Court Refuses to Suspend Trial for Litigant’s Religious ObservanceBy Brian A. Zemil, Litigation News Associate Editor – April 27, 2011
Maryland’s highest court has held that a trial court abused its discretion by refusing to suspend or postpone a civil trial despite a litigant’s planned absence during two days of the trial for religious reasons. Neustadter v. Holy Cross Hospital of Silver Spring, Inc. [PDF]. By focusing on the trial court’s abuse of discretion, the court sidestepped the primary issue on appeal—whether a lower court’s refusal to reschedule the trial infringed the litigant’s constitutional right to free exercise of his religion.
A Timely Request for Continuance?
The underlying case involved a medical negligence action against a hospital and certain other defendants. As trial approached, the plaintiff asserted that the scheduled 10-day trial partially conflicted with an Orthodox Jewish holiday that would occur during two days in the middle of the trial. The plaintiff argued that, when he was observing the holiday, he was prohibited from working or relying on agents to do work on his behalf.
After the parties failed to resolve the issue themselves, the plaintiff filed a motion to suspend the trial for the two-day holiday. The motion was filed approximately one month before the trial. The motion specifically asked for both the plaintiff and his attorney to be excused from trial during the two days of the holiday. When that motion was denied, the plaintiff filed additional motions seeking relief and provided the trial court with an affidavit from his rabbi. The rabbi’s affidavit cited specific religious prohibitions and concluded that it would be impossible for the plaintiff or the plaintiff’s attorney to participate in any way with a legal proceeding during the two days.
The trial court denied the motions to suspend or postpone the trial, ruling that they were untimely and would cause inconvenience to jurors and witnesses and double-book the judge and defense counsel. The trial court also noted that the court was “down two judges” and had an already crowded trial docket.
As expected, due to the interceding holiday, the plaintiff and his attorney missed two days of the defense’s case. During those two key days, the hospital defendant “put on its entire case-in-chief.” Four defense experts testified, without cross-examination, to refute the hospital’s liability for damages. Although the trial court and the plaintiff’s counsel had requested that the hospital reschedule its experts to accommodate the plaintiff’s absence, the hospital did not move the testimony of any of its experts. Instead, one defense expert, who had previously agreed to testify after the plaintiff returned, actually testified during the plaintiff’s absence.
After the jury returned a defense verdict, which an intermediate appellate court upheld, the plaintiff appealed to Maryland’s Court of Appeals. Without reaching the constitutional free exercise claim, that court held that the trial court abused its discretion by failing to make a reasonable accommodation for the plaintiff. The court of appeals held that the trial court’s concerns about a negative impact on jurors, judicial resources, and the trial court’s docket should not be “unreasonably juxtaposed” against the plaintiff’s request for a religious accommodation. The court noted, “[t]here is no evidence on the record . . . that suspending court proceedings for two days of a nine day trial would unreasonably or substantially burden the docket or squander resources.”
“The court neatly avoided the First Amendment issue and reversed on abuse of discretion grounds, which typically has very little success on appeal,” notes Thomas J. Macke, Washington, DC, plaintiff’s counsel on appeal. “Ironically, the court took into account the plaintiff’s religious belief as a partial reason to find an abuse of discretion,” he says.
Although the court of appeals officially declined to rule on the plaintiff’s constitutional challenge—whether his right to freely exercise his religious beliefs had been infringed—its decision “requires that trial courts give substantial deference to sincerely held religious beliefs in granting scheduling accommodations, unless doing so would be unduly disruptive,” says Thomas G. Wilkinson Jr., Philadelphia, cochair of the Conflicts of Interest Subcommittee of the ABA Section of Litigation’s Ethics and Professionalism Committee.
Decisions in Other Jurisdictions
Other jurisdictions have found no abuse of discretion for refusing a request for continuance to allow participation in a religious holiday, while also avoiding a constitutional analysis. For example, the U.S. Court of Appeals for the Eleventh Circuit declined to perform a First Amendment analysis in a case where a trial court refused to stay proceedings during Passover, but affirmed the decision due, in part, to the inadequate notice provided by the movant. The Missouri Court of Appeals similarly held that the trial court did not abuse its discretion when it denied a request for a continuance so that a defendant could honor the Feast of Tabernacles. The Supreme Court of Washington also held that a trial courtdid not abuse its discretion by denying a defendant’s motion for continuance so that he could observe Yom Kippur. The U.S. Court of Appeals for the Fourth Circuit similarly declined to conduct a constitutional analysis when a defendant claimed that he was forced to enter a guilty plea on Rosh Hashanah against his religious convictions.
What Is a Lawyer to Do?
“As a professional responsibility matter, it would be unwise to read the Maryland decision as endorsing a lawyer’s absence from the courtroom due to a client’s religious beliefs, unless those beliefs also mandated that the client’s agent not participate,” says Wilkinson. “Nor should it be read to sanction disobeyance of a court order requiring an attorney to appear for a hearing or trial,” he says.
“One clear lesson for practitioners is that to minimize the risk of a trial proceeding on a client’s religious holiday, an attorney should avoid a delay and immediately request a continuance if opposing counsel has failed to respond to informal attempts to consent,” Macke says. “Cases like this remind us that even in mundane matters like scheduling, an attorney must recognize and balance the delicate interests between zealous representation, professionalism, and personal malpractice liability,” says Joshua H. Camson, Pittsburgh, cochair of the Website Subcommittee of the Section of Litigation’s Ethics and Professionalism Committee.
Keywords: litigation, ethics, abuse of discretion, constitutional religious rights, Neustadter v. Holy Cross
- » Neustadter v. Holy Cross Hosp. of Silver Spring, Inc., 13 A.3d 1227, 2011 Md. LEXIS 79 (Md. Feb. 24, 2011).
- » United States v. Baldwin, (In re Steven Jackson), 770 F.2d 1550 (11th Cir. 1985).
- » Gordon v. Gordon, 739 S.W.2d 728, 731 (1987).
- » State v. Rosencrans, 167 P.2d 170 (Wa. 1964).
- » United States v. Barnett, 861 F.2d 266, 1988 (C.A.4 (Md.)).
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