committee. And that objection is not respectful in any way, shape or form. I'm not trying to delay anything. I did not get pregnant in response to his motion to strike." I can't say I understand what her being vice-chair of the diversity committee has to do with the price of tea in China.

Comments

[Bruce Boyden]

"Has become"?

[EveryOtherUsernameWasTake]

When I was a junior associate in NYC ten years ago, ATL was a great source of info about the goings-on at the big law firms, such as who had layoffs coming down the pipe, who was cutting/giving/matching bonuses, etc. This was in the midst of the financial crisis, so that was good information to have for any junior associate who had even a modicum of concern for his or her career. And sure, it had its fair share of gossip stories, but they were more along the lines of "Skadden summer associate gets wasted and charges $12,000 worth of Crystal to firm."

The few times I've found myself at ATL in recent years, it's read more like the bastard love child of the ABA Journal, Gawker, and Occupy Democrats. And if what Professor Bernstein wrote is true (I haven't read the motion or transcripts but have no reason to doubt him), Reid would be well within his rights to Hulk up and sue ATL out of existence the way the Hulkster did Gawker. That ATL changed the headline to something less inflammatory suggests that even they seem to understand they've gone too far.

[NToJ]

I thought ATL was trash 10 years ago. David Lat provided useful info, but their bread was buttered by manufactured outrage because that's where the biggest hits came. Volokh isn't linking to a post about associate raises because the interested audience is puny compared to the audiences for (1) outrage about gender equality, even if it's ginned up nonsense; and (2) outrage about the existence of (1).

[ThanksForTheFish]

You pretty much confirmed what I saw in my 5 minute read through the site. Like this gem attached to a headline about Kavanaugh:

"There's already an annoying factoid out there that is only going to grow in prominence as the confirmation battle over Brett Kavanaugh heats up. And that's that he's hired more female law clerks than male law clerks ? 25 of the 48 clerks he's hired have been women.

To this I say: whoopdee f*cking sh*t."

That's some quality legal journalism right there.

[An Owl Named Dur]

The only surprise here is that ATL published an ill-informed, hysterical, manufactured, "socially conscious" screed, and Ellie mystal wasn't its author.

[Longtobefree]

Truth, whole truth, nothing but the truth?
Not online, my friend.

[ThanksForTheFish]

What does truth have to do the price of tea in Ann Arbor when we're trying to achieve social justice?

[epsilon given]

And don't forget those clicks! What good is anything -- truthful or otherwise, socially just or not -- if it doesn't generate clicks?

I get the feeling that sites like ATL would happily publish stories about how wonderful it was to be the head of a concentration camp or gulag, helping to remove undesirables, if doing so gave them more clicks.

[Eddy]

I didn't see anything in the motion saying the other lawyer got pregnant to delay the case.

I noticed in the motion that whatever the incident was, it caused the plaintiff to lose one of his lower legs.

Obviously, the defendants say this wasn't their fault, the plaintiff says it was. The whole purpose of the trial is to resolve that key issue.

When King John was forced to concede that he would not delay right or justice to anyone, maybe they should have forced him to add, for emphasis, "not even if the case gets caught up in a social media crapstorm."

[Eddy]

"So you're saying a miraculous instantaneous communication mechanism could interfere with the proper administration of justice? I find that hard to believe. Come on, let's drink some mead before it gets all runny."

[John Rohan]

I read the transcript. The man was injured five years ago, and filed the suit in 2016 and its already been delayed for several reasons. Now they want to delay the trial further until 2019, after Ms. Luikart's maternity leave. What happens if she has a sick child that continues to need her attention? The plaintiff is a sick man himself. How long should he wait for a trial?

Whats happening is that the counsel, Ms. Luikart, is spinning the opposing counsel's words the worst way possible, in order to justify the outrageous demands for more delays. No one said she got pregnant to delay the trial, no one even suggested that. But what she is doing is leveraging that pregnancy to her advantage here, hoping if they delay long enough the plaintiff will either drop the case, expire, or settle out of desperation. It's despicable, and she should be called out on it. And Mr. Reid has a case to sue the Ms. Zaretsky at Above The Law for libel.

[C. S. P. Schofield]

One of that MANY reasons I would make a horrible Lawyer is that I would be strongly inclined to say "Your honor, I don't care if the silly bitch whelps in the courtroom. My client had been deprived of a leg, and five years of delays is unconscionable. Her pregnancy does not constitute a legal reason to delay justice for my client so much as five minutes. If her pregnancy is going to interfere with doing her job it is incumbent on her law firm to step in and arrange some alternative council. It should not fall on my client to suffer any longer."

And both my client and I would doubtless be found in contempt of court.

[perlchpr]

I think I was poisoned for the court room forever by the 1984 Transformers The Movie.

"I will hold you in contempt of court."

"I have nothing but contempt for this court."

[TheAmazingEmu]

Just to be clear, Plaintiff waited three years to file and is upset that it was delayed another two? I mean, the civil court system is horribly slow, but I don't think anyone is blameless for the five year gap.

[Rigelsen]

Just because the court suit was filed in 2016 does not mean the underlying matter was under legal wrangling for much longer. Usually no one wants to go to court except class action lawyers who want their big score even when the supposed plaintiffs get next to nothing. This preliminary process with the companies and insurers can drag on for years. I can't say that's what happened here since it seems as first blush to be a personal injury case not an employment law case. But in the latter, say with worker's comp or disability, it can easily take 3 years for a case to get to court even when the employee acts on day 1.

[phoqueue]

what she is doing is leveraging that pregnancy to her advantage here

Don't waste a crisis.

[An Owl Named Dur]

A defamation case against ATL seems virtually open and shut. They published a demonstrably false statement of purported fact. Worse, that fact directly related to Reid's practice of his profession. The publication caused Reid to be publicly and widely pilloried by an online mob. It also caused him to be suspended from his law firm. What element is missing? What defense exits?

Shook Hardy, on the other hand has performed a valuable public service, informing potential clients that, if one retains a Shook attorney to represent them, and opposing counsel is a woman and plays the Vagina Card, Shook will jettison the client's interests and throw his attorney under the bus to placate the mob. Presumably this also applies minority, gay, trans, disabled, [insert victimized purported group here] opposing counsel. I suspect we shall soon find out. Shook has essentially provided a road map for opposing counsel who find themselves in a sticky position in court.

[ReaderY]

On page 63 of the hearing transcript, Ms. Luikhart says "I implore you to read the objections to the motion to continue." It appears to be that written objection that Ms. Luikhart thought insensitive and was taking issue with at the hearing.

Given this, it appears that the written objection. is the main focus of concern, and we would need to see this document in order to form an opinion whether he actually said what people claimed he said. The hearing transcript alone appears insufficient to form an opinion. It's possible Mr. Reid's statements and tone at the hearing might have involved an attempt to step back from or be more conciliatory than the position taken in the written objection.

Could you link to the written objection document?

[David Bernstein]

Look at the link to the "rather mundane motion." It's rather mundane.

[ReaderY]

Ok. So Ms. Luikhart was responding to something actually there. The response blamed defendants' general dilatory tactics for five years and still no trial, and Ms. Luikhart's response that she disn't get pregnant for purposes of delaying the trial was thus relevant to something he actually said. He used case law regarding continuances for illnesses to justify his legal position, and she did object to classifying pregnancy as an illness and insuinuated doing so is improper.

Aside: If she can get this "comparing pregnancy to illness is sexist" position to stick, I predict she will have a great career ahead of her defending medical insurance companies from pregnancy-related claims by impugning plaintiffs' sexism.

But that said, I agree nothing that happened in the motion or hearing was especially out of line, and her arguments were also within the general line of advocacy. Arguing she and her client weren't responsible for previous delays is obviously a reasonable position, and it looks like her arguments as well as his were reasonable advocacy for their respective clients.

It looks like the whole thing was picked up by vultures, and Mr. Reid has had the misfortune to have a very, very, very gullible boss - someone who it appears can easily be made to cave if the opposing side uses the right tactics and says the right magic spook words, and hence someone who wants zealous advocacy representing them should probably steer clear of.

[Number 2]

Actually, Luikhart accused Reid of (1) comparing her pregnancy to an illness and (2) "minimizing" her role in the case, not of accusing her of getting pregnant in order to delay the trial. As to item (1), I do not understand her objection. The federal Pregnancy Discrimination Act, applicable in the employment context, states that when an employee becomes unable to work due to pregnancy, "the employer must treat her the same as any other temporarily disabled employee." Perhaps Reid should have used the word "disability" instead of "illness," but his point was a valid one if he was comparing her pregnancy to medical incapacity generally. As for item (2), I can understand her displeasure at having her role in the case minimized, but it is not in any way a suggestion that she got pregnant to delay the trial.

Sadly, however, there are attorneys of both sexes that would actually stoop to tactics like feigning illness. I have countered too many of them in my career, including a former employer from decades ago who would get out of meetings, hearings and deadlines by having his secretary falsely claim that he had been "called into court" by a judge at the "last minute."

[NToJ]

I think it's even tamer than that. The original citation in the motion was to "physical condition of either counsel or client". The factors to consider are anodyne if you assume that the counsel or client is innocent in the cause. If he wanted to say she got pregnant intentionally, he'd compare it to seeking a continuance to go on a vacation. Treating pregnancy as seriously as, e.g., hospitalization for a serious illness (Ziegler v. Klein), demonstrates that counsel was not in any way blaming opposing counsel for getting pregnant.

[Number 2]

I wrote my post before realizing that the brief I've been linked to. After reading the brief, it makes her look even worse. He did not compare pregnancy to an illness, and did not "minimize" her role in the litigation.

[David Nieporent]

A partner at my firm needed to postpone a status conference because his child had just been rushed to the hospital with possible meningitis. He asked me to call the court and opposing counsel and let them know. (There was nobody in our firm to cover it for him.)

The opposing counsel demanded a doctor's note.

This was for a status conference(!). There was no possible advantage we could've been gaining by faking this. (Which we were not.) The judge was not happy with the opposing counsel for being so ridiculous.

But of course that's entirely different than postponing trial for six months for a crippled guy.

[Joe_JP]

The "outrage machine" is part of the whole process here and people on this blog is part of it at times.

It is best simply to look at everything as a whole and make a reasoned judgment.

[Joe_JP]

This includes the latest event.

The "outrage" of this very post, for instance, concerning how one should "consider working at Shook, Hardy, if this is how the firm treats an attorney caught up in a click-bait-driven outrage cycle."

The firm is likely aware of the "duty to zealously advocate on behalf of his client's interests" but determined that as a whole it would be best to investigate and so on. It might actually be in the client's interests -- the client of the firm mind you -- to do something like this given the response.

Perhaps, those who want to work at this firm will take everything into consideration here, including their treatment of women and parents, and not focus on one "outrage" getting news attention. How does the firm on average handle such situations? The "outrage machine" like shown in this post is less likely to cover that.

[David Bernstein]

The firm did not simply suspend the attorney pending investigation, but proclaimed him guilty before the investigation, to wit:

"The statements made by Mr. Reid do not reflect the supportive and inclusive culture that Shook, Hardy & Bacon is committed to championing for our clients, staff and lawyers, opposing parties and counsel and others involved in the legal process. Mr. Reid's comments are directly at odds with Shook's advocacy on these issues, and our firm chair suspended Mr. Reid today upon learning of the situation, pending further review by firm management."

What exactly did he say that is "directly at odds" with "Shook's advocacy?"

[David Bernstein]

Btw, isn't odd to say that a firm champions a supportive culture for opposing parties? I don't want my lawyer to be unnecessarily nasty to someone suing me or who I'm suing, but I don't want him or her to be "supportive," either.

[Joe_JP]

No, I don't find it that odd that, e.g., a firm is "supportive" in some general matter, especially to the degree some basic support is required under existing law and policy. Being polite to women lawyers or whatever is "supportive" of them, and net can very well be useful generally for the interests of the clients in various ways. The "outrage machine" at times goes needlessly out of the way to put negative spins on relatively bland things.

[Lee Moore]

a firm is "supportive" in some general matter, especially to the degree some basic support is required under existing law and policy. Being polite to women lawyers or whatever is "supportive" of them

Exactly - "supportive" as in "platitude."

[Joe_JP]

Given my previous remarks, I'm loathe to write conclusively on the firm's general policy as a whole (the "outrage machine" tends to do that, looking at the limited public information at hand and make general arguments like yours on people working at the firm based on this one incident).

But, I would hypothesize they did a limited preliminary investigation of the situation and decided the public statement was warranted. They then will do a fuller investigation to decide the best thing to do with the lawyer in question. "Pending review" seems to mean that any suggestion of guilt is not final.

I'm not going to try to determine what exactly "directly at odds" means without being able to get a full account from that source.

Anyway, particularly since your comment doesn't refute it, I'll hold to what I said.

[J.D.S.]

It appears that Luikhart annotated the transcript that is linked and highlighted. It is a stretch, to say the least, when she annotated that Plaintiff's counsel suggested that she got pregnant to delay the trial. He said that Defendants ask for continuances whenever Plaintiff raised issues of non-disclosure/lack of discovery. I can't fault the judge for continuing the trial, but the faux outrage seems misplaced.

[DjDiverDan]

Actually, the "rather mundane motion" is not so mundane after all. It discloses that: (a) the defendants being represented by the pregnant lawyer completely ignored an April, 2018 deadline to disclose expert witness opinions, a deadline set more than 7 months earlier in a pretrial order; and (b) the defendants didn't even file their motion for continuance until after Plaintiff's counsel moved to exclude those expert witnesses from testifying at trial, at which time they belatedly cited the need for an independent medical examination of the Plaintiff (which they never timely requested before their own expert witness reports were due). Frankly, if I can accept the Plaintiff's objection to the continuance at face value, it looks to me like the pregnant lawyer is using her pregnancy as an excuse to avoid the entirely foreseeable consequences of her own malfeasance, and that in a rational world, i.e., one not rendered insane by manufactured social justice concerns for the "poor pregnant lawyer", she is the one deserving of internet scorn and disapproval.

[Pacific]

Dan is right here. It appears that the defense lawyer could be using her pregnancy to avoid the consequences of failing to comply with pretrial orders and a possible exclusion order. Under the circumstances, the Shook Hardy lawyer was probably obligated to oppose the continuance, and unless the defense lawyer was a solo, her motion would have been denied in most of the CA courts in which I appear. A skillful judge would have conditioned the continue on the exclusion of defense experts or the payment of some significant compensation to the plaintiff, both of which remedies are allowed and probably appropriate based on the limited facts presented.

Interestingly, Shook Hardy is best known as one of the premier tobacco defense firms. The Miami office does a lot of environmental defense, so it is not at all a stereotypically liberal place.

[Lee Moore]

Presumably this is not the first time one of the lawyers getting pregnant has caused said lawyer to ask for a trial to be delayed. What is the normal procedure ?

IANAL but I still have vestigial biology and arithmetic, and counting back on my fingers and thumbs, I deduce that this particuar pregnancy must have got started in January. That the motion to delay the trial was filed in May, shortly after a deadline has been missed, looks a bit suspicious. But maybe it's nomal to delay mentioning to the court that you're pregnant and would like a delay, until four months into the pregnancy. What's the usual drill ?

The other question - which would certainly get me fired from Shook, Hardy and Bacon - is : to what extent does the law currently regard pregnancy as accidental rather than elective ? Although there are always accidents and moments of unplanned passion, these days I would have thought that for the great majority of professional women who get and stay pregnant, it's not an accident.Which is not to say that the lady in question got pregnant to delay the trial - merely that an absence from court due to pregnancy seems more voluntary than otherwise.

[epsilon given]

Take it from someone who has five children, who (along with his wife) actively worked to conceive those children, and who had no particular problems with fertility: even when you are working to get pregnant, actually *getting* pregnant is an accident.

[epsilon given]

I should add, though, that the accidental nature of pregnancies doesn't necessarily justify the defendant's delays.

[David Nieporent]

I wasn't there, but since there's nothing in the transcript or motion to even remotely suggest that the plaintiff accused her of getting pregnant on purpose, I think the most likely explanation is that the judge was being sardonic. Obviously, if the basis for a request for a continuance is a deliberate choice by the lawyer, then the continuance shouldn't be granted. (e.g., elective surgery.) But if it's something out of the lawyer's control, that weighs in favor of granting it. So the judge was just saying "You know, she didn't plan this."

And the SJWs at Above the Law pretty much lied about what happened, along with inventing other bizarre things to be outraged about. "He compared her pregnancy to an illness!" Uh, so what? (Note that that actually cuts in favor of her position.)

[Number 2]

Actually it was Luikhart who first made the comment about not having gotten pregnant in order to delay the trial, as an apparently-sarcastic response to Reid's opposition to her motion.

It frankly seems like a case in which the attorneys have gotten angry at each other and this was just one more battle between them.

[David Nieporent]

You're right; I overlooked that in the transcript. She did say that. But it was in essence a throwaway line making the same point I was putting in the judge's mouth: "I didn't plan this pregnancy to get a continuance."

[PublicName5]

In due course maybe the child will be able to finish litigating the case.

[Bored Lawyer]

Years ago, we started a case shortly after my wife and I had my first child. He was less than 2 months old. The case dragged on, and did not resolve until his bar mitzvah thirteen years later.

[C. S. P. Schofield]

Jarndyce and Jarndyce, the court case at the heart of BLEAK HOUSE, was based on a real case. Jennens v Jennens commenced in 1798 and was abandoned in 1915 (117 years later) when the legal fees had exhausted the Jennens estate of funds.

I don't advocate hanging all the lawyers, but instituting some kind of culling rpotocall gets increasingly attractive as I grow older....

[PublicName5]

I suppose there is an inherently timeless nature to law and justice.

[Rock Lobster]

Something along the line of The Purge movies might be well worth considering.

[JonFrum]

This isn't outrage - this is feminism, 2018-style. It is not an accident, or a mistake. It is the core definition of feminism today. Within contemporary feminism, as in all of today's leftist-based ideological modules, there is no responsibility to the truth, or to facts. Both are patriarchal structures, built to oppress women. So all the moaning displayed here goes in one ear and out the other. While you stand there debating them, they put a knife in your kidney.

[C. S. P. Schofield]

"I can't say I understand what her being vice-chair of the diversity committee has to do with the price of tea in China."

It was her way of saying "I have no qualifications for my position other than being a whining minority bitch, and I'm about to go nuclear on you."

[Number 2]

Reid's correct response to the comment about her being vice-chair of the diversity committee should have been, "And I am the chair and sole member of the Justice for Aswege Committee!"

[Rock Lobster]

Perhaps she meant to say that she was the diversity-chair of the Vice Committee.

But I guess that wouldn't affect the gist of it much.

[Rev. Arthur L. Kirkland]

This episode appears to be a confluence of poor judgment and conduct.

The Mr. Reid's statements and actions seem tone-deaf (although not egregiously so).

Ms. Luikart's statements and actions seem manipulative and abusive.

Above The Law's report seems shoddy.

Shook Hardy's overreaction seems shabby.

Dismissing or discounting the amputee's plight seems profoundly wrong.

[Pacific]

I haven't been here for a while, and it's nice to be able to agree with both Arthur and DiverDan on this issue.

[Jeff Walden]

How was Reid tone-deaf? Saying "Cases involving illness of counsel or a party" instead of "Cases involving impaired physical condition of counsel or a party" or "Cases involving temporary disability of counsel or a party"? This seems like pretty thin gruel for "tone-deaf". Maybe a little awkward, okay -- but it feels like the outrage is exactly of the sort that might naturally ensue if one compared pregnancy to disability -- lacking understanding that pregnancy is treated as such.

I know pretty much zero about this area of law, and both "either there's time for her to argue or an associate can pick up the slack" and "delaying a few months for this is not the end of the world" seem like fairly plausible arguments to me as to what should happen (ignoring whatever the rules/precedents say). But it's hard to see how Reid can be criticized here for a wording choice he would only have to tweak very slightly if he had to do it again -- when that's probably true of every submission to a court, in hindsight.

[Rev. Arthur L. Kirkland]

One report ascribed several strange, tone-deaf statements to Mr. Reid. Without returning to the original report, I recall one along the line of 'I believe in diversity and women's rights and all of that stuff.' The 'and all of that stuff' part tends to signal insincerity.

[epsilon given]

And the point of the OP is that these "tone-deaf" statements have been coming from the judge and the defendant's pregnant lawyer, rather than from the plaintiff's lawyer.

That's what makes this outrage particularly weird.

[croaker]

Guess family court isn't the only place a man can't get a fair hearing.

[phoqueue]

Setting aside David Lat's posts, Above the Law is generally a putrid pile of low quality garbage.

[David Nieporent]

Patrice and Mystal are full-on SJWs. Their coverage of Kavanaugh's nomination has bordered on hysteria.

[Rev. Arthur L. Kirkland]

What's wrong with social justice?

Among people other than retrograde, authoritarian conservatives, I mean.

[David Nieporent]

When one feels the need to qualify or modify the word "justice," the problem speaks for itself.

[CatCube]

My stock answer to this stupid nonsense:

"Social Justice is neither social, nor just. It's just a deceptive label used to smuggle in a pack of left-wing policy prescriptions in the hope that people won't object because of the nice-sounding term."

If it helps to be able to see it from the other side, it's basically the left-wing variant of "human biodiversity"--it's a nice-sounding term that gets used to cover some pretty awful actual policies. (And both "social justice" and "human biodiversity" in their purely theoretical form as used by a few of their respective theorists, may not even be objectionable. But look at what it gets turned into on the ground.)

[loki13]

Ha!

Background- Shook Hardy Bacon is known for their tobacco litigation, hence the old saying, "Where there's Shook, there's fire." Tobacco lawyers, and all that. Hence the reference to the tobacco litigation in the transcript.

So here's the thing- sure, this doesn't need to be picked up and this guy doesn't need to be pilloried, but ... for him to keep saying it's a wait of five years probably rubbed the judge the wrong way, given that the case was filed in 2016. Two years to trial in a PI case in a jurisdiction like West Palm Beach? Not bad at all. And this was the first continuance, and you can't get better grounds.

More importantly, this is all with the background of proposed rule 2.570 which specifically addresses this. So ... yeah, the attorney wasn't being very bright in his arguments.

(Also? ATL was a pretty good website 10 years ago. Haven't been there in ... dunno ... six years? Kind of like this place ... quality goes down after a while.)

[BestUsedCarSales]

My useless posting is bringing this place back to it's former glory. Don't you worry about that.

[Joe_JP]

So, you are saying Bernstein posts were better 10 years ago?

[David Nieporent]

So here's the thing- sure, this doesn't need to be picked up and this guy doesn't need to be pilloried, but ... for him to keep saying it's a wait of five years probably rubbed the judge the wrong way, given that the case was filed in 2016. Two years to trial in a PI case in a jurisdiction like West Palm Beach? Not bad at all. And this was the first continuance, and you can't get better grounds.

You ignore the fact that the defendants had apparently blown all sorts of discovery deadlines, and were trying to get an extension to recover from that.

But in any case, the issue here is not whether the continuance should've been granted. The issue is whether the lawyer should be attacked (or punished by his firm) for opposing it. He zealously represented his client. If the ruling goes against him, it goes against him, but there's nothing outrageous about the position he took.

[loki13]

"You ignore the fact that the defendants had apparently blown all sorts of discovery deadlines, and were trying to get an extension to recover from that."

No, I'm not. You are ignoring all sorts of things that I referenced in my post, and I will expand on in a post down below, since apparently you don't get it.

[David Bernstein]

Funny thing about being vice-chair of the "diversity committee" at that law firm: http://www.murphyandersonlaw.com/attorneys.php

[Eddy]

To be clear, it's not really the details of the case (the *real* details) which are the problem, so much as the made up stuff in that other blog.

[loki13]

Since most people (including the OP) just don't seem to get it, even after reading my last post, I will make this 100% clear. First, let's address the increidbly obnoxious and ill-informed snide remark in DMN's regular update-

"I can't say I understand what her being vice-chair of the diversity committee has to do with the price of tea in China."

As DMN is a professor, and not a practicing attorney, and did not read the comments to see what is happening in that jurisdiction, I will explain further.

The hearing was June 5 of this year. In May of this year, the Board of Governors for the Fla. Bar approved a new rule (Rule 2.570) regarding the granting of continuances when an attorney is pregnant. The rule will almost certainly be approved by the Fla. Supreme Court. This is the type of shorthand you often see in a verbal setting (she is taking offense because she is aware, as is the judge, of what is going on with the status of the rule, and, as I will elaborate, why the rule was needed). This is they type of thing you would understand if you had a desire to understand- just like you would get the references to the tobacco litigation and re-scheduling, if you knew what that meant.

So, to translate- "We all know there is a rule going forward because of dumbass attorneys like this guy, and I can't believe I have to make these arguments."

[loki13]

(Continued below, but cannot edit ... apologize, as I meant DB and not DMN above)

[loki13]

So why did they need a specific rule (technically, not of civil proceudre, but of Judicial Administration) for continuances due to pregnancy? Well, look at the hearing. Look at the OP. Then look at the comments on this blog by men. "I don't mean to offend, but maybe she planned her pregnancy to get out of a discovery issue?" "Don't most professional women plan their pregnancies?" (These are paraphrases)

SERIOUSLY? I'd ask what the hell is wrong with people, but unfortunately I can see it, and this is why the rule was required. But, fwiw, the case had been set for trial within two (2) years after being filed, and this was the first continuance. A continuance would likely be granted even if there wasn't a pregnancy, for much worse grounds. And getting a PI case to trial in West Palm Beach, or similar jurisdiction, in two years is pretty amazing.

So, no, this isn't reasonable. This is so unreasonable that Florida has had to come up with a rule dealing with it. And that's the background for this. Female litigators struggle against quite a bit already; it is amazing that you would have someone argue against a standard continuance for a pregnancy, and yet that is where we are.

