Wednesday, December 03, 2008

The Blood Oath Against "Unavailability"

With what I've been hearing lately, eventually when I go on the website to file a "Notice of Unavailability" in federal court, the option won't exist.

Notices of Unavailability are mainly used by civil lawyers, who agree on the setting of their cases. In criminal court, I'll occasionally receive one from a prosecutor who is taking "annual leave" during the pendancy of our case, or is otherwise "unavailable."

I file them sparingly. If I know I have a vacation or another case set for trial, I'd rather the judge know when they are scheduling trials and hearings, than hope that nothing is set at a conflicting time.

I am learning recently that while some judges have no problem with the Notice of Unavailability, this document is interpreted by other judges as secretly saying "judge, I don't give a crap about your courtroom, your calendar, or your role in this case."

Case in point:

A federal judge in another state set a telephone status conference at the same time I was going to be picking a jury in a federal case in Miami. I advised the judge of this conflict. He berated me and said "maybe I'll send you a plane ticket so you won't have to appear by phone."

I've also heard from other federal judges that they do not like when these documents are filed. Why? What's different about me because I'm a criminal defense lawyer?

I know the answer.

It's well-known that there is a perception in both state and especially federal court that if you file a notice of appearance in a criminal case, you are taking the following blood oath against "unavailability."

1, I will not go on vacation or take "long-weekends."

2. I will not have another case pending during the pendancy of this case.

3. I will not ever speak of plays, sporting events, or any other event regarding my children. My wife can handle all of that "fluff." I'll drive them up to college at the appropriate time (if you let me).

4. Doctors appointments? I feel OK.

5. I will not schedule any new or existing client meetings, depositions, or other practice related things that cause me to be unavailable at any time you would like me here.

6. I will drop everything and be in your courtroom in one hour, no exceptions.

7. I will accept that this case is the most important event going on in your courtroom, and my life.

Me, I'll still file the Notice of Unavailability, because sometimes, like you judge, I'm just unavailable.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit