The Notice of Availability


This probably comes up more often when dealing with small firm or solo lawyers but in both California and Washington I've seen filed and filed so-called "Notices of Unavailability."  This document lets opposing counsel know that you will be out of town (or otherwise unavailable) and requests opposing counsel to not schedule anything requiring a response for one week after you return or become available. 

No one's ever referenced any rule when doing this, and I've tried in vain several times to locate an applicable rule.

Well it turns out, there isn't one.  Courts have tolerated the practice by enforcing some limits on opposing counsel's ability to schedule events solely in order to cause trouble for the other side.  However, a California state appellate decision from late November makes clear that a lawyer cannot use such a notice to exert influence over the court's docket (access a copy of the decision here):

We explain our reasons for summarily denying the petition in part because the common practice of filing a “notice of unavailability” in the superior court now permeates the appellate court system. We receive them on a regular basis and at all times during the appeal process: they come before the record is filed, they come while the matter is being briefed, and they have even come after a matter has been submitted for decision.

Yikes.  The court goes further, noting that the entire "Notice of Unavailability" procedure is improper, implying that if you want to be formally unavailable, you should seek the "appropriate relief" in court (a vacation stay?). 
 

 
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