The COVID-19 pandemic introduced some new flexibility into the traditionally rigid legal workplace. For those working in downtown offices, the traffic on the daily commute was certainly better. And remote work options allowed counsel to take depositions from the comfort of their home offices. Got a hearing coming up on a motion? Fine, let’s conduct it via Zoom. Big oral argument coming up? No problem — the court says that can be done on Microsoft Teams. The pandemic and related stay-at-home orders certainly required some unprecedented understanding and adaptability from participants in the legal system, be they lawyers, judges, clients or court staff.
Flexibility from the courts is not always obtainable, though. On this blog, we have had two occasions to review efforts to reschedule oral argument at the Ohio Supreme Court: check out our post from 2020 and our post from 2021. In short, it’s an uphill battle.
Two recent decisions by Ohio appellate courts — one from the Ohio Supreme Court and another from the Second District Court of Appeals — are sobering reminders that attorneys still practice in a field that at times demands in-person court appearances and strict adherence to procedural schedules, even when attorneys are faced with wrenching personal circumstances, including their own health emergencies or those of a close family member.
In Part I, we’ll examine a recent Ohio Supreme Court decision issued on a Sunday denying a writ to continue a trial when counsel needed bed rest for a pregnancy. In Part II, we’ll examine a Second District decision where trial counsel saw his client’s case dismissed after counsel failed to appear because he was dealing with his sister’s health emergency. Both cases provide lessons for practitioners and their clients.
Part I: Ohio Supreme Court rejects pregnant criminal defense lawyer’s emergency request to stay a trial while she went on bed rest and delivered twins
On May 3, 2023, a criminal defense attorney (Chelsea Panzeca) and her client (Ronald Shepard) filed an action in the Ohio Supreme Court, seeking a writ of mandamus compelling the trial judge in Shepard’s case (Highland County Common Pleas Judge Coss) to continue Shepard’s trial for 12 weeks so that Panzeca could begin doctor-recommended bed rest associated with her pregnancy (with twins) and deliver the babies. Two days later, on Friday, May 5, the Relators filed an emergency motion to stay the trial that was set to begin the following Monday. The Supreme Court ordered the state to respond to the motion for stay the very next day, on Saturday, May 6, so that a ruling could be made before the trial was set to commence.
In her complaint, among other things, Panzeca noted that she had received pregnancy-related continuances in three other criminal cases; that there would be no speedy-trial issue for her client with the requested 12-week delay; that Shepard wanted her to remain as his counsel; and that her male colleague at the law firm of Bleile & Dawson would not be able to represent Shepard in the same way that she could.
Before Panzeca filed the mandamus complaint, Judge Coss had previously denied Panzeca’s request for a continuance. And in his motion to dismiss the writ action, the judge made a number of arguments, including:
- the real object of the writ action was a prohibitory injunction, making mandamus inappropriate;
- Panzeca and her client had an adequate remedy at law via a pending appeal to the Fourth District;
- that “this is a ploy of trial strategy” and the “prudent and professionally responsible thing to do would be to seek one of the many female attorneys practicing law in Ohio to step in to litigate this manner;” and
- that Marsy’s Law guaranteed the victims the right to have Shepard’s trial conducted expeditiously.
Four days after the complaint was filed, on Sunday, May 6, the Ohio Supreme Court denied the emergency motion to stay the trial by a vote of 5-2. The five Justices in the majority did not issue an opinion, but Justice Brunner dissented with an opinion joined by Justice Donnelly. Justice Brunner opined that:
- the case presented significant Sixth Amendment issues regarding the right to counsel of one’s choice;
- Judge Coss had effectively removed Panzeca as Shepard’s counsel;
- the replacement counsel (Bleile) is apparently hard of hearing; and
- the requested continuance was reasonable and should have been granted in the interests of justice.
The Ohio Supreme Court’s decision denying the stay got some national attention, with Above the Law publishing an article on May 9 titled “Pregnant? Don’t Plan On Practicing Before Ohio’s Supreme Court Any Time Soon.”
