Sunday, April 23, 2017

(im)Perfect Storm

Technology fascinates me. I have recently focused on artificial intelligence in Artificial Intelligence in our World, and Another AI Invasion, Meritocracy? I have contemplated chatbots, and research, self driving cars, and more. Recently, Bob Wilson wrote about technology and essentially concluded that the changes that face us will not come abruptly and so we will all adapt. I thought of much of this as I read a recent article about a young lady that died in a vehicle accident. Though the thoughts are not linear, there are multiple points there that bear consideration.

Casey Speckman died in a "fiery, explosive wreck." The article on freep.com leads with the fact that she had been drinking ("was drunk"), and that the destroyed vehicle was a Tesla. Many see the Tesla as a harbinger of the world to come, with direct current electrical cars replacing the internal combustion vehicles which dominated the world of our youth. 

The story describes a perfect storm of bad circumstances. First, Ms. Speckman was driving a borrowed car (her boss's Tesla), with which she was less than familiar. She had been drinking (.21 BAC, more than double the legal limit). As she drove appropriately on a one-way street, she was confronted (and likely alarmed) by another vehicle that was driven the wrong way on a one-way street, and directly at her. She evaded the wrong-way driver, but according to witnesses the Tesla she was driving moved very fast. 

It is sad to see a young life extinguished. I have had to confront in recent months that people my age are fragile, and are passing. Just today an actor of my generation, Erin Moran of Happy Days passed at 56. Last year was a tough one for me in that regard, and 2017 is not looking so rosy either.

But it is always a little harder to see someone young pass. Ms. Speckman was likely less than 30, she graduated college in 2007 and law school in 2014. She worked for a software company that provided case management for attorneys, and the founder and owner of that company was the "owner of the Tesla" and the passenger that died with her in the accident.  A bright, educated, young person out in the world being a success. 

I discussed the story with a group of young people. After describing all of this, I asked what the primary lesson might be. I was heartened that the immediate and unanimous response was a resounding "don't drink and drive." That is an important lesson, one that we cannot repeat to ourselves and others often enough. Curiously, the car's owner had only a .17 BAC; still too high for driving. Why did the car owner think the right solution for his inability to drive was giving the keys to someone he had been drinking with? Why would anyone, in the age of Uber and Lyft, in a city full of taxis?

The young driver's, Ms. Speckman's, father recently met with the press about this accident. He alleges "that her odds of surviving" this accident "would have been much better in any other car." He places that blame on two aspects of the Tesla. First, the technology for the electrical system, comprised of an array of batteries. And second, the high performance of the vehicle. 

History has shown us some interesting lawsuits regarding the safety of vehicles. The survivors of actor Paul Walker sued Porsche alleging the vehicle in which he died lacked "essential safety features," according to CNN Money. The survivors of actor Anton Yelchin recently sued Jeep for a wrongful death, alleging that the gear selector in his vehicle was "defective and poorly designed and manufactured," according to The Telegraph.

But it is the performance of the Tesla that is being called into question in Ms. Speckman's accident. A witness to the accident said that the Tesla was moving quickly. He said it "It passed me like a flash." So, it may be that speed is a factor in the crash. Speed encouraged perhaps by the confrontation with the wrong-way driver. Human inclination and reaction may naturally be to accelerate (the old fight or flight ingrained in us all). The inference is that this car might have been able to accelerate like few others. The Freep.com article says that one Tesla model "accelerates from 0 to 60 mph in 3.1 seconds," from a dead stop. That is fast. Experience teaches us that kind of torque may accelerate eve faster when engaged in an already moving vehicle.

Witnesses also said that an explosion very rapidly followed the Tesla collision with a tree. The explosion was massive, and the resulting  "debris field stretched about 150 yards." 

It turns out the Tesla is powered by a 1,200-pound battery pack made up of several thousand small lithium batteries. The force of the crash apparently broke apart the battery pack. The article alludes to exploding batteries in cell phones and other devices that have been in the news recently. It also notes that there was an investigation into other Tesla battery fires that was closed in 2014 after the company "strengthened the battery compartments." The innuendo is that when these compartments rupture, there can be problems. 

Of course the first lesson of the whole situation is do not drink and drive. The second is that if you cannot drive, handing the keys to someone with whom you have been drinking is not a a "go-to" solution. Even without the alcohol involved, driving a performance care with which you are perhaps not familiar may present challenges and could likewise be dangerous. And finally, it may be that electric cars present some dangers that are unexpected (at least I would not have thought exploding battery). Whether the vehicle itself was responsible in any way, whether batteries can be better protected or safer, are issues beyond my knowledge. It seem possible that over time that will be sorted through litigation. 

So many things could perhaps have been different for Ms. Speckman. Less alcohol, less speed, no driver illegally going the wrong way. It seems it was a perfect storm, and the outcome is tragic. What workers' compensation professional has not seen something just as tragic and preventable and wondered "why?" But hindsight is always 20/20 and the game always looks different from the comfort of your armchair on Monday morning. It is a reminder that the world we live in is dangerous, and the decisions we make may have tragic consequences for us an others. 

Thursday, April 20, 2017

An Old War Story about Divorce and Workers' Comp

Remembering a case from years ago, I was representing a very large insurance company. They hired me to draft settlement paperwork regarding a fatality. The injured worker was undoubtedly killed on the job. No one had seen him fall, but several had been on hand when he landed. The only potential legal issue in the case involved the fact that he was wearing a safety harness, appropriately equipped with a cable and clip, and it was completely undamaged. So, there was some discussion of reducing the benefits for failure to use a safety device. But, when it got to me there was a deal. 

The adjuster had already reached a settlement with the workers' spouse, who was known to the employer. The settlement was a reasonable compromise, and all I needed to do was draft the document. Back then all settlements under Section 440.20(11) involved a detailed documentation of everything, called a "Joint Petition." I was almost finished with the documents about a week later when I heard from the adjusted again. It was one of those "huh?" moments when the adjuster explained that he had just heard from the deceased worker's "other spouse" in another state. Houston, we have a problem. 

Wanting to avoid any undue conflict in a sad situation that was surely just an error or misunderstanding, I asked the adjuster to call each spouse and ask for supporting documentation such as marriage license. I was confident that the situation would sort itself soon enough and decided set aside the Joint Petition, for further work after we heard from both (now) alleged spouses. Unfortunately, it was not a mistake. We soon received proof of two marriages, and could uncover no record of any divorces. 

This is the part on the late-night infomercial where the host says "wait, don't order yet." As we contemplated how to deal with the two spouses, the adjuster was contacted by the third spouse. She was a resident of a foreign country, and was contacting the carrier through a consulate in south Florida. upon request, she too provided proof of marriage. And thus, my simple assignment to draft a Joint Petition became an intriguing legal issue and a trial. 

In what way can one sort out entitlement to benefits among three spouses?

In Florida, death benefits are set forth in Section 440.16, Fla. Stat. It provides for benefits "on account of dependency upon the deceased," and sets out an "order of preference." The benefits hierarchy begins with "the spouse, if there is no child," and then provides for the "the spouse if there is a child or children," then to "the child or children," then to "the parents," and finally to "the brothers, sisters and grandchildren." It is a somewhat complex process, described in significant statutory detail. But, it does not have any reference as to what one does when "spouse" turns out to be "spouses."

We hired an investigator to travel to the foreign country. He reported back that marriages there were all recorded a large book, by hand, in a court clerk's office. And, the parties were given a document to memorialize their marriage (we knew that part, as the foreign spouse had sent us that certificate). Divorces, the investigator explained, were recorded in the same book when the divorce was granted. The court issued an order to each person memorializing the divorce, and then the clerk went to the book and page that memorialized the marriage, and put a line through the marriage record to memorialize the divorce. The date and clerk's initials were traditionally written at the end of that line.  

But, the investigator had not procured a copy of that page regarding spouse number 3 (in the order we learned of them, or spouse number 1 in the order of marriage occurring). The investigator did not provide this because, he explained, that page had been torn from the public records book and was therefore unavailable. There was no other legal record of divorce obtainable, because of the passage of time, except from the parties to the divorce. In our case, one of those was deceased and the other would be refuting her own claim if she admitted to a divorce. 

I performed a lot of legal research. A great motto for attorneys is to know the law, prepare fully, and be ready for anything. Good trial attorneys spend significant time preparing. We proceeded to trial, and the whole point was going to be, from my client's perspective, "pick a spouse judge." The carrier wanted to pay the benefits, but could not decide which person was the "legal" spouse. In a rare, small, victory no other claimants contacted us, and thankfully all three women denied there were any children, siblings or parents that were "dependent" in any way. At least there were only three potential dependents. 

After the extensive preparation, and dealing with the inevitable pretrial motions and discovery, we presented for trial before the Honorable Thomas Portuallo. My client's argument was simple in many respects. And, as we drove to the trial my conversation with the adjuster was mostly about which decisional authority might persuade the judge and which spouse would be the most credible. 

But, when we arrived, we found only one spouse present. Only the most recent spouse, married in Florida, had appeared for trial. For whatever reason the other spouses had declined to travel to the trial. Unsurprisingly, the Judge ruled in favor of the spouse that showed up. And despite my urging lawyers to always prepare, to know the fact, and the law, etc., it turns out that sometimes you win because you are the one that shows up. 