[loki13]

Does that mean this person deserves to be pilloried on the web or lose a job? No. Not in the sense that anyone deserves that, and not in the sense that the internet mob ever seems to know what it is doing.

But what he did was, in fact, unprofessional, and the reason that Florida finally proposed and will soon pass a rule. So you don't get people asking if female attorneys are using their pregnancy to get out of a discovery dispute.

I don't even.

[David Nieporent]

Loki,

The rule - it seems awfully odd to argue as if people should have treated the rule as if it did exist when it doesn't yet - seems an awful lot like special pleading. If there is a balancing test under Florida rules for attorney illness to determine whether to grant a continuance, why on earth should female lawyers get an automatic extension for maternity leave, regardless of any other factors? (Yeah, yeah, over the years some people's feelings have been hurt by stupid comments about planning pregnancies. Boo hoo.)

This lawyer did not say, "Boy, this just goes to show why women shouldn't be lawyers, Your Honor. She shouldn't have gotten herself knocked up." All he said was that his client didn't want six months more delay when he was ready for trial, so he opposed any continuance, and that they should accommodate her by holding the trial early on the trial calendar. And if it turned out she couldn't even do that, then there were a bunch of other lawyers in her firm.

[loki13]

So, to start with, rules don't emerge out of nowhere, as I am sure you know DMN. There is a special committee, subcommitte, votes, etc. before going to the Board of Governors- it's almost like a whole process. And as you likely know from your own experience with a state bar, except in unusual circumstances, this is to address a particular need. So this isn't special pleading; this is pointing out that it is these types of hearing that required a change in the rules.

"Yeah, yeah, over the years some people's feelings have been hurt by stupid comments about planning pregnancies. Boo hoo.)"

Bullshit. I hate to call you out on this, but since you seem to have adopted the rather pleasant attitude of using "SJW" is you comments, I will. It's this type of sexist attitude that is the bane of our profession. TBH, I find it hard to believe that this rule is necessary, because I find it hard to believe that as a matter of professional courtesy, this would ever be an issue; if an attorney had any major issue, ESPECIALLY ON A FIRST CONTINUANCE, this would be a matter of course in a state trial.

And yet, for some reason, some attorneys believe its okay to fight so long as they respectfully point out its because opposing counsel is pregnant? Again, bullshit. I've seen more respect given to attorneys who have season tickets to a football game.

[loki13]

"And if it turned out she couldn't even do that, then there were a bunch of other lawyers in her firm."

It's amazing how you stretch yourself to come up with excuses, isn't it? The total firm has ten (10) attorneys- it's not BigLaw. She is the lead attorney and is the trial attorney, and, as noted in the transcript, conducted all the discovery with the exception of one deposition. Why don't you confidently assert exactly which other attorneys that you know of personally would take the case, have a pre-existing relationship with the client, are familiar with the facts, and are able to try it?

[loki13]

And, because you haven't figured it out yet, I was referencing the rule because the VICE CHAIR on DIVERSITY would have been at the just-concluded BOARD OF GOVERNORS meeting that APPROVED THE RULE.

Which means that DB's joke is both tasteless and ill-informed, which was the point.

[David Nieporent]

It's amazing how you stretch yourself to come up with excuses, isn't it? The total firm has ten (10) attorneys- it's not BigLaw. She is the lead attorney and is the trial attorney, and, as noted in the transcript, conducted all the discovery with the exception of one deposition.

Those are arguments why she should have won her motion, not why he shouldn't have opposed it.

Did you note in the transcript how upset the plaintiff was about the continuance?

[loki13]

"Did you note in the transcript how upset the plaintiff was about the continuance?"

In your experience, how often has a trial court at the state level denied a continuance in the trial when-

1. It is the first requested trial continuance; and

2. It is docketed as complex litigation and the case is less than two years old; and

3. The continuance was requested numerous months before the trial docket; and

4. There was a decent chance, given the age of the case and the purported length of the trial, that it would not be called on this trial docket anyway.

So I find it hard to recocile the repeated references to waiting 5 years, when the case had been filed less than two years previously.

[David Nieporent]

In your experience, how often has a trial court at the state level denied a continuance in the trial when-

I virtually only practice in federal court, so I can't answer that. But in my experience, there are numerous federal judges who don't care what your excuse is; the case management plan is the case management plan. They won't grant an adjournment even if both sides want it. Obviously if an emergency arises, even the harshest of judges will accommodate it. But this wasn't an emergency; this was something where they had months of notice.

In my experience, I'd have expected the judge to say, "We'll keep the trial date for August. If we get closer to that date and your doctor says no, then let me know and we'll readdress your request."

[David Nieporent]

I've seen more respect given to attorneys who have season tickets to a football game.

If someone asked for six extra months because it was football season, I think there might be some pushback.

Professional courtesy is a one week extension, not a six month one. You cannot ethically compromise your client's interests merely for courtesy.

It's this type of sexist attitude that is the bane of our profession.

Uh, saying that women should not get special treatment is literally the polar opposite of sexism.

[loki13]

"If someone asked for six extra months because it was football season, I think there might be some pushback.

Professional courtesy is a one week extension, not a six month one. You cannot ethically compromise your client's interests merely for courtesy."

Professional courtesy is, on the first requested continuance of a trial when there are reasonable grounds to do so, to not oppose it or, at most, to file a token opposition.

This happens, and much closer to a trial date.

"Uh, saying that women should not get special treatment is literally the polar opposite of sexism."

No, the casual sexism has been displayed in this thread and in the regular attempts by people, such as that counsel and you, apparently, to deny basic continuances because pregancy is a "dilatory tactic" and professional women should "plan it better."

Seriously; I had to question the wisdom of the rule until I read that transcript and saw these comments. The reason this has to be codified is because people, apparently like you, can't see the unequal treamtent in our profession that happens as a matter of course.

[DjDiverDan]

"Professional courtesy is, on the first requested continuance of a trial when there are reasonable grounds to do so, to not oppose it or, at most, to file a token opposition."

NO. When it appears from the facts - the FACT that Defendant missed or ignored an important discovery deadline to disclose expert witness reports set 7 months earlier in a pretrial order, the FACT that the Motion was ONLY filed AFTER Plaintiff quite properly moved to exclude those experts from trial - that the REAL reason for seeking the continuance was to get a "do over" and avoid the consequences of the Defendants' counsel's own discovery misconduct, then there is NOTHING wrong with zealously advocacy in opposing the continuance. The fact that you can't see that, loki13, makes me doubt either your competence or the sincerity of your rants.

BTW, "equal treatment" of female lawyers means EQUAL; no better, no worse. Giving female lawyers who elect to get pregnant special privileges when it comes to continuances is NOT equal treatment. It allows all sorts of gamesmanship in litigation. Texas used to have a rule requiring automatic continuances for lawyers who were State legislators and the Texas Legislature was in session. Legislators made a very nice side income being hired as "special counsel" for the sole purpose of obtaining those continuances. Is Florida going to provide the same opportunities for female lawyers who get pregnant?

[David Nieporent]

No, the casual sexism has been displayed in this thread and in the regular attempts by people, such as that counsel and you, apparently, to deny basic continuances because pregancy is a "dilatory tactic" and professional women should "plan it better."

Literally nobody said either of those things. Not even that AllLiberalsShouldBeKilled guy.

You seem to be arguing that even long continuances should be consented to as a matter of course. I don't know why you think that. Of course continuances happen. Sometimes there are good reasons to consent to a request for one: both sides want to conduct more discovery or prepare for trial, they want to use the time to talk settlement, it's only a short delay, it won't prejudice anyone, whatever. (And of course some judges won't grant a continuance even if the parties agree.) But if it will prejudice your client (or, for that matter, if your client simply is adamantly opposed), then you can't consent. Nor can you throw the issue by offering only token opposition.

If the woman had been a man and said, "My doctor says that I need to have heart surgery in October, so I'd like to push back the trial until January," and he said, "So let's do it in August, and in the event that doesn't work, let one of the other people in your firm handle it," nobody would have batted an eyelash.

[loki13]

"Literally nobody said either of those things. Not even that AllLiberalsShouldBeKilled guy."

Nope. First one is everywhere-

Among others, who is Lee Moore on the second issue:
"Although there are always accidents and moments of unplanned passion, these days I would have thought that for the great majority of professional women who get and stay pregnant, it's not an accident.Which is not to say that the lady in question got pregnant to delay the trial - merely that an absence from court due to pregnancy seems more voluntary than otherwise"

So, STFU, thanks!

"If the woman had been a man and said, "My doctor says that I need to have heart surgery in October, so I'd like to push back the trial until January," and he said, "So let's do it in August, and in the event that doesn't work, let one of the other people in your firm handle it," nobody would have batted an eyelash."

First, bullshit. We both know about choice of counsel. Second, if someone needs major surgery, it is always a matter of professional courtesy, and no one would argue this.