The upshot? Ohio lawyers should not assume that doctor-recommended bed rest for a complicated pregnancy will necessarily result in a continuance of a previously scheduled trial, or that the Ohio Supreme Court will come to the rescue in a writ action. There’s also at least some concern that listing more than one counsel in the case results in the “next lawyer up” mentality when a judge is eager to bring a matter to trial. Practitioners may be interested in demonstrating bench strength with their notices of appearances including more than one lawyer, but they risk the court assuming one lawyer on the list is as good as the next one.
Part II: Ohio’s Second Appellate District affirms dismissal of employment case for failure to prosecute when trial counsel abruptly left trial to visit his sister in intensive care
Another recent decision from the Montgomery County Court of Appeals (Second District) also illustrates how courts will not always be sympathetic to emergent health concerns, unless counsel formally request continuances and provide sufficient information about the emergency. Saunders v. Greater Dayton Regional Transit Authority involved a terminated bus driver’s discrimination and retaliation lawsuit against the bus company. Although the trial court initially granted summary judgment in favor of the bus company, the court of appeals reversed that decision in part and remanded the sex discrimination claim for trial. A jury trial was set for Aug. 8, 2022, and the pretrial order noted that the plaintiff’s failure to appear at pretrial or trial would result in a Rule 41 dismissal, and potentially sanctions.
The week before the Aug. 8 trial, the sister of plaintiff’s counsel was admitted to the hospital, which required counsel to reschedule his meeting with the bailiff to test courtroom technology. At this time, no continuance was requested, and counsel assured the bailiff that his sister’s hospitalization would not impact the trial schedule. On the second day of trial, however, counsel sent an early morning email to the court and opposing counsel alerting them that his sister was being moved to the ICU, and that he was not likely to make it to the courtroom. That transfer to the ICU did not take place that morning, though, and counsel was able to attend the second day of trial. That afternoon, however, he received a text saying that his sister was being moved to the ICU. The court allowed him to play a video of witness testimony, but said that he would not stop the trial. Counsel left the courtroom, and the judge noted that he and the plaintiff “have chosen to leave the courtroom without the court’s permission.”
When the trial was set to resume after a scheduled day off, counsel emailed the bailiff and opposing counsel at midnight to alert them that he would not be returning to court that week due to his sister’s status at the hospital. At 8:30 that morning, the bailiff emailed counsel to alert him that everyone except him and his client were ready to proceed, and that if they did not come to the courtroom, the case would be dismissed with prejudice. At 9:12 a.m., the trial court dismissed the case with prejudice for failure to prosecute, noting that there had been no request for continuance nor sufficient information provided to the court to allow the court to determine if a continuance was appropriate, and that the plaintiff and her counsel appeared to have abandoned the proceedings.
On appeal, the Second District unanimously affirmed, noting that the standard of review was limited to an abuse of discretion. The court of appeals also noted that the plaintiff and her counsel had received multiple warnings that failure to appear could result in dismissal. The court explained:
There is no doubt that attorney Carter had real-life, important events going on outside the courthouse those two days. The impact of the loss of a sibling cannot be overestimated. But Carter and his client also had real-life, important events going on in the courthouse during those two days. Neither Saunders nor her counsel had the trial court’s permission to leave and abandon the trial. And neither Saunders nor her counsel requested a continuance of the trial, either orally or in writing. Further, there was little real-time information in the record as to what exactly was transpiring with Carter’s sister in the week before and the week of trial. While Carter provides additional information in the appellate briefs, this information does not appear to have been in the record for the trial court to consider when it was determining whether to dismiss Saunders’ action with prejudice.
The situation before us in this case is both tragic and unfortunate. If Saunders or her counsel had requested a continuance of the trial either before the trial began or before they left without permission on the second day of trial, and the trial court had overruled the request, then there would be a more difficult decision to make as to whether the trial court abused its discretion in dismissing the case. But that did not happen.
An important lesson from Saunders to Ohio attorneys is that if a health crisis (of your own, or of a close family member) impairs your ability to proceed with a scheduled trial, it is critical to formally request a continuance and to provide sufficient detail to the court for an informed ruling on the request. Doing so may not solve the problem at the trial court, but may give a sympathetic court of appeals the information in the record that it would need to reverse a dismissal for an abuse of discretion.