Daddy Days in Federal Court: Making ProgressPosted April 22nd, 2011 by Joan C. Williams
Even before I read about it in The New York Times, I heard about the decision of Kansas City federal district judge Eric F. Melgren, scolding lawyers who had refused the request of opposing counsel to reschedule a trial on the grounds that a key attorney’s wife was scheduled to have a baby.
The backstory: In 2008, a pretty standard commercial lawsuit was filed. The trial date was set for June 14, 2011. But the due date of the attorney who had handled much of the case prep (notably the interviews of key witnesses) was July 3. The trial was only estimated to last for four days, but the soon-to-be-father, Bryan Erman, was concerned that the if baby came early, he would not get home to Dallas in time for the delivery. So he asked his opposing counsel, John F. Edgar to agree to move the trial back a bit.
Smart move, perhaps? After all, it would be good for Edgar’s client if Erman, who may have been the most knowledgeable person about the details of the case, was not there for the trial.
It may have been a smart move five years ago, but the world has moved forward. Erman’s firm backed him up, and asked the federal judge to intervene and order that the trial be deferred.
As for the lawyers who had resisted the rescheduling, the judge let ‘em have it. “Regrettably, many attorneys lose sight of their role as professionals, and personalize the dispute; converting the parties’ disagreement into a lawyers’ spat,” Melgren’s opinion begins. Noting the “famous disregard that newborns (especially first-borns) have for [fixed] schedules” in arriving, he dismissed the argument that the Kansas trial would be over before the baby was born in Texas.
Melgren dismissed with humor Edgar’s argument that Erman should have mentioned his child’s due date earlier: “For reasons of good taste which should be (although, apparently, are not) too obvious to explain, the Court declines to accept [Edgar's] invitation to speculate on the time of the conception of the Erman’s child.” Also dismissed was the argument that Edgar’s team should carry on without him because he was only one of five lawyers from three firms representing the client. Finally, Melgren dismissed the idea that the Erman would have plenty of time to get home, concluding, “Certainly this judge is convinced of the importance of the federal court, but he has always tried not to confuse what he does with who he is, not to distort the priorities of his day job with his life’s role. Counsel are encouraged to order their priorities similarly.”
This represents an important cultural shift. For years I’ve heard women judges say that women lawyers bring family issues up to them, which they are happy to accommodate in appropriate cases. But Melgren is not a female judge, but a male George W. Bush appointee.
Moreover, the decision was picked up immediately by Above the Law, a prominent blog aimed at younger lawyers, and again on the front section of The New York Times. The message: men who behave this way risk embarrassment from other men.
Note the way the judge, who is clearly a good lawyer himself, undercut Edgar’s strongest argument: that Erman could have mentioned his child’s due date at a pre-trial conference last November instead of waiting until March to try to put off a trial that was to begin in April. This case easily could have gone the other way. Erman could have been reluctant to bring this up. Once he did bring it up and got rebuffed, he could have been too embarrassed to ask his firm to fight it. Once he fought it, the judge could have told him he should have spoken up last November.
But that’s not how things went down. Instead, Edgar ended up looking bad. In The New York Times, he protested, “I did not want to take anything away from Mr. Erman … I have three daughters of my own, one 6 months old.” Note how men are being forced to proclaim their family values in just the way working women always have been. Note how the story is not about some wuss who is so whipped that he can’t do his job, but about a group of men who have their human priorities seriously misplaced.
That’s a big shift, folks. This is not an artist like John Lennon deciding to stay home to care for his son. These are corporate lawyers, being scolded by a Bush-appointed federal judge, who — in no uncertain terms — sends the message that men who see fatherhood as divorced from actually showing up to care for a child are a more than a little off. When conventional men end up being shamed when they attempt to exploit a father’s commitment to actually showing up, well, that’s something new. We’re making real progress.
Cross posted with author permission from the Huffington Post