Thursday, July 29, 2021

You Can Call me Dave

A different perspective was recently suggested on the "tipsy coachman." The subject has been in this blog before. See The Role of the Tipsy Coachman (October 2017), Medical Pot Evaluation in Florida (July 2021), and Preservation and Interpretation (July 2021). In a nutshell, the Tipsy Coachman is a literary reference that has evolved by judicial adoption into an allegory explaining appellate review. 

The reference has roots in the eighteenth century poem Retaliation. In rendering its decision, the Georgia Supreme Court used the poem to explain its analysis in Lee v. Porter, 63 Ga. 345 (Ga. 1879); that court noted, in a very brief opinion, that "the human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it." Suggesting, that is, that we have some innate sense even when we lack acuity? A century later, The Florida Supreme Court adopted the analysis in Carraway v. Armour & Co. 156 So. 2d 494 (Fla. 1963). The pertinent stanza of Retaliation is:
Here lies honest William, whose heart was a mint,
While the owner ne'er knew half the good that was in't;
The pupil of impulse, it forced him along,
His conduct still right, with his argument wrong;
Still aiming at honour, yet fearing to roam,
The coachman was tipsy, the chariot drove home;
Would you ask for his merits, alas! he had none,
The concept, as a legal maxim, is even popular enough to warrant a Wikipedia entry, which is less than extensive. The academic would never cite Wikipedia, but it has found a home with various court opinions. In a nutshell, the Tipsy Coachman describes a trial judge reaching the destination, though not by a path the appellate court can abide. In affirming the conclusion, arrival, or destination, the court explains the fallacy or error of the trial judge's route. 

It is important to remember that in many contexts, the trial judges' favorite word may perennially remain "affirmed." That is, there are perhaps some who are content with affirmation, regardless of reasoning or rational. To be right for the wrong reason, is after all, still being right. Right by accident, but none the less right. There is an old idiom that "even a blind pig can find an acorn once in a while," might that be arguably similar?

However, I recently heard from a critic of Judge Collins, the Circuit Judge who wrote the Court's opinion in Carraway v. Armour so many years ago (58). The critic suggests that the court's use of of this allegory "compares the trial judge to a drunk driver." This, it was suggested to me, is "disrespectful and unnecessary." From the perspective of a practitioner it might be seen as insulting to the trial tribunal or judge, but perhaps more so to the jurist at whom it is directed? Might some find it deeply offensive to be compared to a drunken driver mistakenly finding home? Is it better to be compared to a lucky swine?

There are several (18) references in American jurisprudence that quote "the coachman was tipsy" directly from the poem. These include the Florida Supreme Court (x3), the Florida Third District Court (x1), The Florida Fifth District Court (x2), The U.S. District Court, Middle District of Florida, the Georgia Supreme Court (Lee v. Porter, supra), the Alabama Supreme Court (x1), the Georgia Court of Appeals (x3), the Tennessee Court of Appeals, the Virginia Court of Appeals (x2), The U.S. Army Court of Criminal Appeals (x1), The Court of Appeals of Oregon (x1), and The United States Eleventh Circuit Court of Appeals(x1). The concept is not isolated to Florida, and certainly not to the workers' compensation system or Judges of Compensation Claims.

However, the more short-handed term "tipsy coachman" appears in reported cases 446 times. The vast majority of these is in Florida (423 in state courts [95%], 5 in federal courts): Florida Supreme Court (x17); First District Court (x107), Second District Court (x81), Third District Court (x48), Fourth District Court (x70), Fifth District Court (x100); U.S. District Court (Florida) - Middle District (x2), Northern District (x1), Southern District (x2). It is also referenced by the U.S. Eleventh Circuit Court of Appeals (x2), the Alabama Supreme Court (x1), the U.S. Army Court of Criminal Appeals (x9), The Oregon Court of Appeals (x2); Supreme Court of the Commonwealth of the Northern Mariana Islands (x1); Court of Appeals of Tennessee (x1); and Court of Appeals of Virginia (x2). 

A great many trial judges have thus been compared to a drunken driver led safely home by the sober horses.  The concept is applied in a significant volume of jurisdictions, but it has found a home in Florida [95% of "tipsy coachman" references]. Curiously, the reference began in Georgia in 1879, Lee v. Porter, supra. Yet, we notice Georgia otherwise unrepresented in the list above. There are five instances in which Georgia courts quote Lee: "it finds the truth when wholly unable to find the way that leads to it." Its appellate courts have also rendered similar results without reference to either the quote or Lee, see e.g. White Repair & Contracting Co. v. Georgia Roofing & Metal Co., 262 S.E.2d 164, 165 (1979).

A coterie of courts have similarly quoted the "wholly unable" language. But, they are a subset of the "tipsy coachman" jurisdictions above. Seemingly, appellate courts would reach the logical conclusion of essentially "harmless error" similarly, but it appears that most do so without reference to "Retaliation," the "Tipsy Coachman," or the "wholly unable." 

Is it offensive to refer to the trial judge as a drunken driver who arrives safely home despite being addled, dazed, or woozy? Is it more or less so to consider other "tipsy" synonyms such as "loaded," "stewed," or "drunken?" An interesting inquiry. Perhaps it is the poetic license of Retaliation, or the seemingly innocuous "tipsy" that encourages the citation of the "doctrine?" It is referred to as the "tipsy coachman doctrine" at least 251 times out of that 446 noted above; "doctrine" being perhaps an added weight of formality or imprimatur? Candidly, I have studied the reference more than many, and over decades have yet to be offended. That said, I found the recent inquiry intriguing as a new perspective. 

Paul Simon said "when you call me, you can call me Al" (You Can Call Me Al, 1986). From a very old short story Mercantile Drumming (1833), we get "call me anything, so long as you don’t call me late to dinner," which has become cliché. Of course, Blondie didn't specify, she just said "call me" (1980). Carlie Rae Jepsen was a bit more tentative in 2012, instead with "call me, maybe." And, who can forget Raymond J. Johnson, Jr. with his "you can call me Ray or you can call me Jay . . . but you doesn't have to call me Johnson." Culture is replete with "call me." We have even evolved into an age in which people list their "preferred pronouns" so as to forewarn the world as to what will least offend them individually (You can call me "wholly unable," or "tipsy," but not "stewed?)

Need judges express a preference ("please don't refer to me as a tipsy")? Or, do judges need to accept the phrase in its literary sense and accept the 140+ year history of the Tipsy Coachman? I can readily accept three premises: (1) it is practical and possible to express such an affirmance without this literary reference; (2) the literary reference is a handy short-reference that can aid both recognition and comprehension; and (3) it is possible for someone to be offended or hurt by this, or perhaps any practically any reference these days. 

I have been reversed on appeal various times, yet cannot find an instance in which the "tipsy coachman" was mentioned. But, I don't find the reference personally objectionable. In reflecting, the truth is I have been called worse than "tipsy." It is unfortunate, perhaps, in some contexts and perspectives. However, its intent is fair, its reference handy, and any offense minimal. For me, you can call me what you like. If you make me pick, you can call me Dave. 



Tuesday, July 27, 2021

How Does the Story End?

How will the pandemic of 2020 end? Well, it won't end in 2020, that much we know for certain. Beyond that, there is a lot of discussion. From the standpoint of the Florida OJCC, we remain open and operational as we have throughout. We are welcoming folks for live proceedings. And, there is travel going on. Recently an Orlando attorney walked into the Pensacola office for a mediation. Yes, things are getting back to normal.

I was recently sent a copy of a Statnews article: "How the Covid pandemic ends: Scientists look to the past to see the future." My first thought was this whole endeavor would have perhaps been a lot easier on us all if we had historical perspective. I know some pointed at prior influenza events, and some discussed Ebola. But, for the most part, there was fair bit of "novel" being presented and a sentiment seeming to suggest that that meant unprecedented and thus of little help.

This May 2021 article said we are about 1.5 years into this thing. But, as I remember it, the virus was discussed in January 2020, but no real reactions until a bit later. Of course, earlier in China. For an exceptional recounting of the day-to-day of SARS-CoV-2, check out Channel 6 in Orlando. Some key dates are:
"March 1, 2020 - first Infected Floridians reported."

"April 1, 2020 - Governor DeSantis issues statewide stay-at-home order."

"May 4, 2020 - much of Florida begins a reopening."

"July 6, 2020 - schools ordered to open in-person for fall 2020."

"September 25, 2020 - Florida moves to stage 3 reopening."
According to the Associated Press, our first "jabs" in Florida were December 14. I still struggle with the effort and focus that brought those vaccines so rapidly. I admire the initiative, intelligence, and enterprise that drove that effort. And, since then, a fair few Floridians have been injected. We are now about 48% vaccinated, just over 10 million people fully. That does not mean we are safe, just safer than we were.

For those of you that have been waiting, the time is here. A USA Today article laments that many "young, otherwise healthy people" are being infected and seeking care. A doctor is quoted saying "One of the last things they do before they're (patients) intubated is beg me for the vaccine . . . , I hold their hand and tell them that I'm sorry, but it's too late." Now Pat Benetar 1982 is stuck in my head: "it's a little too little, it's a little to late." What you don't want to hear in the hospital, ever, is "its too late." And, anyone that ever watched a medical show knows they want to avoid intubation if possible.

So, how will it end? For some it has already ended. They are reporting over 4 million deaths from COVID worldwide. But also 175 million recoveries. I lament the dead, and those with long-term complications, but a 2.3% death rate is a tribute to the medical professionals, their derive, nerve, and fortitude. The 1918 flu pandemic killed 3% of the planet's population, between 50 and 100 million people. More than died then than in the first World War.

The Statnews suggests that there was some chance of actually beating SARS-CoV-2, but the chance for that is over. It is also dismissive of the chances of "vaccinating our way out." Not that the vaccine will not help many, but contending that the whole world will not be able to access it. The article stresses that "the truth of the matter is that pandemics always end. And to date vaccines have never played a significant role in ending them." It provides the anecdote to support this from 1918, 1957, and 1968 (I recall none of these ever being mentioned to me before COVID. Perhaps my grandparents waxed eloquent about the pandemic and it never registered. But, I vividly remember tales of the great depression, crop failures, ration books, and more.

The article describes how each of these prior viruses "underwent a transition," and then explains that the transition was essentially a learning curve of our own immune response. Our bodies "learned enough about them to fend off the deadliest manifestations." Pandemics of the past did not end suddenly (as the siege does in War of the Worlds, Paramount 2005). No, it says that "instead of causing tsunamis of devastating illness, over time the viruses came to trigger small surges of milder illness." Those diseases were eventually painted into their corner.

This author contends that this pattern will be repeated with SARS-CoV-2 and it "will at some point join a handful of human coronaviruses that cause colds." A quoted World Health Organization scientist says that some believed "we’d be out of this acute phase already.” She insists that the virus and its variants "is controllable,” and she cites in support various countries with proven success in shutting down the transmission.

The science from past pandemics suggests to the Statnews writer that "viruses morph from pandemic pathogens to endemic sources of disease within a year and a half or two of emerging." That is not to say this must be the same, because this is not an influenza we are dealing with, and its pattern and timing could be different. This is, after all, a "novel" coronavirus. There is some value to prior experiences, but not a true roadmap.

That does not mean we are without any historical reference. the author says there have been four human coronaviruses. Since they were not in the modern age, there is less known about who they are and how they do what they do. There was less to research, less science available to apply to the issues. And so, we remain doubtful of prognostications about the future based upon studying what is known about those four.

The article dumps water on the hoped-for herd immunity we have all mentioned at least a time or two. The sources cited in this article doubt we will reach the "herd" status, and claim that we will each nonetheless develop a level of immunity or resistance. We will be periodically ill on an ongoing basis, but not as seriously. They relate to the cold, and remind that we may resist the cold, but there is no cure. The sentiment is that the endemic result will soon occur and the real mystery is about how how serious or perhaps deadly will it remain in the early stages of that endemic state. There is hope, however, that a vaccinated populous may inhibit both the transfer and severity of the viral infections even in the endemic time.

There is belief that the endemic period is approaching, but there is not unanimity. Those that belief the period is close also seem convinced that countries that have both high infection rates and significant inoculation will fare well when that occurs. The U.S. is in this group. However, other groups point to India and Brazil as examples indicating that this virus is slower to incubate, to afford recovery, and therefore to end its non-endemic, or pandemic, stage.

So some think the end is near, and others warn that this is our first modern coronavirus pandemic, and the real data on it entering an endemic state is too thin at this time to make real predictions. They seem to caution that this pandemic era may last for a significant time. In the end, the article brings multiple perspectives and thoughts and is a worthy and interesting read.



Sunday, July 25, 2021

Antipodal or Antithetical?

Dichotomy, Antipodes, Antithesis, Oxymoron? I struggle for words sometimes. You young folks get ready for it, it happens to us all. What is a good word to describe two ideas that are opposites.

Imagine lawyers espousing professionalism. Lawyers expressing pride in the level of professionalism in their practice. Picture a flowing discussion regarding communication among litigants and lawyers, good faith, and how that system is better than what those lawyers perceive in practice areas other than workers' compensation. The topic of this conversation was Rule 60Q6.115, and the good faith communication requirement. For the most part, there is a pride in the professionalism of this practice, and in the pre-motion engagement of "good faith" conversation in pursuit of resolution of differences. The discussion was not unanimous. 

One voice noted that if you are doing something (anything) merely because a rule requires it, that is not professionalism. That is a fair point; if you are driving 25 in the school zone only because of the ticket threat, you likely cannot proclaim yourself "safety conscious." Is really polite or professional if someone is making you be that way? That is a criticism, and a constructive one at that (in my humble opinion). While it perhaps argues against a rule requiring professionalism, it is not an opposite.

Later in the same conversation, the provision of section 440.192(4) came up. This says:
"The petition must include a certification by the claimant or, if the claimant is represented by counsel, the claimant’s attorney, stating that the claimant, or attorney if the claimant is represented by counsel, has made a good faith effort to resolve the dispute and that the claimant or attorney was unable to resolve the dispute with the carrier."
The spirit of this discussion was less focused on professionalism. But one voice commented that there is no statutory requirement that parties in workers' compensation disputes "act in good faith." The only requirement, the voice noted, is that a person says they have "made a good faith effort." This came up on a discussion regarding ideas regarding a requirement for proof of good faith. The statement may have been a suggestion that proof is irrelevant (good faith not required), but the phraseology was curious.

They are all valid thoughts (1) professionalism is good, and rules that promote (require) professionalism are good; (2) professionalism should be "above and beyond" what rules require; (3) the statute should be given a strict reading. 

What does "good faith" mean anyway? It is used throughout the law, common, statutory, and regulatory. It is a favorite phrase.  The Wex, maintained by the Cornell University Law School, defines it:
"A term that generally describes honest dealing. Depending on the exact setting, good faith may require an honest belief or purpose, faithful performance of duties, observance of fair dealing standards, or an absence of fraudulent intent"
The spirit of (1) and (3), supra, are seemingly not consistent with each other. In (1), there is celebration of professionalism, by rule or spirit. In (3), there is "we don't have to have honest dealing or an absence of fraudulent intent, we just have to say we do." Those two starkly contrast and paint a troubled and unfortunate picture. My pondering of them started me ruminating on potential descriptions of the seeming conflict (definitions from online dictionary):
Oxymoron - "a figure of speech in which apparently contradictory terms appear in conjunction."

Dichotomy - "a division or contrast between two things that are or are represented as being opposed or entirely different."

Antipodes - "the direct opposite of something else."

Antithesis - "a person or thing that is the direct opposite of someone or something else."
We first release oxymoron as the thoughts are too conjoined, and there is no conjunction of ideas within a phrase. This is not a combination of two opposite words within a phrase. Not an oxymoron. Certainly, there is dichotomy in the two expressions: (1) professionalism is good, (3) we don't have to act in good faith, merely say that we do. Dichotomy a contrast. It is not a bad descriptor, but not specific or descriptive enough. I thus hesitate between antipode and antithesis. Each aptly fits this dichotomy.

If a statute requires a certification of "a good faith effort to resolve," "honest dealing or an absence of fraudulent intent," then assuming the posture that there is no requirement to actually make such "a good faith effort" is antipodal and antithetical to professionalism. Perhaps, there is even a requirement of good faith despite the lack of specific, verbatim, statutory statement? Notably, there is likewise no requirement in the statute that even vaguely resembles "thou shalt not lie." However, there are some pertinent requirements in The Florida Bar Rules of Professional Conduct:
Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice.

Rule 4-8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Rule 4-8.4(a) prohibits the lawyer from violating the Rules of Professional Conduct or knowingly assisting another to do so.
I would suggest that there is in fact a requirement that one engage in a good faith effort under section 440.192. Admittedly, the statute does not say "thou shalt make a good faith effort." However, it does say the lawyer will certify that s/he "has made a good faith effort." Thus, there must be a good faith effort or the lawyer is forced in the absence of one to violate the standards by which she or he is allowed to practice law.

The only way this would not be implied sufficiently is if one discounted or discarded the "thou shalt not lie" that governs all Florida lawyers, Rule 4-8.4(c). And, that is without the whole "prejudicial to the administration of justice" concept expressed later in Rule 4-8.4(d). One might argue I am splitting hairs, but it really seems to me that lawyers are obligated to tell the truth. The statute says they will represent that they are acting with "honest dealing or an absence of fraudulent intent," and it seems we can expect that representation to be true?