THIS IS EXACTLY WHY THE RULE WAS NEEDED. BECAUSE OF ASSHOLES WHO DON'T UNDERSTAND THEY ARE ASSHOLES. KTHXBYE!

(I really am sad to learn that you are in this category; while I would not defend the termination or public shaming of an attorney for making bad arguments, THE FACT THAT YOU ARE DEFENDING THIS SHAMEFUL ARGUMENT shows why we have a problem.)

[David Nieporent]

First, bullshit. We both know about choice of counsel. Second, if someone needs major surgery, it is always a matter of professional courtesy, and no one would argue this.

Again: the trial could have been completed before the surgery (er, childbirth).

And seriously, choice of counsel? If you haven't had a judge say, "Counsel, I sympathize with your situation, but there are other lawyers at your firm; let one of them handle it," then you've either led a sheltered life or you're a solo attorney.

1/2

[David Nieporent]

I vigorously disagree with you. I grant extensions all the time. You need another week on those interrogatory responses? Sure. You need two more weeks for your response to my summary judgment motion? Fine. You want another 30 days to file an answer? Okay, though come on we both know that you don't need 30 days. Heck, your client's answer was due two weeks ago and I've already had the clerk enter default and you're just first asking for three more weeks now? Sigh, yeah, whatever. The discovery end date is this Friday and you haven't taken depositions yet, and you want thirty more days? Okay.

This is generally a matter of courtesy and reciprocity. And common sense: if you know the judge is going to grant the extension even over your opposition, then it's just stupid to oppose it. You're wasting your time and your client's money, and all you're doing is pissing off your adversary and the judge. So even if my client told me to oppose one of those types of extensions, I'd tell him to shut up and let me do my job.

And if it were an emergency, I'd consent to a longer one for the same reason.

But the situation presented in the post is not a short extension. It is not an emergency. And it does significantly prejudice the plaintiff. And there are ways to accommodate the situation without the extension. (I'm talking about an early trial date, not using a pinch hitter.) Why you keep ignoring that, I'm not sure.

2/2

[loki13]

Seriously, choice of counsel? Yes. Perhaps it is different in New Jersey, but courts where I have practiced in multiple jurisdictions tend to FROWN VERY HEAVILY upon depriving someone of their right to counsel. In fact, I have NEVER seen a first continuance for a trial not granted in similar circumstances to these.

"But the situation presented in the post is not a short extension. It is not an emergency"

I keep saying this, but bullshit. As we both know, the closer you are to trial, the more reason not to grant a continuance.

The only reason for this opposition was because a Plaintiff's attorney was trying to get advantage, and be clowned himself in front of the court doing so.

The casual sexism displayed by the OP and in these comments is why we can't have nice things.

[David Nieporent]

Perhaps it is different in New Jersey, but courts where I have practiced in multiple jurisdictions tend to FROWN VERY HEAVILY upon depriving someone of their right to counsel. In fact, I have NEVER seen a first continuance for a trial not granted in similar circumstances to these.

Again, I mostly practice in federal court. But NJ actually has a designated trial counsel rule; if you haven't timely filed a notice specifically designating a particular trial counsel, then you expressly waive the right to do so, and the court is empower to expect any member of the firm?partner or associate?to try a case. (The court _must_ grant an adjournment if designated trial counsel is not available, except that the rule expressly allows the court to disregard the designated trial counsel notice in tort cases that have been pending too long, if it would delay trial to adhere to it.) That doesn't mean courts won't grant continuances, even in the absence of a designated trial counsel. But caselaw explicitly makes clear that it is not an abuse of discretion for them not to do so, if you haven't filed a timely notice.

1/2

[David Nieporent]

As for your "bullshit," no. An emergency obviously more justifies a continuance than something one can possibly plan around. Obviously all else being equal, a request closer to trial is more likely to be rejected. But in a situation like this, I would expect a judge to typically do the opposite. After all, if -- as you keep suggesting may happen -- the trial docket is full and the case can't be tried in August, then it makes the opposition moot. Or if she's actually unavailable in August instead of merely potentially unavailable, that makes the balancing factors weigh more strongly in her favor.

2/2

[loki13]

So, what you're saying is that if this was in New Jersey, then she would have been the designated trial counsel.

So New Jersey has just taken the step of codifying what everyone else know and understands to be the strong presumption that a client gets the counsel of your choice.

Good job, there, explaining things I already knew after trying to mock me for pointing out the importance of choice of counsel.

[David Nieporent]

A "strong presumption" that's easily inadvertently waivable. And that in tort cases is ignorable if the case has been dragging on too long.

What I'm actually saying is that if this was NJ, if she had failed to file a notice designating herself as trial counsel, all this "choice of counsel" rhetoric would have been tough luck.

[damikesc]

Seriously; I had to question the wisdom of the rule until I read that transcript and saw these comments. The reason this has to be codified is because people, apparently like you, can't see the unequal treamtent in our profession that happens as a matter of course.

Can you explain why she missed the deadline?

Is it not courteous to, you know, meet deadlines set numerous months earlier?

[David Nieporent]

Can you explain why she missed the deadline?

Is it not courteous to, you know, meet deadlines set numerous months earlier?

Oh, lawyers miss deadlines all the time. There are many reasons, some legitimate, some not. Sometimes it causes serious problems, sometimes not.

[loki13]

If you actually read this, it's more about the Plaintiff in an injury case trying to not sit for a compulsory medical exam.

Read into that what you will.

A great deal of discovery was apprently done in this case.

[David Nieporent]

If you actually read this, it's more about the Plaintiff in an injury case trying to not sit for a compulsory medical exam.

Look, I readily concede that I don't know standard Florida practice, and this isn't the area I practice in anyway, but I find it awfully strange that they would be first seeking a medical exam two years after a PI (yeah, products liability) case was filed.

And reading the transcript, it seems that he's opposing it because it will cause additional significant delays. But even if it's purely strategic: sure, if my opponents had failed to take necessary discovery, I'd be opposing an extension too. Again, there's a difference between courtesy (good) and failing to zealously represent one's client (bad). We have a case in our office right now where, after the close of discovery, our adversary tried to add 13 undisclosed witnesses to the joint pretrial order. There's no trial date set, so our response could've been "Fine; we've got plenty of time to depose them." (Not sure I'd have called it professional courtesy, because our adversary is barely a professional.) But that was not remotely in our client's interest. So we opposed. It would have been malpractice for us not to. And, fortunately, judge mostly agreed with us. (She allowed him to add just one.)

[loki13]

"Look, I readily concede that I don't know standard Florida practice, and this isn't the area I practice in anyway,"

I know I don't know anything about the firms, the people, the area of practice, or the jurisdiction, but I will continue to conjure up arguments.

Okay, then.

[TwelveInchPianist]

"at most, to file a token opposition."

Why would a lawyer file a "token" position on anything? IANAL, but I would think that either you oppose something, or you don't. Does the client know that he's being billed for a "token" motion?

[loki13]

"Why would a lawyer file a "token" position on anything? IANAL, but I would think that either you oppose something, or you don't. Does the client know that he's being billed for a "token" motion?"

Yes, all lawyers lie, but only to you. Do you just make stupid point because it makes you feel good?

Common example- appellate brief is due in a state court. State courts often have abnormally short deadlines for the initial brief, and this can occur near the time the record is prepared. As such, the court might even have a local rule regarding extensions to be granted as a matter of course. Regardless, if you are appellate counsel in this circumstance, you know to grant any reasonable extension.

Recently, I made an a regualr inquiry, "Hey, need the 60 day extension. Any problem?" Opposing counsel told me that unfortunately his client had instructed him to oppose everything (yeah, I know). Anyway, so I filed for the extension, he opposed, and the court granted immediately.

Sometimes you have to go through the motions because your client doesn't listen to you. Just because you advocate zealously for your client doesn't mean you're an asshole, or you don't understand how the Court will view something.

[David Nieporent]

Bullshit. I hate to call you out on this, but since you seem to have adopted the rather pleasant attitude of using "SJW" is you comments, I will. It's this type of sexist attitude that is the bane of our profession.

I do not use the term SJW regularly. I do use it when appropriate. When we're talking about the post-David-Lat-run ATL, it's appropriate. They see everything through the race/sex lens.

(I mean, look at the idiocy of whining/ranting that "He compared pregnancy to an illness!" Setting aside that he didn't do that, and what would be wrong with that in this context -- it's a physical condition that interferes with her work, making it very analogous -- that comparison redounds to her benefit. Illness is a valid reason for a continuance. Now, if he had compared it to a vacation, that would have been stupid and something worth complaining about.)

[loki13]

"I do not use the term SJW regularly. I do use it when appropriate."

If you use it once, you use it more than appropriate.