With the Judge's order in hand a few weeks later, I finished that Joint Petition and the case was soon settled and closed. As I reflect on various aspects of practicing law, a recurring thought is that no matter what you have seen there is a good chance you have not "seen it all."

Tuesday, April 18, 2017

PDMP Success and Doctor Shopping

Reuters reported in February that we are losing "91 Americans" per day to overdose. Interestingly, "since 1999, deaths from prescription opioids have quadrupled," and coincidentally so "have sales of opioids, including the painkillers oxycodone (Oxycontin) and hydrocodone (Vicodin)." This is not news. Overdose is a serious national issue.

The Reuters story goes on to describe that mandatory checking of prescription drug monitoring program (PDMP) databases reduces the "odds of doctor-shopping for opioid pain relievers." Generally, "doctor-shopping" refers to seeking a physician that will accede to the wishes of a patient. Doctor accommodation could be driven by a variety of factors including expedience, compassion, or profit. But the perception is that a patient may travel from physician to physician seeking one that will fulfill the patient's wishes.

This Reuters article highlights a recently published study by the "Substance Abuse and Mental Health Service Administration in Rockville, Maryland." According to the study, every state except Missouri has implemented a prescription-drug monitoring programs (PDMP). But, WorkCompCentral reported recently that Missouri seems to be making progress toward enacting this requirement. 

PDMPs are "state-run electronic databases designed to track prescribing of controlled substances." In the process of tracking the prescriptions, they also help "to identify people at high risk of using opioids for nonmedical purposes." Florida has had a PDMP for several years and has seen progress from the program. Other states are also seeing progress, and making adjustments to take advantage of the PDMP concept. 

The programs are categorized as "mandatory programs" and voluntary. The mandatory programs require physicians to check the database before prescribing potentially dangerous medications. Florida has a PDMP, but doctors are not required to check it prior to writing a prescription. Despite this, anecdotally it appears that pharmacists are checking the database prior to filling scripts. 

I am troubled anytime I see a discussion of prescriptions for "nonmedical purposes." That seems oxymoronic to me. Why is a doctor prescribing for "nonmedical purposes?" Doctors practice medicine, their purposes should be medical. This oxymoronic reverence is similar to statements recently voiced in regards to Ohio's efforts to stem overdose death. Ohio has legislation that bars "clinics that prescribe or dispense opioids without any legitimate purposes." Call me old fashioned, but I think that "legitimate purposes" would be a foundation of medicine generally. 

We have reached a point where medical doctors must be legislatively told to only medicate for "legitimate purposes," and not for "nonmedical purposes." That seems disappointing at best. Perhaps this is something that requires explanation, and perhaps some reader might respond and explain the reason for doctors prescribing life-threatening drugs for "nonmedical purposes." Would it make people safer if doctors writing such "nonmedical" prescriptions were simply removed from the marketplace?

Reuters reported that this Maryland study demonstrated that "in states where physicians were required to check an electronic database before writing an opioid prescription, the odds that two or more doctors would be giving pain relievers for nonmedical purposes to a single patient were reduced by 80 percent." This is a very persuasive statistic. There are effects demonstrated in non-mandatory states also. The study documented that voluntary program states saw a decrease of "doctor shopping" of 56% attributed to the PDMP.

Reuters reports that PDMPs result in the avoidance of 10 overdose deaths per day. The greatest success in decreasing death occurs in states with "the most robust" PDMP systems, and the systems in which information regarding prescriptions is most frequently updated and checked. Ten overdoses per day equated to 3,650 American lives saved annually.

There are those who believe that PDMP efforts successfully limit access to prescription opioids, but they are concerned that this success may drive users to illicit street drugs such as Heroin. Those street drugs are not supervised or limited by any physician or pharmacist observation or interaction. The cited study results did not support that fear. It contrarily "found that PDMPs did not lead to an increase in people starting to use heroin."

The gist of the study and the story is that PDMPs are a promising tool in the effort to address overdose and death issues. However, some caution that "they aren’t a panacea.” One doctor who treats the effects of opioid addiction counsels that "we really need a comprehensive approach. It isn’t one thing that will help get us out of the opioid epidemic.” So, there has to be a combination of efforts if the drug overdose pandemic is to end. But, it appears that the PDMP process is a step in the right direction, particularly for the 10 people who will live today as a result. 

Perhaps the greatest success will come from continued attention to the issue of overdose death. More education, greater awareness, and further discussion cannot hurt the cause and it might just save someone's life.