It is interesting that people view the world through different prisms and lenses. We all have various perceptions. But, perhaps we could all do with a little more reflection on professionalism, what it means, and what we might each consider to be its antipode or antithesis. Is it "above and beyond the rules?" Is it compliance with rules? Or, is it merely saying we obey the rules? I find myself confident in my definition of professionalism. What is yours?


Thursday, July 22, 2021

Uncle Buck to Ray Kinsela

In a single post, from Uncle Buck (1989) through Black Widow (2021), with a glance to Goundhog Day (1993), ending with Field of Dreams (1989). A meandering logic path perhaps, but read on. 

There are a great many literary classics out there. Today, I am drawn to Uncle Buck (1989). Sure, not the pinnacle of John Hughes' catalog, but a phenomenal work nonetheless. The writing deserves significant credit. Today I am drawn close to the closing scene. Just as the parents return to a home remade in their absence and the angst-filled teenager tentatively awaits her mother. Their relationship in the beginning of the plot was perhaps detached, the teen perhaps standoffish.

As mom enters the house alone, the teen awaits. There is a symbolic distance between them, which closes only when mom makes a tentative approach, a few steps then a pause. A cutaway closeup for emotion, and then a return to them merely two feet apart. There is a pause, some music, and the teen falls into mom's arms without inhibition. Sensing the moment, mom delivers a prescient line "its going to be a little bit different, I promise."

The drama, the hesitancy, the reservation. We see the underlying emotion, the drive for reunion, the ponderous approach. In it, we are perhaps reminded of our own returns in recent months. Following the cold, dark, winter of SARS-CoV-2, people isolated, distanced, and hunkered. I fear that was far worse for many of you than I am capable of comprehending first hand. Until some people did something and I lost a bridge, I was in the office throughout the pandemic. We did not close, we did not falter, and we did not fail. You've heard that before, forgive me the outrageous pride I hold for Florida OJCC team that functioned day in and day out for you. They were, to a person, exceptional and outstanding. 

Despite one's degree of isolation, everyone is experiencing some return home recently. We are stepping through that door uncertain of our expectations. I was thrilled to return to in-person educational opportunities, see We're Really Back (April 2021), which followed on the heels of A Great Hamburger with a Smile (April 2021). I have celebrated our return to full normal and striven to recognize that many of us were blessed with a far more acceptable pandemic than many of you (my greatest respect goes to those who were caregivers through that time, teach-at-home parents, folks with live-in relatives, etc.).

The Black Widow (2021) got me thinking about all this. Imagine the strange neural pathways that lead from John Candy, John Hughes, and pandemic to Scarlett Johansson and Florence Pugh. This movie came to mind because I was in the vanguard that flocked to the theater to view Black Widow on the opening night last week. It was somewhat cathartic, like my recent returns to conferences, wait staff sans masks, and the bridge that is a bridge again. It was a step forward on a path that frankly feels pretty good. There was familiarity and some nostalgia mixed in the crowd.

Crowd is a fair noun and adjective in this sense. I was not alone. According to Yahoo Finance, I was far from isolated or alone. The movie "secured the highest pandemic-era opening to date, raking in $80 million at the domestic box office." And, according to analysts, the movie "spells 'big trouble' for theater chains." Eighty million may not sound like "trouble," but the article proceeds to note that despite being a great opening weekend, the movie simultaneously opened on a streaming service and generated $60 million in rental fees (at $30 each). The "box office" was about 57% of the total. 

This is not a pandemic alone. This is not about Black Widow alone. One analyst was quoted that "This is a watershed moment for the (film) industry." The perception or conclusion is that those who produce entertainment (studios) are gaining leverage from the streaming paradigm. It is a distribution that builds direct customer relation and "cuts out the middleman." That the stream opening nearly equals the theater is seen as important. In the post-COVID world. it is possible that health concerns continue to drive the streaming alternative. But, it is also possible that we are witnessing a continuation of a marked and permanent change in the appetite for expensive tickets, big crowds, and $15.00 popcorn.

There is reticence expressed. The cineplex is not dead, but it is threatened. "Directly to consumer" is gaining ground. That is bad news for a cinema business that was said to be struggling for profitability before the pandemic. We have seemingly never had so many entertainment alternatives, and the decreasing allure for theaters is as likely due to the bigger and better technology that cohabitates with us. In my day, having your own personal TV was rare. Most families owned one; it was a 19 inch screen, and there were 3-5 channels if you counted PBS. It was not the experience you get on a relatively "cheap" ($350) fifty-inch flat screen today.

This is not new. Country clubs struggle for members, as do a plethora of other social organizations. Part of this is on the doorstep of social media. Our virtual friendships are replacing the real thing. In 2000, Robert Putnam published Bowling Alone. He pointed out how we, societally, were becoming increasingly isolated, introverted, and disengaged. The Silent Generation and even Boomers were much more likely to be in a bowling league, service club, or similar than young adults are today. In a general sense, we are in the midst of a great detachment from real world society. The transition to streaming may be a combination of technology, proclivity, convenience, and modernity. But, regardless of cause, it appears for now to be real.

Is this important? What does this have to do with workers' compensation? (I hear Staler and Waldorf from the balcony as I write sometimes). I suggest that the transition you are witnessing in the movies is metaphorical for a much larger concern or at least curiosity. With Zoom and similar, it is now possible for us to recline in our Lazyboy and engage the world digitally. We need never be in the same room with our client, our opponent, our "friends," or even family. It is entirely possible that you can convince yourself that this is apropos and acceptable. You are wrong.

The workplace will change. There will be more remote work in 2025 than there was in 2015. And, that trend is likely to progress. But, there is value in human interaction. Stopping at a coworker's desk unannounced to question her/his weekend plans has value. Complimenting a new tie has value. Bringing in some cookies, doughnuts, or similar to share has value. But in a grander sense, there is benefit to our collective presence in pursuit of mutual purpose. In short, we are different when together in an office, mediation, or hearing and there is value there. The greatest thing we can foster is community, and you just don't get that streaming a movie in your dark and distant living room.

As the title promised, we now evolve to the metaphorical Field of Dreams (1989). Explaining why the corn was plowed under and a ball field built in the great nothingness that is Iowa, this speech is delivered:
“People will come, Ray. They’ll come to Iowa for reasons they can’t even fathom…They’ll arrive at your door as innocent as children, longing for the past . . .. The memories will be so thick they’ll have to brush them away from their faces… This field, this game: it’s a part of our past, Ray. It reminds of us of all that once was good and it could be again.”
The same can be said of that restaurant, cinema, service club, or your local, friendly Florida OJCC office. Those paradigms, that human interaction, that nostalgia is right here and awaiting you. "It'll be as if (you were) dipped . . . in magic waters." Come back to the interpersonal, the live hearings, the in-person mediations, and more. "its going to be a little bit different, I promise." But it will be good. As Phil Conner reminded us in Groundhog Day (1989), "anything different is good." Getting back to the in-person will be good. Good for you, your clients, your customers, and the community.  

Even if you insist on experiencing Scarlett Johansson and Florence Pugh (Black Widow) from your own television, find ways to re-engage life in-person. We need you to be more than a text message, email, or even voice on the line, and you need us more than you perhaps know. Come on back, the "memories will be so thick." We may not "return" to where we were, but there will be a return to offices, conferences, classrooms, and proceedings. People need community and personal interaction. The workers' compensation process will thrive on you being here in person and we are ready to have you back. 

And, if you do decide to eat out, "don't forget to tip your servers." I have waited tables and trust me it is a tough way to make a living. A smile and "thank you" wouldn't hurt for that matter, and that's true with any business you visit. "I'll be here all week. Try the veal." 

Tuesday, July 20, 2021

The Concept of Safety

A long time ago, I was peripherally involved in a workers' compensation case that was in turn part of a civil case involving product liability and negligence. I was a very young lawyer and found myself in a room full of people whose names were on doors around town. Everyone at the mediation in that case was a named partner in some firm, except me. I was reminded of the case recently as I followed a trailer in traffic and noted the state of its rear bumper. 


The case was disturbing for various reasons. First, the worker had passed away; death cases are more difficult than you might think. Second, this particular worker was an attorney. Empathy is driven by identification, but it was more than that. Third, the accident was likely avoidable but at least the injury could have been lessened. In addition to those realizations, I learned that mediation was a  powerful tool, largely because there were no rules. And, the whole "stream of commerce" from law school started to make sense. 

The roads are full of trucks, we often negotiate our travel around vehicles that are much larger, heavier, ponderous, and therefore dangerous. In our smaller vehicles, we have advantages with speed, maneuverability, and agility. But, we would do well to remember these trucks are a threat to us and us to them. Drivers may struggle to see us, to slow rapidly, and to maneuver. We all share some responsibility in not tailgating, cutting-off, or otherwise being aggressive in traffic. 

The government mandates that these trucks and trailers have a rear impact guard (49 CFR §393.86). Of course, most vehicles have bumpers, but these vehicles sit high on the road and and the need is for a bumper that is closer to the roadway, closer that is to the height of other vehicle bumpers. The law defines how wide it will be, how close to the back of the trailer/truck, how high off the ground, etc. The lawyers back in the day referred to it as an "ICC under-ride bumper." The point of it is to keep a smaller vehicle from getting up under a trailer/truck too far. Any collision can be injurious or fatal, but a collision between a small car and a trailer/truck that lacks such accessory can be fatal.

The lawyer victim in this litigation had collided with the rear of such a vehicle and his vehicle had penetrated significantly under it. The ICC had been there, but not very effective. The result was the vehicle's rear floor entering the passenger compartment of the lawyer's vehicle itself. The facts of the case reminded me that workplace injuries might be more likely in industry, but they were possible even in professions that more often involved relatively safe desk-sitting. Stated simply, any occupation can present dangers. We would all do well to remember that. Further, driving is a critical part of workers' compensation. A recent NCCI report noted that while workers' compensation frequency has decreased, motor vehicle frequency has increased. A car accident could happen to any of us. 

There was significant acrimony in the case. I was sent to mediation for the purpose of asserting the workers' compensation lien, section 440.39, Fla. Stat. The workers' compensation case had been settled, and there was little I could do but listen, watch, and report back to the client. The carrier had significant expenditures in the case, but had expressed little expectation that it would recover significantly on the lien due to the various legal issues involved that were likely to suppress "full recovery" in the civil case. The most apparent was comparative negligence in that the lawyer ran into the rear of the other vehicle. There was discussion of inattentive driving, distractions, and more. 

The plaintiff's attorney opened mediation with a video. It was not yet the age of cell phones, videos, You Tube, and Vine. Video was not unheard of, but cameras were expensive back then and a professionally-edited video more so. The use of video in that mediation was somewhat impressive. The technique demonstrated the verity of a picture being worth a thousand words. The video was powerful and explanatory. I am not sure a judge would have let a jury see it, but for mediation purposes (no rules) it was impressive and engaging.

There was much debate about whether the company that built the vehicle should have installed the ICC bumper, or the distributor, or the dealer that first stocked it, or the local dealer that had traded for it to fulfill a customer order. Memory fades, but I recall at least three or four defendants whose main contention was the duty had not been his/hers/its. There was also some debate as to who had actually installed the bumper, whether it's design complied with the federal law, and whether it had been appropriately installed and thereafter maintained. The variety of allegations and purported proof was fascinating. 

There was a technical defense issue regarding the specifications of the bumper. The details have faded, but the plaintiff's engineer was convince whoever did install that bumper did not do it appropriately. This was based in large part on the manner in which it had given-way in the collision. A second engineer had opinions as to how fast that lawyer must have been driving in order to effect the resulting collision damage. There were pictures, diagrams, and calculations. Was the bumper defective or the vehicle speed excessive? Both? I was surprised at how much less attention all the math and diagrams received compared to the video. The simplicity and emotion of the video was compelling. 

I remembered all of this in an instant as I stopped short in traffic last spring behind a vehicle with an ICC bumper that was rusted and damaged. I looked long and hard at the crack and rust and wondered what that second engineer from eons ago might say if s/he were viewing this vehicle. I shot a picture that day and reflected on it since. Of course, no engineer is likely to inspect such a bumper in the day-to-day life of some vehicle. The trucks and bumpers are essentially tools, traversing the byways of our country and also intersecting with our lives. Engineers and other experts only become involved when the worst happens. 

How many thousands of cars will pull to a stop behind particular ICC under-ride bumper without striking it? The odds are that no one will ever strike it and put it to the test. No one is out there inspecting these or policing compliance with 49 CFR §393.86. In discussing my observations with a few lawyers since that time, I perceive few even knew what that thing hanging from the back of the truck/trailer is. No, it likely takes an accident to draw such a rusted and cracked piece of steel to the limelight and scrutiny.

This is a patent example, but in the broader context, do we all do enough to maintain our safety and the safety of others? It is likely that lawyer years ago was in a hurry or somehow distracted. To strike a vehicle from the rear is not perceived as diligent; to do so with such speed and force suggests some negligence. It is likely that the person who installed that bumper was interested in completing multiple similar tasks that day, and found this one somewhat mundane. S/he likely never suspected someone would strike it hard enough to break/dislocate it. Those who bought the truck, sold it, and traded it likely never gave that bumper a second thought. 

We are surrounded in life with risk and potentials. We may hope that others have done their bit to make the world sufficiently safe. However, in the end, much of our chance for getting through each day safely simply falls to us personally. It is worth remembering that. However, in the occupational world, much is invested by employers and coworkers in the safety of workers. That is largely due to the potential downsides and costs for business. Certainly, the moral pressure, but more so the financial pressure. Accidents attract OSHA and the potential for fines. And, accidents result in workers' compensation and the potential for higher premiums and costs. These costs are seen as both recompense for the injured and a motivation for safety. 

We could all provide better focus on the safety of ourselves and others. Perhaps the easiest path would be less attention to smart phones and more attention on the road. The same might be said of any driver distraction (I recently passed a car in traffic, the driver had a newspaper draped over the wheel). And, we might all pay closer attention to the equipment we operate. Cracked and rusted is no way for a bumper to go through life. Remember, The Life You Save Might be Your Own (June 2019). 

Sunday, July 18, 2021

In PA a Judge is Reinstated

I recently ran across the decision of the Commonwealth Court of Pennsylvania in the cause of the Department of Labor and Industry v. State Civil Service Commission (McCormick), Case No. 1768. The decision is dated July 8, 2021. It is interesting in that it involves a Pennsylvania workers' compensation judge, Hon. Andrea McCormick, and her termination from the Pennsylvania agency that adjudicates work injury claims. The details provide contrasts regarding the structure of that agency and the Florida OJCC. The analysis provides interesting insights into the Code of Judicial Conduct, some subtle state distinctions, and judicial behavior.

In Pennsylvania, workers' compensation judges are not gubernatorial appointees as in Florida. The judges there are hired by the Workers’ Compensation Office of Adjudication and their employment is protected by various rules and the State Civil Service Commission ("Commission"). The court in this opinion recounts a lengthy service, the Judge was appointed in 2006 and was terminated in 2018. Her function was described aptly: "managing a continuing caseload of hundreds of cases in a prompt and efficient manner while protecting the due process rights of all of the parties." This seems an understatement, but could be reasonably applied to Florida judges. 

The court outlines some variety that is also illustrative. It describes the application of the “Civil Service Act,” as well as "the Governor’s Code of Conduct and the Information Technology Acceptable Use Policy." and various published "Management Directives," and "Performance Expectations Workers’ Compensation Judge." There are a variety of imperatives that can direct or constrain the adjudicator. Later in the decision, the court references a statutory code of conduct. In Florida, we have the broad and inclusive Code of Judicial Conduct, and some prohibitions on gifts. Perhaps it is fair to characterize the Pennsylvania experience as more regulated or more complexly regulated? 

The court describes some detail of the Code. It includes a similarity to Florida's, which is perhaps its most challenging. This is the broad and inclusive "appearance of impropriety" prohibition. There is much grey area there. Judges are asked to govern themselves in a manner that anticipates how some observer might perceive their words or actions. That is both broad and undefined, a challenge indeed. 

The court reviews the judge's employment history, glowing performance reviews, consistent performance, professional demeanor, timely decisions, and effective courtroom management. From the supervisor's standpoint, seemingly a model employee. In my days of employment law and workers' compensation practice, I saw many a supervisor that would advocate a termination despite very recent glowing performance evaluations. Supervisors too often fail to utilize the annual review effectively, fear the confrontation potential of frankness, or have a myriad of other excuses for their seemingly abrupt about-face on employee performance. Such reviews should be used candidly and provide specifics of challenges and needed improvement.  

In 2017 an attorney filed a complaint regarding a proceeding in which a "client was not successful." The judge had "complimented a brief written by" the attorney's firm, and the lawyer found the compliment "inappropriate because the firm ultimately lost the case." Thereafter an email complained of the judge "ruling contrary to an unreported Commonwealth Court decision"; which decision the Court noted had not been rendered at the time the judge ruled. A third email was submitted complaining of the outcome in another case, in which the Appeal Board reversed a portion of the judge's decision. In a fourth instance, the attorney complained about how long approval of a settlement had taken. Though not entirely clear, the context of the court decision suggests the same attorney or firm was the source of all of these complaints. 

The agency undertook a review of over 100 decisions rendered by the judge. It found that the judge "acted impartially in matters involving" the attorney's firm, and" did not find any impropriety on WCJ’s part. Shortly thereafter, the attorney complained the judge "spoke with another workers’ compensation judge about a matter prior to assignment for its mediation." This appears to be an issue of impropriety perceived, but the court noted "a recusal motion was never filed in the matter." Subsequently, the lawyer complained about the judge denying "a subpoena request," denying "a request to approve a stipulation," and finally that the judge "was having a personal romantic relationship with an attorney appearing before her." 