If you use it more than once in a single thread, as you did here, you are probably using it regularly.

If you don't want to be judged in the same bucket as the MRA/Red Pill/Neck Beard/Gamergate types, then you might want to upgrade your vocabulary.

"that comparison redounds to her benefit."

Well, gee, if you say so, then he should be happy with that, right? I mean, I can't imagine why this was already news in Florida before ATL, and why it had drawn complaints from other female attorneys. There is a phrase for this, but it is annoying in the same way that SJW is.

[loki13]

"I do not use the term SJW regularly. I do use it when appropriate."

If you use it once, you use it more than appropriate.

If you use it more than once in a single thread, as you did here, you are probably using it regularly.

If you don't want to be judged in the same bucket as the MRA/Red Pill/Neck Beard/Gamergate types, then you might want to upgrade your vocabulary.

"that comparison redounds to her benefit."

Well, gee, if you say so, then he should be happy with that, right? I mean, I can't imagine why this was already news in Florida before ATL, and why it had drawn complaints from other female attorneys. There is a phrase for this, but it is annoying in the same way that SJW is.

[epsilon given]

Considering that Social Justice Warriors originally came up with the term, and it means "someone diligently pursuing social justice", calling someone an SJW when that person is pursuing social justice makes perfect sense. Heck, SJWs are *proud* of the term.

Now, it can be observed that SJWs are so zealous that they actively harm people in their efforts. That's the fault of SJWs, though, and not the people who use the term.

[TwelveInchPianist]

So, calling someone a dumbass is OK, but an SJW, not so much.

Makes sense, coming from a dumbass SJW.

[loki13]

It's really hard to feel insulted when the person insulting you is basically ATrollWithManyNames, but with (slightly) less emphasis on gay sex.

I mean, I expect better from DMN, but this is exactly what I expect from you 12".

[TwelveInchPianist]

"I mean, I expect better from DMN,"

Lol, he probably expects better from you too.

[DjDiverDan]

Since loki13 is so hung up on the PROPOSED Rule of Judicial Administration, let's take a close look at the rule.

"A motion for continuance based on parental leave of the lead attorney in the case shall be granted if made within a reasonable time after learning the basis for the continuance unless substantial prejudice to the opposing party is shown. Three months shall be the presumptive length of a continuance granted for parental leave absent good cause for a longer time."

So, (1) the rule addresses continuances for parental leave, NOT pregnancy; she wasn't due until October: NOTa reason to delay an August trial setting; (2) the request must be made "within a reasonable time after learning the basis" - if she's due in October, she got pregnant in January, and knew no later than late February, but filed the Motion for Continuance in May, 3 months later - "reasonable time"? (3) continuance may STILL be denied if "substantial prejudice to the opposing party" is shown. But loki13 thinks that the Plaintiff shouldn't even assert, much less try to show, substantial prejudice from delaying the trial for 6 months. Not buying it.

[loki13]

Since DjDiverDan doesn't know what he's talking about, as usual, and is full of shit, as usual, I will explain this to him in the very simple terms that he can understand:

1. Parental leave encompasses pregnancy, dumbass. The rule was written in a gender neutral way for dumbasses like you.

2. The Motion for continuance was written in April, not May. Dumbass. I hate to break the news to you, but for various reasons, including chance of miscarriage (it's written that her first child was born premature), jinxing, or just a little bit of privacy before announcing, women don't announce immediately. I am amazed that you can do basic math, and work your way backwards, but announcing to a Court in April for an October due date is more than reasonable for most people. Dumbass.

3. There was not substantial prejudice alleged or shown, other than, gee, it's been a long time. Of course, as has been repeated ad infinitum, it's been less than two years since the filing of the complaint, and this is the first request for a continuance, and it was made WELL IN ADVANCE OF THE TRIAL DATE. It's just typical gamesmanship by a Plaintiff's attorney that was not well taken.

Dumbass.

[epsilon given]

I particularly don't see how (1) applies here, because DjDan didn't say that parental leave doesn't apply here, just that it isn't an immediate concern.

As for (2), it's one thing to withhold information from your friends and family, but to withhold relevant information that would affect the proceedings of a professional act? That's negligence.

And as for (3), I find it difficult to accept a six-month delay as non-prejudicial. Perhaps it's not, but it's not at all hard to make the case that it is, too.

[loki13]

Just stop.

(1) is because DJDiverDan had no idea what I was talking about until he googled it, and then tried to make a stupid point.

(2)- you don't know what "negligence" is, so STFU.

(3)- It's not a six month delay, dumbass. And there was a very good chance given the jurisdiction and the age of the case that it never would have called for trial on that docket.

Seriously, though, why don't you enlighten me with your knowledge of how pre-trial and trial dockets work in that jurisdiction? Then tell me what you find "difficult to accept."

Perhaps you can also understand why the judge wasn't having that BS.

[epsilon given]

And I have the impression that you know about as much about the case as I do.

Admittedly, IANAL, and what I know about the case is based on what I've seen in the comment sections, but based on what I've seen, you are FAR too hostile towards people here, who have reasonable reasons to disagree with you.

[TwelveInchPianist]

"you are FAR too hostile towards people here, who have reasonable reasons to disagree with you."

You obviously don't get it. Loki is only hostile because he's so much smarter than the other commentators. Unlike all the other assholes on the internet, who are just assholes.

[TwelveInchPianist]

"Dumbass...Dumbass...Dumbass"

[TwelveInchPianist]

Wow. All the uses of the word "dumbass" in Loki's comment sure make DJ seem like a dumbass.

[David Nieporent]

I was wondering if I had earned tenure or not.

[Tomrigid]

You're a goddamned hero loki; I had to sign up for Reason just to post this comment.

A firm like Shook, old boys through and through, has probably learned the hard way that looking too soft on this type of tomfoolery will come back on them later.

I'm guessing they did a soft force-out of a pregnant associate and they're getting sued and they don't need this headache now. Because they do it ALL THE TIME.

[Michael P]

Do you have any actual facts to support your position, or are you auditioning for an editorship at ATL?

[loki13]

It is truly amazing to me, Tomrigid, how many people have commented on this thread.

Their lack of knowledge is only exceeded by the OP, unfortunately.

[A6Z]

Rules, like statutes, are not in effect until they are in effect. Hinting that you know a rule is under consideration, as you say she was doing, should have no persuasive weight.

And whatever you may have picked up from comments on the Internet, there is still no hint that the opposing attorney claimed she had become pregnant to delay the case. Your attempt to smear him with those comments is low.

There is something wrong with your lawyering if you think it should be persuasive to patronize someone for being a professor, or call the other attorney a dumbass because he inconveniences your wishes, or to say something like "I can't believe I have to make these arguments." Other people sometimes disagree with you, princess. That doesn't make them bad, or even necessarily wrong. Get used to it.

[loki13]

" Other people sometimes disagree with you, princess."

Using sexist language as an insult? Check.

As for the rest-

This is a heading from the motion you are defending- "Defendants' Dilatory Conduct Prompted Their Continuance Requests."

So, yes, the attorney in question was trying to tie in a discovery dispute to a normal continuance. That's more than a hint, dumbass (that's the correct, and non-sexist, nomenclature).

"There is something wrong with your lawyering"

Maybe. Pay me my hourly rate, and I might try to persuade you. Otherwise, STFU.

"it should be persuasive to patronize someone for being a professor"

All practicing attorneys mock law professors for not practicing. It goes with the territory. It doesn't matter as much for appellate stuff, but it is rather insufferable when they are trying to make snarky comments about trial practice outside of their jurisdiction. Those who can, etc.

[David Nieporent]

This is a heading from the motion you are defending- "Defendants' Dilatory Conduct Prompted Their Continuance Requests."

So, yes, the attorney in question was trying to tie in a discovery dispute to a normal continuance. That's more than a hint, dumbass (that's the correct, and non-sexist, nomenclature).

You know that there were two separate continuance motions, only one filed by the pregnant lawyer, right?

[loki13]

"You know that there were two separate continuance motions, only one filed by the pregnant lawyer, right?"

You know that the very first sentence after the heading is-

"Defendants' continuance motions are a reaction to Plaintiff's motion to strike non-
disclosed opinion testimony of four of Defendants' expert witnesses."

I'm sure you have a good point in your head; you should probably make it.

[David Nieporent]

Seriously, Loki, you've gone far off the rails here.

Plaintiff made a motion to strike defendants' expert testimony because of defendants' failure to meet the deadlines. The first defendant responded with a motion for a continuance. Then two weeks later the second defendant said, "Oh yeah, we should also get a continuance because I'm due to give birth two months after the trial date."

That you think this is proper is nutty. Claiming sexism just shows the desperation of the move.

[loki13]

"That you think this is proper is nutty. "

Sorry. You mean me, the judge, and the numerous Florida sources that picked this up before ATL and Professor Bernstein?

