Outrage to the Outrage in Response to the Outrage Machine

You might have heard about the Florida lawyer who opposed a pregnant attorney’s request for a continuance. Here’s the story: A defense attorney, Christen Luikart, sought a trial continuance because (or at least in part because) she is pregnant, and her due date might conflict with the trial. The plaintiff’s attorney, Paul Reid, opposed the motion. The judge held a hearing on June 4; she granted the continuance. The end.

Well, of course, that’s not really the end. Last week–a month and a half after the hearing–The American Lawyer wrote a story about the request and opposition. Above the Law followed suit with a story headlined “Biglaw Partner Accuses Small-Firm Litigator Of Using Pregnancy To Delay Trial.” Similarly, the American Lawyer story claimed Mr. Reid “suggest[ed] [Ms. Luikart] became pregnant as a ploy to delay the litigation.” A day after the story broke, Mr. Reid had been suspended by his law firm.

But that wasn’t the end either. Then came the “backlash to the backlash.” Professor David Bernstein wrote a post over at the Volokh Conspiracy entitled “The Outrage Machine Claims a Victim: A Play in Seven Acts.” The implication of Prof. Bernstein’s post is clear: Mr. Reid didn’t really do anything to warrant a suspension. But a mob of SJWs overreacted to a mundane filing, Mr. Reid’s law firm caved to the hysteria, and now a man who really didn’t do anything wrong has become the victim of “a click-bait-driven outrage cycle.”

Maybe.

So here is my predictable backlash to the backlash to the backlash. Prof. Bernstein makes two points or assumptions that I don’t think stand up to scrutiny. To be clear, I didn’t watch the hearing. I don’t practice in Palm Beach County. I didn’t attend the law firm’s meeting in which they decided to suspend Mr. Reid. So I don’t know what “really” happened. But I’m skeptical that the events can so easily be shoehorned into the “SJWs gone too far!” narrative.

Here’s Prof. Bernstein’s first point: Despite the headlines, he “can’t find anything in the motion or [hearing] transcript in which Reid suggested or implied that” Ms. Luikart got pregnant as a ploy to delay the trial. Sure, the press accounts include that accusation because the judge said, as she was delivering her decision at the end of the hearing: “I don’t believe Ms. Luikart got pregnant in response to this case.” But Prof. Bernstein claims the judge’s statement was “[a]propos of nothing in particular.” In an update to his post, Prof. Bernstein asserts that it was not Mr. Reid, but Ms. Luikart, “speaking sarcastically, who first brought up the issue of whether she got pregnant to delay the trial.”

So there you have it. Ms. Luikart herself sarcastically made the claim that she got pregnant to delay the trial. The judge echoed her claim when ruling on the continuance. But Mr. Reid got blamed for it in the press!

Except I don’t think that’s what happened at all. Prof. Bernstein helpfully included a link to the hearing transcript in his post. So I read the transcript. Here it is. Anyway, this exchange comes at the very beginning of Mr. Reid’s objection to Ms. Luikart’s continuance request:

THE COURT: Any objection?

REID: Yes, Your Honor, and I do not want to look insensitive on that. In fact, my firm and I have always been rated in the top 10 of best places for women lawyers to work at and I respect all that. But what I — my opposition to this is pretty simple. What prompted this was when I filed a motion based on them not produce [sic] the information on her experts and so then we got a continuance.

THE COURT: She was pregnant then, wasn’t she?

REID: I understand, Your Honor. . . .

Now, I can see how a neutral reader might not think Mr. Reid was actually claiming that Ms. Luikart got pregnant to delay the trial. But it doesn’t look great for Mr. Reid here. The very first argument he makes in opposition to the continuance is to say that Ms. Luikart’s pregnancy-based continuance request was “prompted” by his claim that the defendants had not timely produced expert-related material. Yikes.

I wasn’t in the room, so I can’t evaluate the tone or context of Mr. Reid’s remark. But you know who was in the room? The judge. And it’s clear how she interpreted Mr. Reid’s remark at the time. As soon as Mr. Reid says the pregnancy-based continuance was prompted by a discovery dispute, the judge asks, rhetorically: “She was pregnant then, wasn’t she?” So clearly the judge interpreted Mr. Reid’s argument as at least implying Ms. Luikart was using the pregnancy as a delay tactic.

Prof. Bernstein does not discuss this exchange. But take a look at the transcript I was able to download from his post:

The exchange is highlighted. And see that little text bubble? On my computer, when I click on the bubble in my browser window, nothing happens. If, however, I download the PDF and use Adobe, check it out:

Wow! The online transcript seems to be annotated by Ms. Luikart herself. She makes clear that this exchange is the place where Mr. Reid implies she got pregnant in response to the motion to strike.

Now, is that excerpt slam-dunk evidence that Mr. Reid is a monster who should be cast out from polite society? No. But on my read, that’s the part of the transcript where the judge and Ms. Luikart both interpreted his argument–his very first argument–to be that her pregnancy-related continuance request was prompted by his motions for expert discovery. I don’t think the judge’s remark was apropos of nothing, nor do I think Ms. Luikart planted the idea in the judge’s head. Mr. Reid did that all on his own.

Now, Prof. Bernstein’s second point: This is a “click-bait-driven outrage cycle” in which Mr. Reid’s law firm threw him under the bus in response to false or misleading press coverage. Though he never states it directly, Prof. Bernstein’s assumption seems to be that the law firm’s actions could not have been a response to Mr. Reid’s conduct; rather, the law firm must have been responding to the press coverage and subsequent outrage. Part of that assumption might be based on the fact that Prof. Bernstein doesn’t see any problem with the hearing transcript. If you eliminate the transcript as a cause, then what else is there?

But part of it might be the timing. The hearing occurred back on June 5. Nothing happened to Mr. Reid until July 25, after the Above the Law and American Lawyer stories. That timing certainly seems to support the inference that the press coverage, as opposed to the conduct itself, caused Mr. Reid’s suspension. If Mr. Reid’s conduct itself was the problem, then what took them so long? It must have been the social-media-fueled outrage!

Again, I’m not so sure. Based on the transcript, it seems Mr. Reid was the only attorney from his firm at the hearing. I have no idea how things work at Mr. Reid’s firm, but back when I used to practice, the partners at my firm wouldn’t read over the transcript after a hearing. I’d tell them how it went, send an email to the client, and that was basically the end of it. In other words, if I’d made an argument that offended the judge and caused her to chastise me in open court, I might not include that little detail in my report back to the partners! They’d therefore have no way of knowing about it unless and until someone else told them.

It’s completely possible that the law firm’s punishment followed the much-delayed press accounts because the law firm had no idea what happened until reading those press accounts. Of course, I have no idea. But that seems like a reasonable sequence of events. I also have no idea what sorts of conversations the law firm partners had with Mr. Reid before this incident, how he responded to their questioning, or anything else about the internal workings of the firm. They may well have responded to the coverage instead of the substance. But I just don’t think we know enough to make that assumption.

So there you have it. To be clear, I have no insight into the decisionmaking process at Mr. Reid’s law firm. But if folks are going to criticize the firm’s response and defend Mr. Reid’s actions, I think it’s at least worth looking at the record as a whole, considering the facts as the law firm might have considered them before making their decision.

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