Sunday, April 16, 2017

When Justice Sleeps

Back in the day, I was called upon to "second chair" a trial in Circuit Court. The circumstances were intriguing and the facts of the case were complex. It was a medical malpractice case in which a partner in my law firm, Deborah Smoot, was defending a physician. There were multiple live witnesses, complex legal issues, and I was a young lawyer eager to be involved. 

Although several witnesses appeared live at that trial, there were some experts that were not available. Of course the jury could read the deposition transcripts of those witnesses that were placed in evidence. However, Attorney Smoot thought it best for the jury to hear the testimony. The practice was to read the depositions to them. To make that reading experience more interesting, I was called to the witness stand. Ms. Smoot read the questions and I read the answers. As I recall, I was three different experts during that trial. 

The experience has stuck with me over the years. I had been coached on reading, and encouraged to make eye contact with the jurors as I read. Because of this, sitting in the witness box, I was somewhat turned toward the jury on my left, looking at Ms. Smoot periodically towards my right (standing near the end of the jury box), and the judge was just behind me. 

I recall being several pages into one of the depositions when a strange noise crept into my consciousness. A dull, low-pitched sound coming from behind me. I was focused on my role as Dr. "Something," and it took several pages of this incessant noise before I comprehended that someone was snoring. I am not sure if that realization came from my accumulating cognitive recognition, or if it was because over time the snoring seemed to become louder. I wish I were joking about this. 

The snoring came to an abrupt stop when the attorney for the plaintiff rose with an "objection your honor . . ." I do not recall the basis of that objection, but as I recall it the judge made a ruling without any pause or indication that he had not been with us all along. I recall the "objection your honor" interruption being employed more than once that day in the face of recurrent snoring. At the time, I frankly wondered how anyone could sleep through anything as compelling as my reading. 

Attorney Smoot left that law firm, and opened a practice of her own. Within a few years, she was involved in an automobile accident and passed. As I write this, I realize that I have not thought of her in a number of years, of her advice and support when I was a young attorney full of ideas and ambitions, and lacking the kind of practical experience that only an engaged mentor can provide. She was a good mentor, the kind for which every young attorney should hope.

That trial experience came back to me when I recently saw an article about a Texas judge who was filmed sleeping during a hearing. As United Airlines has reminded us recently, we must all Assume Everyone is Watching us (and recording on their phones). According to a blog post, Judge Larry Craddock slept through the testimony in a case about a suicidal teenager. The story says that people in the hearing unsuccessfully "tried all of the polite ways of nudging the judge out of his sleep like coughing and moving around books loudly." Apparently, no one thought of the more blatant "objection your honor" approach. According to the Daily Mail, the judge "slept through a quarter of the three-day hearing." 

In the digital age, with a video recorder in every cell phone, the judge was confronted with video evidence of his snooze. He resigned and apologized. He noted that his drowsiness resulted from medication he was using. The Daily Mail reported that this was not the judge's first instance of falling asleep during proceedings. 

It is also not the only instance of alleged snoozing in the courtroom. WorldNetDaily reported that a U.S. Supreme Court justice dozed during oral arguments. In her defense, an witness noted that "the subject matter was extremely technical,” and the justice used the "bench as a pillow." I do not recall the judge in my trial actually putting his head down to snooze, but perhaps that is a privilege reserved for Supreme Court Justices?

An Australian physician has published a paper about judicial sleepiness. He noted that "in 10 cases, judicial sleepiness resulted in a retrial and, in up to 5 cases, resulted in dismissal or retirement of the judge." The doctor's conclusion is that "judicial sleepiness is not uncommon and is viewed negatively." He added that generally "sleepiness-related errors occur predominantly during exposure to monotonous activity." 

What can we learn from these anecdotes? It is critical that a judge remain conscious and focused on the matter at hand. People wait extensively for the opportunity to tell their story and seek redress. Judges owe it to those people to be alert, attentive, and engaged. Whether one is a supreme court justice or not, there is no excuse for politely ignoring a sleeping, or otherwise inattentive judge. 

That material being presented is technical, or repetitive, or otherwise is no excuse. All of the evidence presented at trial is relevant, pertinent, and critical. That is why the attorney is presenting it. If the evidence were otherwise, then the opposing attorney(s) would certainly object ("irrelevant," "cumulative," etc.). If such an objection is well-taken, and sustained, then questioning may be adjusted and the matter moves along. But in the absence of such an objection, the evidence is relevant, pertinent, and critical. In a workers' compensation proceeding, with no jury, it is particularly critical for the judge to remain attentive; to both hear and fully understand the evidence. 