Notably, a recusal regarding the judge had been in place for years as a result of that relationship, though that disqualification/assignment system had "occasionally failed" to preempt assignments in some instances regarding various judges. That is distinct from Florida. There is no recusal system here. The Rules require disqualification in a case-by-case process. 

The complaints led the agency to review "6,000 of (the judge's) emails" over most of a decade. As that review was underway, the attorney complained yet again, this time alleging the judge "made inappropriate and biased comments on and off the record during a . . . hearing." It is not clear from the opinion what remarks were made, to whom, and what bias was perceived. 

The agency then informed the judge "at 3:00 p.m." of "a fact-finding meeting scheduled for the following morning in" another city. This short-noticed "meeting was conducted to provide WCJ with an opportunity to respond to the charges." This afforded the judge an opportunity "to view the emails that were discussed and to take notes, but she was not permitted to retain copies of the emails." It is similarly unclear how many of the 6,000 were actually reviewed. The Judge then filed a response to the charges.

Ultimately, the agency alleged violations of the Code, the IT Policy, and work expectations. The charges included:
(1) sending emails and sharing information with an outside party who conducts business with the Commonwealth regarding workers’ compensation cases; (2) engaging in ex parte communications; (3) using her Commonwealth email account to send and receive personal emails and purchase items; (4) using her email signature block when corresponding with outside parties; (5) making inappropriate and unprofessional remarks in emails; and (6) making inappropriate and concerning remarks on and off the record during a workers’ compensation hearing.
Multiple sections of the Code of Ethics, similar to Florida's, were asserted as bases for these allegations. Pennsylvania does not apply its broad Code of Judicial Conduct to its workers' compensation judges, but has a separate code specifically for them. That path has been tried in Florida, but the effort was abandoned in favor of statutorily adopting the Code. The adoption is not perfect, as the Code addresses things like running for election that are patently inapplicable. However, it is a reasonable touchstone on the vast majority of topics. 

The judge appealed to the Civil Service Commission and was afforded a hearing. The Commission concluded the agency "failed to present credible sufficient evidence that WCJ had violated any provision of the Code, the Policy, the Directive, the IT Directive, or the Expectations." The Commission took issue with the reliability of the effort to capture the various email communications. It specifically noted that the hearing transcript for the alleged instance of "remarks on and off the record" did not demonstrate anything "which could be categorized as discourteous conduct.” 

As a side note, the allegation was of "on and off the record," but the transcript reviewed by the Commission would not necessarily contain off-the-record comments. I strive to remain "on the record" in such interactions for this precise reason. In the event of differing perceptions of what was said and how, the record is an important tool. At the conclusion, the Commission sustained the judge's appeal and directed she be reinstated, paid back wages, and otherwise compensated.

The court, reviewing the Commission decision, reminded that "Questions of credibility and the weight to be accorded evidence are determined by the Commission." Those conclusions are not, in most instances, subject to appellate review. The Court found no fault with the Commission's factual conclusions, and affirmed the reinstatement, etc. It was not unanimous. one judge dissented.

The dissent concluded that the agency had "presented substantial, credible evidence establishing just cause for its removal of" the judge. It noted "the record clearly established" the judge "committed numerous violations of the Code of Ethics for WCJs," and "other standards of conduct for Commonwealth employees." 

The dissent concluded that the judge "violated the Code of Ethics in copious email communications with her paramour, a workers’ compensation attorney (Attorney), over the course of several years." Further, that the judge had "disclosed to (an/the) Attorney internal work-related communications." These included emails with injured workers' "personal information," and about "cases that were not yet released for publication." Internal emails between the judge "and her colleagues discussing and analyzing workers’ compensation case law" were also noted.

The dissent concluded that 
"forwarding internal, confidential communications to Attorney, who regularly appeared before the WCJs whose discussions she shared, not only violated the Code of Ethics, but it clearly demonstrated that she is unfit to serve as a WCJ." 
It notes that 
"some of the emails . . . forwarded to Attorney conspicuously contained the word 'Confidential' in the subject line, and one document she forwarded to him stated, 'This is an internal document not approved for distribution outside of the Department of L[abor] & I[ndustry].'" 
The dissent argues that thusly, "evidence contradicts the Commission’s determination that the emails did not contain any confidential information." The dissent seems troubled by an appellate review standard that defers to the factual determinations of the Commission in contrast to the facts present in the record. 

The dissent concludes that "the uncontroverted evidence established" the judge "failed to avoid the appearance of impropriety by intentionally sharing" those "internal communications and documents." It stresses that by "repeatedly and knowingly divulging confidential information to Attorney, the judge not only conveyed the appearance of impropriety, she also failed to “uphold the integrity and independence of the workers’ compensation system.”

The distinctions are intriguing. In Florida, the same Code applies to all judges. The appearance of impropriety standard is systemic and difficult at times to define and interpret. A major point of comparison is perhaps the due process afforded. In Florida, accusations are investigated and the agency head has authority to reach conclusions regarding probable cause. If that is found, then a written report is provided to the judge and s/he may file a response to any such allegations. The report and response may be provided to the Governor for review, and s/he may take action as deemed appropriate. There is no civil service protection in Florida, no hearing is required, and there is no appeal to the courts after the Governor makes a decision. Across America, there are similarities in state systems, and a fair few distinctions. This instance illustrates that aptly. 

Other critical distinctions include the variety of policies that bind the Pennsylvania judge. Whether an email violates an IT policy or other directive seems deemed less relevant than the "appearance of impropriety." Thus, while there appear to be more constraints on the Pennsylvania judge, the critical point in the Code seems to be the critical focus. The existence of a "blanket" recusal system is also intriguing; a methodology for a judge to pre-emptively preclude instances of probable or potential conflict. As representation evolves in cases, lawyers appearing and withdrawing, such a process would be challenging.  