Yeah, we are the nutty ones. As opposed to the numerous people here who are commenting with no knowledge of the jurisdiction or standard practice.

[epsilon given]

Having thought about this, if it turns out that this is standard practice in this jurisdiction, I would have to conclude that the standard practice of this jurisdiction is awful, and in dire need for reform.

[damikesc]

If he didn't file the complaint about the delays, couldn't he have been disciplined for not doing his job? I'm sure NOBODY likes discovery and will delay as much as possible. Somebody has to eventually say "Cut it out". do they not?

His firm has undeniably hurt his reputation ("Even his employers said he was wrong. They DID discipline him") as did ATL.

[Eddy]

I wonder what, if anything, this plaintiff's lawyer should have done differently to avoid the controversy while still being a zealous advocate for his disabled client?

[SDN]

"I can't say I understand what her being vice-chair of the diversity committee has to do with the price of tea in China."

It's a (very effective, as we see) implied threat: "Hey judge, better see it my way, or there's a #MeToo moment in your future."

[ThomasD]

Well, yeah.

It's a shame Bernstein cannot make obvious what hechooses to imply. Rather negates his own point when he doesn't.

[Harmless creampuff]

I was pregnant when I started law school and I was pregnant when I took the bar exam. It never occurred to me to use my pregnancy to gain an advantage. I had the same number of absences as everyone else and I had to jealously guard them to ensure that I would be okay if something happened. I was allowed to take my 2nd semester 1st year finals 2 weeks late when our son was born because I had all 2 weeks of my absences in the bank.

The key thing to look at here is when the parties had a status conference around the time that counsel found out that she was expecting. All they had to do then was look at the calendar and either move the trial up or she could have made adjustments for another attorney to take the lead on the case. This isn't rocket science.

[loki13]

/1

Since Prof. Bernstein is incapable of looking into the issues and explaining them, instead of making mocking comments about diversity, here is the relevant background:

The issue of gender bias in general, and of specific issues regarding parental leave/pregnancy has been something of an issue in Florida. In 2017, after a lot of work, the Board of Governors sent a prior version of the proposed rule to the Fla. Supreme Court, which rejected it for procedural reasons (who can propose rules, etc.). Then the rule went to a specialized committee pursuant to instruction from the Fla. S. Ct. to send a report back to the Fla. S. Ct. re: adoption of the rule.

This rule is controversial, because it would codify a single example for continuance - one that doesn't exist for other issues (such as family illness, death & bereavement, or getting ready for the Florida/FSU game etc). The other problem, of course, is that by codifying it as a Rule of J. Admin., it would apply to all sorts of cases, including those that it might not be as applicable for (dependency cases in family law, criminal cases, etc.).

[loki13]

/2

Now, I am simplifying this process and getting rid of a lot of nuance, but this has taken over two years and a lot of procedural in-fighting. Personally, and PRIOR TO THIS THREAD, TBH, I thought this was something that should be at the judge's discretion; after all, we trust judges to handle continuances in a routine fashion, whether it's a bereavement or a long-planned holiday, so why not? But the impetus for this rule did not come out of nowhere; apparently, some judges would regularly deny continuances for parental leave- and by that, I mean pregnancy, because these denials always happened to women, and they were always variants of some sort of, "There might not be harm to the case, but, hey, why don't you just find another attorney? I mean, it's just a pregnancy, not an emergency?" Like.... I know. I had trouble believing it too, but then I understood (and this thread helped a lot) that the casual sexism was rampant. Choice of trial attorney matters- but, hey, if it's a lady, maybe you can just substitute someone else it, right?

[loki13]

/3

So, that's (some of) the jurisdictional background regarding proposed Fla. R. J. Admin. 2.570. In any sane world, we wouldn't need it. And yet ... we have motions like the one brought before this Court.

Next, the players. As I wrote before, there is the old saying, "Where there's Shook, there's Fire." SHB are THE tobacco litigators (defense). That means that, to the extent they have a specialty, it is products liability defense. Again, because of REASONS (involving class decert), SHB and tobacco litigation has taken up a large part of the civil docket in Florida. So that leads to a few observations about the firm:

1. While they have many practice areas and many attorneys, I can certainly understand why they might have a short leash on someone who is a Plaintiffs' attorney in products liability. It's a bad look for the overall firm, especially when they are usually defending from said suits.

2. Because of their tobacco reputation, they really do need to "do better" in almost everything. As one SHB attorney told me- "You can always trust us more than any other attorneys, because we can't afford to lie." In other words, they have a reputation to uphold.

[loki13]

/4

Next, with regards to what all of the procedure before the Court meant. While I don't know the specifics, *if* this was following a standard practice, then there is a trial order that is put out fairly early in the action. This will often be updated and amended. At some point, there is a pre-trial conference (it would appear that had not been held yet).

There are a few things that people have to understand about practice-
1. It is exceptionally rare for a state civil case, such as this one, to be tried within two years of filing.

2. It is exceptionally common for a first continuance to be granted in state court. In fact, I have never, in my life, heard of a first continuance not being granted in state court so long as it was timely filed (in other words, prior to the pre-trial conference). Heck, I've never had a first continuance denied after the pre-trial conference, but at least I've heard of that.

3. When people discuss the "trial docket," they don't mean "this is when the trial is." They mean, "This is when the trial might be." Again, while there might be slightly different rules there, the courts usually over-schedule trials (because of settlements, etc.), with the oldest cases to go first. I don't know what, exactly, they had, but I know that if I had a case under two years old that was on a trial docket, I wouldn't be very confident in it going forward (you still have to prepare, of course ... which is good.)

[loki13]

/5

Finally, the discovery dispute is the exact, stupid type of thing that you see all the time. First, you can't go on just the movant's motion (unless you're stupid, and I hope I don't have to point out any more dumbassery). Look at the transcript of the hearing, and you can quickly see that this is just a regular discovery dispute (P- they aren't giving us everything we need! D- we are giving them everything we have, but we need P's expert to give us damages and life care plan!). Go on, read the hearing transcript. It is the usual posturing over discovery (something which is a waste of everyone's time, yet seems to always happen). That's the first 57 pages of the transcript- stupid stuff that the Court has to deal with. Not purposeful delay. Standard stuff.

So the rest? Well, you can't move the trial date earlier because ... and this is kind of funny.... TOBACCO LITIGATION!

And there's a whole thing that people are allowed to have the counsel of their choice, especially trial counsel. That's why the judge asked who had been handling the case and moving it forward.

[David Nieporent]

First, you can't go on just the movant's motion

For the record, you're seemingly reversing who the movant is.

[loki13]

/6

So the only thing unusual about this is the opposition due to the pregnancy. And there's only two things that are worth commenting about on that-

1. Is it "fair" that this became a thing? Dunno. Nothing is fair. IME, attorneys, on a daily basis, advance worse arguments, do more terrible things, and there are probably 5 million attorneys (rough estimate) in South Florida alone who deserve to be called out for "internet vigilante justice" for doing worse thing than Mr. Reid. It is tiresome that there is never any sense of proportion or nuance on the internet, just scalps for each side, and gloating over how much you've angered someone.

2. OTOH, Mr. Reid's actions were improper. It is the type of casual misogyny that we see all too often. And, even worse, we see it in these threads, with people alluding to how professional women should plan their pregnancies, or (and I have trouble believing some troll actually wrote this) using their pregnancy as an advantage. It's the kind of thing that gets normally intelligent commenters like DMN to write tripe about SJWs and how we're just treating men and women the same way. (I will continue this thought and finalize it in the next post).

[loki13]

/7

Because, to use the example proffered about, if a trial attorney who was a man asked for the same continuance, in the same circumstances, because he had a terrible heart condition, and he required surgery, and the surgeon was booked up until that date ... there is no doubt in my mind that no one would oppose it. Or argue that the chosen trial counsel in a civil litigation case had to hand the case over to someone who hadn't been dealing with the case at all.

...and yet, in the most banal of circumstances (a continuance, in a civil litigation case, first one requested, case is less than two years old, continuance requested long before pre-trial conference), there are people actually arguing variations of-
1. She must have planned her pregnancy for advantage! Either to get out of the trial, or for discovery!
2. She should have reported her pregnancy to the Court immediately! Like, as soon as she missed her next period!
3. She clearly isn't that important to the case- just hand it off to someone else. Who cares who the trial attorney is, right? Clients never care!

[David Nieporent]

Let's suppose that she hadn't made her motion; let's suppose that only the first defendant did, and did so in response to a motion to preclude undisclosed experts. Is there any doubt in your mind that he would have opposed the request for a continuance? All the stuff you say about two years and continuances being common? and yada yada would still be true. And maybe the continuance would still have been granted for those reasons. But it still would not have been unreasonable for him to oppose the request. And it certainly would not have been "sexist." And it doesn't become "sexist" (let alone the joke term "misogynist") just because she tried to play the pregnancy card. Saying that you're sure he wouldn't have opposed it if it had been male heart surgery does not make him sexist; it means you make unwarranted assumptions.

?Which, by the way, is why I try to keep my practice to federal court. NJ isn't so bad, but NY state court is a joke. Deadlines mean nothing, ever. Scheduling orders are suggestions. Deposition notices are just invitations to discuss whether one will ever get around to producing one's client in the next six months.

[loki13]

"Let's suppose that she hadn't made her motion;"

Let's suppose that, once he realized saw the continuance was being requested was due to a pregancny, he had dropped it, we wouldn't be here, would we?

Other than that, how was the play, Mrs. Lincoln

"Which, by the way, is why I try to keep my practice to federal court. NJ isn't so bad, but NY state court is a joke. Deadlines mean nothing, ever. Scheduling orders are suggestions. Deposition notices are just invitations to discuss whether one will ever get around to producing one's client in the next six months."

How many different ways are you going to say, "Hey, I don't have experience with this, but the more I think about it, the more I understand it ... and yet I am going to argue against it because it's reflexive and DERP SOMEONE IS BEING CALLED SEXIST SO SJW!"

[David Nieporent]

She clearly isn't that important to the case- just hand it off to someone else. Who cares who the trial attorney is, right? Clients never care!

But the client with amputated limbs, he sure doesn't care about waiting six more months to get compensated, right?

[loki13]

"But the client with amputated limbs, he sure doesn't care about waiting six more months to get compensated, right?"

Given your areas of practice, DMN, trying to pull the whole, "But the poor plaintiff" if bad look for you, but a perfect example that your "SJW" look isn't going so well.

[loki13]

/8

It's the total casual sexism that goes unexamined. That is evident in these comments. That lies behind an attempt to tie in a routine discovery dispute to a motion for continuance under the rubric of dilatory behavior- an argument that would not be made but for some terrible and dated assumptions on the part of Mr. Reid.

No one deserves internet justice. But I can understand why so very many female Florida attorneys were pissed off by this- because it's emblematic of stuff they no one should have to deal with.

(Stupid character limit)

[David Bernstein]

I haven't read all the preceding, but a glance suggests that some folks are missing that three different lawyers had been handling the case for the defendant until this dispute arose, with the lawyer who became pregnant attending only one of three major depositions. So it was not at all clear that the pregnant lawyer was going to be the lead counsel. And it's not clear if that had in fact been the plan. Either way, the Reid got the firm to commit on the record that she was in fact going to be trial counsel, without that there was no reason for the continuance. And either way, it's idiotic to accuse him of trying to deny defendant counsel of choice before it was clear who was going to be the lead at trial.

[loki13]

"So it was not at all clear that the pregnant lawyer was going to be the lead counsel. ... with the lawyer who became pregnant attending only one of three major depositions. "

THE COURT: Who has been the attorney that has spent primarily most of the time litigating this matter and moving it forward?
MR. REID: Candidly, it's been Ms. Luikart[.]

T. 61:19-23.

MS. LUIKART: Your Honor, I implore you to read the objection to my motion to continue. He not only compares my pregnancy to an illness, he minimizes my role as lead counsel. I have been to the presuit mediation and have handled this from the beginning. I have been the contact person. He talks about videotape depositions. We went to Arizona and took six depos, two of which are videotaped. Those are the only two that were videotaped. The client chose me. I have a history of working with the client.

T. 63-64.

THE COURT: Ms. Luikart, one last question. You are the one trying this case?
MS. LUIKART: Yes, Your Honor.

T. 66:22-24.

Clear enough for you?

[loki13]

"Either way, the Reid got the firm to commit on the record that she was in fact going to be trial counsel, without that there was no reason for the continuance. "

Please feel free to post the motion for continuance. In addition, please identify why, in your experience as a trial counsel in that jurisdiction, you think that would be in doubt.

Finally, are you in contact with Mr. Reid such that you know this was his strategy? If not, do you believe that adding further publicity to this has helped him?

[David Bernstein]

From the opposition to the continuance: "Finally, multiple attorneys for Genie have appeared in critical stages of this case, including a name partner at Ms. Luikart's law firm, Niels P. Murphy, Esq. of Murphy & Andersen, P.A. Mr. Murphy attended the most critical deposition from Genie's perspective (i.e., the deposition of
Genie's corporate representative and safety expert). Another attorney from Ms. Luikart's law firm
attended the equally important deposition of the principal of the Discount defendant entities."

It's not exactly unheard of for one attorney to do much of the pre-trial litigation, but for a the most senior lawyer on the team to run the trial if the case doesn't settle.

[David Bernstein]

THE COURT: Ms. Luikart, one last question. You are the one trying this case?
MS. LUIKART: Yes, Your Honor.

T. 66:22-24.

Which goes to show that this was not 100% clear until the colloquy before the judge.

[loki13]

"Which goes to show that this was not 100% clear until the colloquy before the judge."

Seriously, this is why practicing attorneys have no respect for academics. Didn't I just tell you to find the motion? Hint- the motion is publicly avaialabe (courts in Florida are good like that).

So, even assuming that opposing counsel didn't know who the trial counsel was (which, um, really?). The motion states, at the beginning, paragraph 3, that the Genie's trial counsel is pregnant. So ... can't avoid that.

The court was just confirming this. You understand what happens at hearings in state court, right? Have to repeat for the record? Court is just making sure the predicate is there. But yes, this was 100% clear prior to filing the opposision.

Any more speculation?

[loki13]

So I'm going to point out that you are, again, embarassing yourself because you didn't due basic due diligence. Hint- you can look at the documents in the docket, you might learn something. In addition, you might want to not take an oppositions choice of phrasing as gospel (defending a deposition is rarely the most important task in trial litigation my friend).

Finally, if you haven't contacted Mr. Reid, you might want to do so. Normally, in when you see something like this, there's a lot more underneath going on. A partner doesn't face an issue like this unless, well, you know. "We are having an investigation into X" may mean anything from "We are tired of covering for years of alcoholism" to "He doesn't bring in the money like he should."

...contd.

[loki13]

Which is to say, if this is really all there is to it (there is just Shook, um, smoke, no fire), then you may be doing him a giant disservice by making this a huge thing that is driving google hits on the issue. Because otherwise, it would just blow over. The firm would just issue some mealy-mouthed statement next week (or in a fortnite).

So, yeah, see if this is helpful in making this your latest case in your culture war so you can get the nearly 100% male commentariat of the VC all riled up.

Never thought I'd say this, but man, I miss your posts on Israel. At least in comparison. How's that going?

[David Bernstein]

Eric, give it a rest. You should get a gig as a blogger with ATL, both your demeanor and analytical skills would fit right in.

[loki13]

"Eric, give it a rest."

?

Heh. I have to assume this is directed at me. So I think this should go without saying, but it's beyond funny that, in a comment thread to this particular post (regarding publicizing someone's name to a larger community), and on the VC (home of non-Juan Volokh, EV, and threads about, inter alia, Brian Leiter (again) and Paul Campos), you would write this. But, for the record, you got it wrong.

Just like you got the bit about the trial attorney wrong.

I trust you will locate the Eric you were trying to intimidate (?) and apologize. But if I were him, I wouldn't hold my breath.

Anyway, don't worry. I'm done. It's pretty obvious you don't actually care about learning the facts, and you didn't bother looking at the underlying (publicly available) docket. This is why I barely post on the VC anymore- it used to be a community, it used to be about legal issues, it used to have a lot of attorneys and law students and a good mix of fun posts (Bear Blogging, real estate prices) and whimsy, and people used to care more about the bad apples (The Ace, Mick!!11!!) and the facts than their precious egos.

[loki13]

As I wrote in the last comment, like Mark E. Field, and Joseph Slater, and so many others, I'm outta here.

Enjoy having your MRA fans tell you how awesome you are.

[Andrew Dhuey]

"Not only did Reid compare Luikart's pregnancy to an illness and suggest that she pass the case on to another attorney at her firm, but he alluded to the fact that she may have gotten pregnant in an attempt to further delay the proceedings."
(ATL piece)

I read the transcript and do not see where Reid "alluded to the fact that she may have gotten pregnant in an attempt to further delay the proceedings." ATL still has this up on the site, and that strikes me as a serious libel liability risk. If Reid had in fact made this suggestion, that would be outrageous and he would deserve scorn. But if he did not make that suggestion, then ATL has badly and wrongly tarnished his reputation.

[David Bernstein]

Prediction: calling Loki13 "Eric" will produce entertaining reaction. Result: Yes.

[CJColucci]

It isn't a prediction unless you make it before the fact. Of course, you can say you did, but why should we believe it?