Another lesson might be in dealing with an outlier situation. What should parties do when a judge is inattentive or asleep? In some instances, noise may be effective. However, the attempts in this regard were ineffective in the Texas situation. Perhaps interrupting the proceedings with a firm "objection your honor . . ." will do the trick. Perhaps it is best to request a recess, and maybe everyone involved will benefit from the opportunity to arise and move around some? Should the parties video the judge? That is a difficult question. Undoubtedly, that course was effective in Texas. However, various states may have laws regarding recording someone without consent. However, it may be difficult to contend one has an expectation of privacy in a public judicial proceeding.

In any event, attorneys and parties might face such a challenge. How to regain attention in the moment (that trial, that witness, that argument) is one issue. How to deal with a pattern of behavior over time may be a larger issue. In that larger context, parties owe it to the system to report inattentive behavior that is recurrent or persistent. Systems cannot address situations that are not reported. Certainly, there may be reluctance, but that should be overcome. Bad behavior should be reported so that it can be addressed. 

We owe full attention and respect to the people that appear before us. Hey! Wake up, this post is over. Get back to work. 


Thursday, April 13, 2017

When is Profanity Appropriate?

A CBS news story, How to get ahead at work; Learn how to cusscaught my attention recently. I had decorum on my mind when I saw the headline. I have increasingly been hearing profanity in professional settings. Advice to "learn how to cuss" intrigued me; I think most of us learned how to cuss early in life. The learning for adults is perhaps more likely focused not on "how to," but on when "not to" cuss. 

A few people who visit our offices do not display appropriate decorum, and their actions/words concern me. In a recent conversation about our offices, I was asked "when is it appropriate to drop an f-bomb in a professional office." The easy answer seems to me to be "never," and I would hope that everyone would feel similarly. 

A recent Huffington Post article listed 25 Reasons why the F-Bomb is Appropriate at Times. I read that list with great interest. Frankly, there is not a single instance on the list in which I could not think of something more appropriate to use than an "F-Bomb." I think it is not that this word is useful or incomparable to other words. I think we could all find better words with which to express ourselves. 


The CBS article seems to contradict my knee-jerk reaction of "never." It suggests that "profanity doesn’t have to be a liability in the workplace." Instead, it contends that profanity "can be a persuasive tool that conveys enthusiasm and honesty." And, believe it or not, some insist that there is science behind this, according to a "cognitive science professor," Benjamin K. Bergen, from the University of California San Diego. He suggests that cursing "can hurt and offend" but can also "unite and inspire."

Professor Bergen argues that "profanity is about expressing emotion." Since work places are "emotional too" the use of profanity is effective for engaging "with other people in more familiar ways, more engaging ways." He says that in a situation of "social closeness," the use of "profanity is more likely to be perceived as an indicator of a level of comfort and informality." That someone would swear around you is suggested to be a signal of acceptance and effectively collegiality. But, Bergen admits, it is possible that persons who use such words can be "perceived as out-of-control, unhinged, uneducated, unaware of social rules." 

Bergen contends that while in "same-sex groups," the use of profanity is equally likely by male and female speakers. However, the "strongest negative impact" is not when used within a group, but "across groups, and often across genders." Women find negative connotation in male swearing, and men find it in female swearing. While those perceptions may seem unfair, they exist. The professor's conclusions regarding gender raise interesting questions. Do people inquire regarding the gender of those in a particular group or conversation? Or, do people make assumptions about the gender of those around them based on physical appearance? 

Age groups are also believed to perceive offense differently. Professor Bergen says that millennials (born after 1980) are less likely to be offended by the words which offend Baby Boomers (born 1946-1964), such as the "F-Bomb." Millenials, he says, are more likely to be offended by "slurs -- racial, ethnic, sexual slurs." For example, polling indicates that the "strongest 'F' word, according to millennials, is not a four-letter one," but "a three-letter one, a slur for homosexual people." Essentially, "younger Americans focus on words that are insulting, that denigrate particular groups," more than upon words offensive to Boomers, such as the "F-Bomb."

Professor Bergen says that there is a "democratization of media." He claims that profanity is so prevalent in media, including Internet games, that "you get desensitized to it." He argues that perceptions about language are fluid; that words and phrases are not themselves "inherently bad," but are bad in a particular moment and context. His argument seems to be that words gain acceptance through repetition and conditioning. 

In this final conclusion there seems common ground. The Huffington Post author has concluded that the "F-Bomb" is appropriate in daily living. The instances in which she finds it "appropriate" are interesting, and whether someone else would find those instances compelling or trivial is a subjective conclusion. But, my question was not whether the use of such language in one's home, like her example of "when you cannot fold the fitted sheets for your bed," is or is not appropriate. In essence, I really do not care if you drop an "F-Bomb" in your linen closet. 