With the information provided, the reader can decide whether the Pennsylvania Judge should or should not have remained terminated. But the above is noteworthy regardless. What else? Note that the complaints started years before the decision. There were many complaints and some seem to be curious (a judge cannot compliment a lawyer unless the lawyer's client will win the case?). In 2021, a process begun in 2017 concluded. That is a long process and likely frustrating for all involved. 

Easy lessons: Judges should use personal email accounts for non-work messages. Years ago a complaint investigation led me to review a sting of emails. I was astounded at their length, detail, and irrelevance to work issues. Judges should respect the privacy and confidence of peers. Lawyers should accept that judges are not perfect. We may get a decision wrong (just because an appellate body interprets a law does not mean a judge was anything but mistaken when entering an earlier decision on that point that is at odds with what the court later decides). Lawyers that believe sincerely that there is a reason for a judge not to preside should take the initiative of filing a motion to disqualify.

In all, a troubling decision; an interesting outcome. The distinctions between two systems highlighted. That anyone (dissent) views the judicial behavior as violative of the "appearance" standard illustrates that there is subjectivity in that broad prohibition. An "appearance" may well be in the eye of the beholder, and thus a challenge to predict or obey. 

Thursday, July 15, 2021

Ignoring the Road Leads to Accidents

Breaking news! Ignoring your problems will not make them go away. Who knew? (Sarcasm, sorry). The headline from a June article in The Florida Bar News' "Ignoring Cybersecurity Puts You and Your Clients at Risk," is perhaps a little less than informative. Imagine a headline in your local paper "Ignoring the road leads to accidents." But, this article is a must read for any small business person.

The focus is on a recent 7-hour seminar program on technology provided by the folks at The Florida Bar. It was presented by the  Legal Fuel program. They have a website full of links to help you with cybersecurity for your firm. I say firm instead of law firm as there is advice there that might benefit any business.

The lead premise from the recent program is pretty simple, lawyers are required to study technology. The Florida Supreme Court has concluded that technology is here to stay and that its challenges are worthy of our attention. Sound advice (CLE requirement) indeed. It is interesting that only two states have a technology education requirement for lawyers, Florida and North Carolina. Perhaps technology is not a concern elsewhere?

Within the Florida context, the discussion turns to the substantive requirements that lawyers face regarding education generally, largely Competence and Confidentiality. The Bar News article concludes that these two "require lawyers to be familiar enough with technology to take reasonable precautions to protect client data." The crux is patent, lawyers have both volumes of confidential data and responsibilities to protect it. 

The issue is, of course, also related to the very essence of legal services. People come to lawyers with very personal problems. They seek help and remediation, advice and confidence. Are lawyers really any different in this regard from doctors, accountants, and a variety of other professions? I would suggest not; not to diminish the topic but to suggest all professionals should share this concern. The program suggests that COVID has enhanced our technology and security dependency and therefore our challenges. This is seen in the transmission of data, the sharing of computers, and more; it should encourage us to be more cognizant still.

There is a recognition stated that technology is ubiquitous in our world today. Some express incredulity that we can be efficient and effective without it. The News article focused on how we perceive and plan for "business continuity," meaning that you are prepared for the worst in terms of losing access to your data (ransomware attack), or diminishing your image (public perception following a data breach), or merely the time required for rebuilding in the wake of a loss (replacing hardware, installing software, etc.). This might also include explaining to clients, The Bar, your insurance company, or others about impacts of such an event at your business. It may be a matter of trust, but after a breach if may be about proactivity, documentation, and remediation. 

There is advice about understanding the manner in which a business stores, shares, and secures data. There are a variety of ways data might be intercepted or lost. It could be as simple as details on a misplaced flash drive. Or, one might chose to use "common collaborative tools such as Office 365 and Google Drive" that could be breached. There have been instances of the biggest names in the business being breached, including DropBox, Microsoft, Apple, and Yahoo. Or, information could be intercepted during transmission over the internet. Worse, someone might intentionally enter your "virtual office" to take your data (for their own purposes), hide your data (to collect a ransom), or co-op your systems to provide ongoing access to data as it is acquired.

The article provides practical suggestions such as offsite data back-up. However, any transmission of data comes with risks. There is discussion also of "multi-step authentication and email encryption" to help with the challenges of theft or interception. Of crucial interest, the experts noted that lawyers are responsible for their own actions, but also for the actions of others. This includes lawyer staff in the simplest sense, but also the vendors a lawyer uses. If a lawyer is hiring someone to be a courier of papers, the lawyer may be responsible for that person's actions; similarly, when procuring a service for digital transmission or storage of data, the lawyer is equally obligated to be diligent regarding data protection.

The experts cited in the article acknowledge the benefits of software and services. However, they contend that the greatest threat to cybersecurity, the "weak link," is us humans that interact with the firm's data. We are the ones that might click on a link in an email and open the door. We are the ones prone to social engineering, where we obliviously allow someone into our confidence, accommodating their access to do bad. We are the ones that might receive or even find a flash drive and blithely insert it with the best intention of finding the owner, but wreaking havoc in the process. In the world of computers, software, and technology, the simple human element is indeed the weakest link.

We may unwittingly rely on computers. Tools meant to help us, such as digital assistants like Alexsa, Cortana, and "hey Google" may be able to record our conversations, share our data, and undermine our security; we may be unaware as it occurs. As Walt Kelly's Pogo famously noted, "we have met the enemy and he is us." The greatest threats to our digital security are thus all within our own control. We can educate ourselves, remind ourselves, and improve our focus and attention to the threats. The education and information above is free for the taking.

        Courtesy Walt Kelly, 1971.

But, more specific to the wealth of data and challenges we face in the workers' compensation community, there is a great upcoming opportunity. On December 15, 2021 at the WCI conference in Orlando, I will host a full day of cybersecurity training and education. We will have experts from a variety of backgrounds and perspectives. The program is included in your WCI registration. We will focus on the data, the practices, and the threats. Those who would do you harm are imaginative and persistent. Can you afford to be less? I hope to see you in December!