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March 15, 2017 Letters



Legal Aid Economics
The News and The Florida Bar Foundation would do well by taking an hour to read Bastiat’s The Law or slightly longer to peruse Hazlett’s Economics in One Lesson. There they would learn to not only anticipate the immediate observable results of conduct but also the secondary and unseen results of that conduct. There is simply no way that legal aid funding yields a seven-fold “return on investment” in terms of economic impact on society.

The lion’s share of these purported returns was based on securing Social Security, Medicaid, Medicare, and veterans’ benefits. Yet, those very benefits are merely transfer programs from one group of citizen taxpayers to another group of citizen claimants over time. These alleged “returns” on legal aid funding are the equivalent of moving money from society’s left pocket to its right pocket. Leaving aside moral and policy judgments, aiding claimants to these programs is facilitating redistribution of wealth and nothing more. Moreover, the fact that studies from other states reached similar return on investment conclusions is of no moment if, as I suspect, the same faulty approach to return calculations was utilized.

The Florida Bar Foundation is free to sponsor research that supports its charitable purpose. However, real economic returns on legal aid would have to be anchored in either the more efficient administration of justice (e.g. ADR) or the shifting of legal liability to the most effective (or least cost) avoider of future societal harm. This would be a far more complex calculation that would yield far lower returns than the eye-popping ones asserted by the Foundation’s study.

James Lovely

Parental Leave
Eighteen months ago, I proposed the parental leave continuance rule after speaking to a pregnant trial attorney who was denied a continuance and told to give the case to someone else in her office. Since that time, I have spoken to many women and men who have had similar experiences, several of which are recounted in the March 1 News.

Of course, the problem with the status quo is that women attorneys are being unnecessarily required to give up cases when having a child, which can set back a career. After all, trials in most practice areas are few and far between. For solo practitioners, they may completely lose the client to another firm. And men often do not seek the continuance at all because of the stigma that is attached.

The solution seemed simple; I would propose a rule of procedure that would correct the problem. I had experience with parental leave, having taken it on two occasions and having helped draft the policy for my previous government office.

It did not prove so simple though. The initial proposal resulted in heated debate involving four separate committees of The Florida Bar. The rule that was forged through this debate and recommended by the special committee, however, is an excellent rule. It recognizes that parental leave constitutes good cause for a continuance, while preserving judicial discretion to protect against substantial prejudice.

I would like to share three things I learned through this process. First, parental leave continuances appear to be denied more often than you might think, for both women and men, forcing an unnecessary choice between family and career. This may be in part because the need for parental leave is typically known well in advance of trial, which has resulted in attorneys being asked to find replacements for themselves. Of course, this is exactly the problem and hurts attorneys taking leave, along with their clients. This is why a rule is needed, as opposed to solely education, as some have suggested. Five years from now, this debate may no longer be remembered, but a rule of procedure can be cited in a motion and will lead to more parental leave continuances being granted from now on.

Second, there are a number of judges who have expressed support to me for the proposed rule. The reason: It provides guidance that parental leave continuances should be granted unless there is substantial prejudice, and that the approximate time should be three months. This guidance is helpful to judges in ruling on contested motions, helping to ensure fairness.

Third, it is important that men also take parental leave and be granted these continuances. Indeed, the more men take leave, the more any stigma is reduced and the easier it is for women to take leave without being placed into a non-partner track at a firm.

I am happy to see that both candidates for Florida Bar president have formally indicated their support for the parental leave continuance rule in response to an inquiry from the Miami-Dade Chapter of the Florida Association for Women Lawyers. I am hopeful that the rule will be recommended by the Board of Governors and approved by the Florida Supreme Court.

Craig E. Leen
Coral Gables

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