A pregnant lawyer wants a trial delay. Her opponent doesn’t. It didn’t end well for him

The Supreme Court of Florida is to decide on the Board of Governors of The Florida Bar’s proposed Rule 2.570, which concerns whether “parental leave of the lead attorney in a 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.” The decision is due Friday, July 27, 2018.
The Supreme Court of Florida is to decide on the Board of Governors of The Florida Bar’s proposed Rule 2.570, which concerns whether “parental leave of the lead attorney in a 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.” The decision is due Friday, July 27, 2018. Getty Images/iStockphoto

Should a court case be halted if the lead lawyer needs time off for a pregnancy?

That’s the crux of an issue that has pitted lawyer vs. lawyer in a gender battle that will soon be decided by the Florida Supreme Court.

A proposed law granting a break for the lead counsel of a case had a test this summer in a Palm Beach County courtroom. The lead attorney asked for and received from the judge a three-month continuance in the case. The opposing attorney had a problem with that — and he’s been disciplined.

On Wednesday, Miami law firm Shook, Hardy & Bacon suspended its attorney, Paul Thomas Reid, after he criticized a parental leave he felt was unnecessary after earlier delays, the Daily Business Review reported. The suspension is in effect until “further review” after several female attorneys complained when he objected to a continuance in a liability case that involved opposing counsel, pregnant Jacksonville attorney Christen Elizabeth Luikart.

Reid, who was admitted to The Florida Bar in January 1981, had his profile, which was online through Wednesday afternoon, scrubbed from the firm’s website.

“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,” Hildy Sastre, the firm’s administrative managing partner, told Daily Business Review.

Reid has argued that his critics “overstated and misrepresented his position,” according to the report.

Earlier this month, Sarah Hulsberg, one of the attorneys who works with Luikart at the Jacksonville firm, Murphy Anderson, differed with Reid over his position. Hulsberg told the trade journal, “I have a 10-month-old, so I just recently went through this myself, and it’s so incredibly offensive that he wouldn’t be accommodating.”

The controversy has erupted at a key time in Florida law in regard to pregnant attorneys who ask for a break in court to be with their newborns for a period of time surrounding the birth.

“Women in the legal profession regularly face discrimination simply because they’re women, but when those women work as litigators, that bias can take an undue turn. As we’ve noted time and again, basic human courtesy gets tossed to the wind when women lawyers become pregnant,” Staci Zaretsky, a senior editor at Above the Law, wrote in a column posted Wednesday.

As first reported by the Daily Business Review, the new rule, proposed in May by the Board of Governors of The Florida Bar at its Key West meeting, will ask the Supreme Court of Florida on Friday to adopt the amendment. It’s called Rule 2.570, and reads:

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.

If the court denies the requested continuance, the court shall state on the record the specific grounds for denial. If the motion for continuance is challenged by an opposing party proffering a basis for a claim of substantial prejudice, the attorney seeking the continuance shall have the burden of demonstrating the lack of substantial prejudice to the opposing party.

On June 22, Palm Beach Circuit Judge Cymonie Rowe ruled in favor of Luikart.

Luikart had asked for a continuance on a case she is arguing on behalf of Genie Industries and its parent firm Terex Corp, a company that manufactures Genie Lifts that are used to move and place heavy loads, the Daily Business Review reported.

Luikart filed a motion in May asking for eight weeks’ leave after her Oct. 21 due date, and a delay of the trial, which was to begin in October. She asked that it be moved until January 2019.

According to the motion, filed in Palm Beach Circuit Court, Luikart’s doctors advised her not to travel more than a one-hour’s drive from Jacksonville for the final five weeks of her pregnancy, which would be during the trial’s window.

Luikart’s first daughter was born prematurely, she told Rowe at a subsequent hearing on June 22, thus leading to her request to postpone the trial to 2019.

Kim Swanson, whose family was not covered by the Family and Medical Leave Act, returned to work after only five weeks with her newborn daughter, Marley.

The controversy erupted when the opposing counsel, led by Reid from the Miami firm on Biscayne Boulevard, filed an opposition to the motion on May 10, calling Luikart’s request for time off “extreme.”

Reid told the court, “I do not want to look insensitive on that,” but the argument went on to say that since multiple attorneys for Genie had appeared in critical stages of the case, including a name partner of Murphy Anderson, “there are clearly other high caliber attorneys at Genie’s disposal to substitute for Ms. Luikart during her parental leave, and there is ample time for them to transition into a primary role in this matter,” the motion read.

Reid is being “accused of comparing Luikart’s pregnancy to an illness, and suggesting she became pregnant as a ploy to delay the litigation,” the Daily Business Review reported.

Several female attorney spoke to the publication to criticize Reid.

The language in Reid’s motion, on behalf of his client, a man injured while using a Genie lift on the South Florida Fairgrounds in 2013, said that “cases involving illness of counsel or a party do not mandate reversal in all circumstances.”

He went on to argue that Luikart’s parental leave “is not a compelling circumstance justifying the severe prejudice [the] plaintiff will suffer if this matter is continued.”

At the June 22 hearing before Rowe, Reid said that Luikart had previously delayed action on the case repeatedly when another judge had been assigned to the case.

“Every time we have a scheduling order,” Reid argued.

“We’re supposed to be in trial by now. We would have been done by now according to [West Palm Beach Circuit] Judge [Meenu] Sasser’s old trial order. ... Every time we have one of those things, they want it further. So it’s an extreme hardship for my client to now be over five years out after the accident where he’s crippled,” Reid told the court.

Luikart is representing Genie as it’s being sued by Arizona resident Scott Aswege, who was working as an event planner at an auto auction on the South Florida Fairgrounds in April 2013. The platform of a Genie Life flipped up and Aswege fell 20 feet to the ground, according to the suit.

In the court records, Reid argues that Genie’s equipment was “unreasonably dangerous,” that his client has had his lower right leg amputated, that he is in danger of losing his lower left leg and can no longer work in his profession and is disabled.

Aswege has waited long enough, Reid argues.

At the June hearing, Rowe, the judge, insisted both sides of the counsel needed to work together to resolve these delays. “I’m expecting all of you to work together with the understanding that you all still have a trial deadline that comes in August. So you are all professionals. I don’t think you need me to supervise that process.”

But later in the hearing, Luikart blasted Reid’s characterization of her motives to ask for a continuance to 2019, according to the court transcript.

“He not only compares my pregnancy to an illness, he minimizes my role as lead counsel,” she said to the judge. “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.”

Reid countered, “I’m not saying that pregnancy is an illness. I’m saying the factors, when someone is physically unable to participate in a trial for whatever reason, are enumerated in this case. Factors should include the length of a requested continuance, which we’re saying is too long. ... I have no desire to inconvenience Ms. Luikart with respect to the birth of her child, but under the circumstances of this case, it’s not a compelling reason.”

Rowe agreed with Luikart and told Reid at the hearing, “I don’t believe Ms. Luikart got pregnant in response to this case. I do believe that Ms. Luikart is entitled to have some time for her to deliver her child and take care of her child before coming back to resume her duties as an attorney. I would treat all counsel the same. If a male attorney came to the court and asked for a reasonable period of time to spend with their child, I would do that as well because the court has to look above the fray and not the individual issues concerning the case.

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