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Should Lawyers File a 'Notice of Unavailability' With Court Before Disappearing on Vacation?

I practiced law for about a decade in the Washington, D.C., area and don't remember ever seeing a "Notice of Unavailability" filed in any case. But, as South Florida Lawyers points out, lawyers do sometimes file such motions (at least in the Southern District of Florida) which alert the court, other lawyers and the parties in the case that the lawyer filing the motion will be "unavailable" for a particular period of time. As in this recent example cited by SFL, the Notice of Unavailability may go on to state, optimistically, that "[a]ll parties therefore shall refrain from filing any motions, notices of hearing, or refrain from setting hearings during this time period."

SFL notes that in an order issued last year, Magistrate Judge Stephen Brown wrote that while there was no rule actually prohibiting someone from filing a Notice of Unavailability, there was no local or federal rule supporting such a filing either. Thus, Brown stated, "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."

So is it worthwhile to file a Notice of Unavailability before you get on board that cruise ship for your three-week trip? SFL seems convinced that it is not. Last August SFL wrote that it was 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.

In SFL's post Tuesday about the subject, SFL reiterates that advice and again advises those who might be tempted to file a Notice of Unavailability not to do it. Others are less critical of the practice, however. One commenter on SFL's original post says that while a Notice of Unavailability lacks any legal significance, it can give you at least a thread of an argument ("I filed this Notice of Unavailability two months ago, judge") to move a status conference that is suddenly set for a date while you are at sea. Another adds that filing a Notice of Unavailability "hardly works against you. It may, to the contrary, help you out down the road."

Have any readers had success using a Notice of Unavailability?

Posted by Bruce Carton on August 31, 2011 at 02:50 PM | Permalink | Comments (8)


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