My question is "when is it appropriate to drop an F-Bomb in a professional office." I have carefully considered Professor Bergen's thoughts, and the Huffington Post essay. I remain convinced that the only appropriate answer to this question remains "never." My reflection has not changed the conclusion that this language is not appropriate for a professional environment. It will not make me feel more comfortable with you, nor build collegiality between us. 

The fact supported by Professor Bergen's research is pertinent in three significant points. First, other people will decide whether they are offended by our language. We do not decide what offends others. The others make that subjective decision for themselves, and we may very well demean ourselves with poor word choices. Conversely, I am doubtful anyone thinks less of us when we fail to drop "F-Bombs" ("gee, if he liked me more he would have used the F-Bomb there"). 

What brings people to the Office of Judges of Compensation Claims? Conflict is the usual answer. What do they seek? They seek resolution of conflict, through convincing others to either compromise in a mediation setting, or to agree with their advocated positions in a hearing setting. 

When attempting to influence others, odds are not enhanced by offending them. Though Professor Bergen cites data that supports there may be acceptance of certain words within ages or groups, it seems impractical to assume that such acceptance is universal. People come from various backgrounds and are simultaneously members of various demographics. Is use of an expletive like the "F-Bomb" worth the risk of offense?

Second, Professor Bergen's contention is that profanity can "unite and inspire." He believes that dropping the "F-Bomb" in the work place can motivate positive behavior, that it can build a comfort and camaraderie. But, it is impossible to know the predilections and perceptions of your listener. The intended "compliment" of camaraderie may instead be perceived differently. The listener may not be complimented by your willingness to speak with your "guard" down, but may just be offended by your words and their subjective perception of your lack of couth. 

Finally, and perhaps most importantly, it appears that different people have unique perspectives about words. One might be fine with the four letter "F-Bomb" and yet put-off by the three letter "F-Bomb." Remember, your listener will be an amalgamation of her/his perceptions, beliefs, and values. The person whom you are trying to convince or persuade may or may not share your conclusions or feelings about words. Your intended message may or may not come through as you wish, and may be a distraction. 

I return to the initial premise. When is it appropriate to drop the "F-Bomb" at the Office of Judges of Compensation Claims? The answer is "never" and it does not matter which "F-Bomb" you mean. Using language that has the potential (not probability) to offend the audience is not likely to move the day in your direction. This is true if you are dropping such expletives in the lobby, a private mediation room or hearing room. Once the listener is offended, your chances of persuading them is potentially compromised. If you find you must drop the "F-Bomb," I recommend doing it in your linen closet at home. 

Recently, I wrote Challenges in Policing Appearance. It it, I suggested that "if your appearance is professional and clean, it will demonstrate respect for the process, your clients, and the people (employees and employers) that it is meant to serve." Likewise, I would suggest that if your language and demeanor are professional that will also demonstrate respect for your client and those around you. If you language is perceived as abusive or foul, you risk alienating your audience and complicating your odds of success. 

If you have an affinity for the "F-Bomb" (either of them) or other potentially degrading or insulting language, embrace it. But, for the sake of the others that visit and use our public facilities, please embrace (and use) that language somewhere else (at home in your linen closet). Your listeners will appreciate the respite, and your chances of persuading and prevailing are enhanced.


After this post was published, this interesting story about college professors, tenure, and foul language came to the fore and is perhaps of interest in this context.

Tuesday, April 11, 2017

Judicial Self-Promotion

Playing the "judge card" is a phrase that I hear from time to time. I have heard stories about various judges allegedly interjecting their profession or status into situations, in the hope of receiving treatment from others that is different that what the public generally might enjoy. These are anecdotal. But, if it never happens it is curious that these anecdotes are told. 

Judges in Florida are bound by the Code of Judicial Conduct. It has implications regarding the treatment of judges. Each state has such a Code, and each is subject to interpretation within that state. As a result, there are likely to be inconsistencies both in the Codes and the interpretations and enforcements. 

Two portions of the Florida Code are worthy of consideration in this discussion. Canon One says "an independent and honorable judiciary is indispensable," and that "enforcing high standards of conduct," is important, as is personal observation of high standards. In other words, judges should set an example, an honorable example.

Canon Two says "a judge shall respect and comply with the law." Judicial behavior should "promote public confidence in the integrity and impartiality of the judiciary." A judge "shall not lend the prestige of judicial office to advance the private interests of the judge or others." This Canon is what prevents judges from appearing in fund-raising activities and events. 

