'Although this trial will only take three days," the plaintiff's lawyer was telling the judge, "it's a serious case. The defendant improperly fired my client four years ago after 15 years of exemplary service, just so they could hire a younger man at four-fifths the salary. He hasn't been able to find employment around here; he's working in California, at a big pay cut."
"Well," said the judge, "scheduling shouldn't present a major difficulty. This is mid-June. I'll hold a slot for you starting Aug. 15. We'll empanel then or, at worst, in that week."
"Your Honor, there's a complication." It was the defendant's lawyer speaking. "As you can see, I'm expecting; my due date is Aug. 1."
"No problem," said the judge. "Under the circumstances, I'll be glad to accommodate you. I think I can adjust the July trial schedule enough to let you begin no later than the 12th."
"I'm afraid I can't," defense counsel said.
"You're not suggesting that this case needs further preparation, are you? It's been on the docket more than three years." The judge was beginning to wonder whether some as-yet undisclosed reason was driving the lawyer's desire to put off the trial. From experience he knew that a professed need for "additional discovery," that is, more investigation, often cloaked an attorney's unwillingness to stand and deliver.
"Not at all," she answered. "We're ready. It's just that I've been strongly advised not to begin trials after July 1."
This, the judge said to himself, is beginning to lead into deep water. "Well," he said aloud, "why don't we wait until after your pregnancy leave. When will you be coming back?"
"My firm is really very liberal about that. I expect to be on the job again no later than Feb. 1."
"But," the judge said - or, more accurately, spluttered, "that means you won't be available to try this case, or any case, for seven months."
"I'm sorry, Your Honor, but some things are more important than trials."
Now the judge's internal temperature began to rise. Everything else aside, he would regard as intolerable a seven-month continuance - delay - in litigation this old and ready for an expected short trial. Normally, if a lawyer were going to be out of action that long, the judge would insist on the client's obtaining other counsel.
The plaintiff's lawyer, as though reading the judge's mind, raised a vehement objection: "Judge, my opponent practices in a 50-person firm that does nothing but try cases. If she's not available, surely someone else is. This is not a very complicated case. If you stick to the mid-August date, successor counsel will have two months to get ready. That's about a month more than anyone could possibly need."
He's right, thought the judge, only to have the defense lawyer speak first. "My client is entitled to have the court - and the plaintiff - honor the client's choice of counsel. The client wants me to try this case, and I intend to do so - when I am able."
"My client has rights, too," the plaintiff's lawyer said loudly. "He's had to wait years for his day in court."
The judge could feel his blood simmering. He prided himself on being not only sensitive to gender-based issues, but proactive in dealing with them. Yet he knew that if a male lawyer wanted a seven-month continuance for whatever reason, he would either deny it outright or require the defendant to name a new lawyer. Justice delayed was, especially in this case, justice denied.
Should it make any difference that the lawyer was a woman? It should not; but the judge knew it did. Of course, one could say that if a lawyer, for whatever reason, wants to put her (or his) career on hold, that is a personal choice that should not influence a court either way. Some law firms actually permit "sabbatical" leave, to allow a lawyer absolute freedom from practice, and a chance to recharge the intellectual batteries.
Yet the judge knew in his bones that a pregnancy is not a sabbatical, and that applying the same rule to both would run the risk of penalizing a woman simply because she is a woman. On the other hand, should one punish the plaintiff simply because opposing counsel is female?
"Before anybody says something regrettable," he said, "why don't we take a few minutes to reflect? The court will stand in recess."
*Hiller B. Zobel sits on the Massachusetts Superior Court.
The plaintiff has long awaited his day in court to challenge his loss of a job; the opposing lawyer's maternity leave collides with the trial date.
If you were the judge, what would you do?
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