Thursday, August 12, 2010

Magistrate Judge Brown Addresses Futility of "Notices of Unavailability"

Judge Brown Notice of Unavailability

Hi kids, SFL here.

Regular readers of my blog know I have a special fondness for this case.

In an order entered yesterday, Magistrate Judge Brown addresses the rather pointless of practice of filing "notices of unavailability," a personal pet peeve of mine:
The parties should note that there is no local rule in our Court providing for the filing of same, and no federal rule supporting same.  While the Court is not precluding anyone from filing same, and as a matter of professionalism and courtesy they should be considered, the parties should understand that these filings have no legal significance.
He's right.

This is a dated practice of dubious utility.  If you have a conflict with an actual (as opposed to a possible or  hypothetical future) Court deadline, ask the Court to move it.  If you don't want the opposing party to schedule something while you're on vacation, pick up the phone and ask them about it.


Anonymous said...

Hey there. Law clerk here (same one who posted about your table of authorities post). I just want to mention why people, just in case, might want to continue to do these. Here is the scenario: large case, several parties with lots of lawyers. Judge wants status conf. She likes next Thursday, and with all the lawyers in the case, she is not inclined to move it because she knows not everyone is going to be happy. But, if you previously filed a notice if unavailability, she might be inclined to move it for you.


Your previous notice gives you a thread, albeit slight and, of course, of no legal significance. A thread that says "aw, shucks, I have been planning this trip for a long time, and I hoped nothing would come up, 'cause I really didn't want to miss it, and gee, gosh, golly, the worst has happened."

The court will not have noted your notice when you first filed it, but in your motion to reset the status conf., you will mention how you filed it two months ago. Makes the judge the slightest bit more inclined to move the date she said she wasn't going to move.

Anonymous said...

Been hearing this more and more. And SFL, in criminal, the "opposing party" doesn't set things. It's the judge, who is not (necessarily) the opposing party. Well, maybe, but that's another topic altogether.

Here's what I don't understand:

Criminal case, defense attorney files notice of appearance and knows that court is going to set a calendar call in a couple weeks, a month, whatever. Defense attorney knows they will be in Guam contemplating the direction of traveling birds for a couple weeks.

What is so offensive of filing a notice of unavailability? "Hey, just wanted you all to know while you're contemplating a date, that I'll be gone for a while."

Anonymous said...

You're correct that notices of unavailability have "dubious utility." Judges certainly don't have to pay any attention to them: and they often don't. And they ought not to be used as proxies for motions for continuances, as they sometimes are.

Yet if, early on in a case, you know that you're going to be unavailable for a week or two sometime down the road, it's not a bad idea to file one. In this district continuances of trials, for example, are supposed only to be granted on "exceptional circumstances." If you've told the judge at the outset that you're unavailable on a certain date, and the judge in a scheduling order nevertheless sets a trial on that date, you'd of course have an easier time convincing the judge to reconsider.

Though I wouldn't pepper the court with notices of unavailability -- if you're going to file a lawsuit, or defend one, make sure you're available -- filing notices of unavailability hardly works against you. It may, to the contrary, help you out down the road.

Local Lawyer said...

Unrelated: the rothstein BK is getting very interesting. Is Herb about to lose his gig as trustee for a overreaching with these settlements? Me think so.

Anonymous said...

That is BS...if there is no provision for filing them, then why does the electronic filing system have a specific filing for notices of unavailability?

Anonymous said...

It is slightly obnoxious.

Anonymous said...

I can't find anything in the rules that permits mags to file an advisory "Notice to Parties", either. At least the Notice of Unavailability makes note of something worth noting, as the above posters have said. The Notice to Parties is just another waste of words. Judges should limit their interminable need to criticize lawyers, and should instead spend that time ruling on pending matters, many of which have been pending for so long that the lawyers schedule vacations, necessitating Notices of Unavailablity.

South Florida Lawyers said...

Thanks for the great feedback and insights.

Law clerk, I see your point. I had more of the shotgun notice filings in mind when I wrote that post.

I guess I'm not saying to never file one -- if you have a reasonable expectation, in a large case, that something could be set for a time when you absolutely cannot appear -- then yes I could see the limited utility in a notice.

But I recognize the practice entails inconvenience and schedule-shifting, and I'd rather be inconvenienced by the court than to inconvenience the court.

If there is an absolute conflict and dates cannot be re-arranged, you should either suck it up or explain the circumstance to the court and pray for mercy.

Anonymous said...

Showed up for calendar call in SD federal court several years ago for a two week trial calendar to take place in July. Three out of 4 of the attorneys on the case had longstanding summer vacations planned for the weeks AFTER the end of the trial calendar. The Judge starts the proceedings by saying, "For all you civil case lawyers out there, I've decided to make this a 4 week calendar."
When it was our turn up at calendar call, after advising Judge of vacation plans, Judge say, "why didn't you file a notice of vacation/unavailability?" To which we responded, the vacations were after the trial period. The judge was not sympathetic and kept us on his calendar. And when we later that afternoon filed a joint motion to continue, he had his law clerk call first thing in morning and say, "Judge asked me to call to tell you motion will be denied." Outcome: case goes to trial in the "added" weeks and three vacations screwed up/canceled.