How might the "prestige of judicial office" be used to advance the judge's own interests? How about to get out of a traffic ticket? I have heard stories of judges who keep their driver's license in a wallet that also displays judicial credentials (I have heard similar stories about police officer's display of a badge). Opening the wallet to retrieve the license "coincidentally" exposes the badge or other credentials to casual view. But what if a police officer knew the stopped vehicle driver was a judge before the license was ever seen?

I ran across this vehicle during spring break in a Florida tourism destination, and it made me think about the Canons. 



Just above the plate number on this Texas plate, in bold letters, is the phrase "STATE JUDGE." That frankly shocked me. First, because a great many judges spurn public attention, and such a plate instead may attract it. Second, the license plate made me think because a Florida judge making such a display would seem to run afoul of the Canons discussed above. What could be the point of identifying oneself as a judge on a license plate? I found myself repeatedly thinking about this, and it led me to do some research. 

I was not alone. It turns out the New York Commission on Judicial Conduct issued a report on this very topic in 2013. Four Judges and six attorneys compiled a 65-page report focused on judicial license plates. It addressed two main questions: (1) "what goals are advanced by the issuance of judicial license plates," and (2) "are there potential negative consequences that outweigh whatever good such plates may promote."

The study grew from a decision in 2012, in which the Commission removed a magistrate from office. in New York, there are judicial license plates similar to the one pictures. There is also a license plate available that identifies the car owner as a member of the "State Magistrates Association." At one time that plate option apparently reflected merely "SMA," but later the official seal or emblem of the association was added. Present and former magistrates and town justices are eligible for SMA membership and therefore for the SMA license plate. 

The removal of the New York magistrate involved Judge Schilling. The judge was issued a ticket by the Highway Patrol. In a second incidence, the spouse of a second magistrate was ticketed by a municipal police officer. Each driver's vehicle displayed the "SMA" license plate, publicly suggesting the driver's office or connection to judicial office. However, neither driver verbally informed the ticketing officer of judicial office or relation to judicial office holder. 

The State Trooper, after citing the magistrate, "visited Judge Schilling and retrieved the ticket, which effectively disappeared from the law enforcement and court systems." In the second instance, Judge Schilling learned of the other magistrate's spouse's ticket and "set in motion a process by which every copy of the ticket disappeared, except the one issued to the motorist." The judge received special treatment and provided special treatment based upon judicial office. 

The Commission concluded that it was appropriate to remove Judge Shilling from office for these offenses. It also concluded that ticketing of judges is an issue in New York, based upon this investigation and what it had learned "over the years, in the course of investigating other complaints of ticket fixing."

The NY Judicial Commission concluded that there is at least the "potential appearance" that judicial license plates "may contribute to a judge getting an unwarranted break," and thus it took up the investigation and issued this report. It noted that New York is one among 12 states total that allow this "vanity" license plate practice. It is not uncommon for New York judges; "424 state-paid judges," "1,832 members of the SMA" and "nine judges of the federal courts" were reported as having such "special plates," including two of the four judges on the Commission. 

In preparing its report, the Commission polled a sizable population for comment and commentary. It noted that some challenged the Commission's authority to address the topic, some criticized the "vanity" plate practice, and several "proposed rationales for" the plates. The rationales included pride in being a judge, facilitating parking, state revenue, and encouraging judges to drive responsibly. Opposition noted security concerns and that such plates "help to evade citations for speeding, parking and other violations."

The Commission concluded that "there is no question that a judge should be disciplined for raising his/her judicial status to avoid" consequences or a ticket. That is, a judge could not tell a police officer about being a judge to avoid a ticket. It concluded, however, that "displaying a judicial license plate on a personal vehicle does not per se create an appearance of impropriety." It cautioned judges to "weigh the pros and cons carefully before opting to display" such a license plate, and that judicial education on the topic would be worthwhile. 

An attorney member dissented from the "Commission's milquetoast Report." He characterizes the availability of such plates, in the face of prohibitions on receiving "special treatment" leads to a "schizophrenic message" to judges that "leads to bizarre scenarios." He cites examples of judges stopped for driving under the influence and being driven home instead of arrested. He cites the Magistrate Schilling example of a trooper returning to retrieve a ticket (how many of you have earned a ticket, but had the officer later come to your home to retrieve it?). He contends that such plates and the inevitable results contribute to the "inescapable public cynicism" that emanates from such stories. 

A Judge member of the Commission wrote to respond to this attorney. He notes that a Commission conclusion that such plates are improper implies that they have always been improper, and thus that hundreds of New York Judges "would be at risk or potential disciplinary proceedings" for having displayed them. That argument is about as convincing as the "all the kids are doing it" argument that failed to convince mom so many times while I was growing up. The Judge also argues that the judge's intent in procuring and displaying such a plate should be more important than any effect of such plates. One wonders if the intent of a judge telling a police office of judicial position would likewise be more important than the effect, from the perspective of this Commission member?

In the end, it is an interesting debate. It is fortunate that Florida does not allow such displays, and more fortunate that it does not enable such behavior through an available vanity plate. It is conversely unfortunate that 12 states allow and and facilitate such behavior. Having considered the various arguments justifying the practice, I remain unconvinced that any justifications even come close to outweighing both the inappropriate effect of such plates or the negative impact they potentially create with the public. 

Judicial vanity plates, or any similar public display, simply has no positive effect. Such displays are at worst an exploitation of public office to advance the judge's "private interests." At best, they are less than honorable and do not "promote public confidence in integrity and impartiality." That some behavior, such as these plates, has been tolerated or even promoted historically is no justification for it to continue. American history is replete with examples of re-thinking implications and altering the law accordingly. 

Hopefully such license plates and other similar public displays will diminish. Their loss will cause no harm. Their presence causes no benefit and may either support or promote public cynicism or distrust of our judicial system, which system is critical to the very foundation of our land of laws. Playing the "judge card" is inappropriate, and it does not become less so because it is on a license plate. 




Sunday, April 9, 2017

What would you do for $2 billion?

Yahoo reports confidently that The Way People Buy Legal Marijuana will Change in 2019. It is an intriguing headline that belies the fact that there is no "legal" marijuana in the U.S. Marijuana is a Schedule I drug, and according to Federal law has "has no currently accepted medical treatment use in the U.S." 


The U.S. has a federalist constitutional government structure. According to "the Supremacy Clause," the U.S. Constitution, and the laws of the United States are the "the supreme law of the land," "anything in the Constitution or laws of any state to the contrary notwithstanding." If some substance or action is against federal law, states can not "legalize" that. If Florida passed a law legalizing the printing of currency or Georgia's legislature established restrictions on travellers from Tennessee, their actions would clearly violate the construct of American governance. Federal law would override. 

The phrase "medical marijuana" is no less an oxymoron than "jumbo shrimp," "seriously funny" or "constant variable/" Likewise, there is no "legal marijuana." As the government has decided marijuana has no medicinal function, it is against the law to grow it, possess it, sell it or use it. Until that changes, people can be penalized for their involvement with it, whether states elect to enforce the laws or not. 

And, some states have elected to no longer have parallel state laws regarding marijuana. This is not "legalization" under state law, but a "decriminalization" under state law. These states have elected not to prosecute the cultivation, possession, and sale of certain amounts of the drug. Those decisions have come with revenues. Colorado takes in over $70 million in tax revenue from pot, more than it does from alcohol according to Time. Sales of pot in Colorado have topped $1 billion, according to Fortune

There is evidence that it has not been a trouble-free decision. Law enforcement in Colorado has been shocked to find that people are unlikely to obey the limits and parameters that state law has set. I recently noted the issues with "grow houses" and pot production in Marijuana Headaches in Colorado. Essentially, having been told that the state will not prosecute for possession of "x" plants, it appears a fair number of Coloradoans are growing substantially more plants. Law enforcement in Colorado ignores federal law, and appears unable or unwilling to enforce it's own laws. The legislature there appears poised to "fix" that problem by passing new laws for the growers and police to ignore. 

A recent post titled Treat Her Like A Lady: Civil Forfeiture’s Lack of Chivalry by blogger Chandra Bozelko details the pervasiveness of "civil forfeiture" in the U.S. She notes that "annual deposits from forfeiture reached $4.5 billion," which represents a "a 4667 percent increase from 1986." What is "civil forfeiture?" In effect, a state may seek to keep people's property because it is connected with some crime, and so can the federal government. 

Ms. Bozelko notes that forfeiture does not require conviction of committing a crime in most states (the exceptions are Nebraska and North Carolina). In the remaining states, it appears that there is no requirement that the owner of property need even be charged with a crime in order for the government to seize and sell their property. Even when "innocence is as likely as guilt," the "state still gets to keep the property." Ms. Bozelko argues that this process is "no way to treat a lady," lady justice that is. 

And, it is not just the states that engage in this process. The U.S. Department of Justice has an Asset Forfeiture Program also. It can seize "assets that represent the proceeds of, or were used to facilitate federal crimes." That could be land, buildings, tractors, trucks, cars, computers, furniture, almost anything. According to law enforcement, quoted in the WAPO, the concept of civil forfeiture is "a tax-liberating gold mine.” And legal luminaries such as former U.S. Attorney General Loretta Lynch have embraced it. 


Of course, the challenge of this process is finding the people from whom property can be seized. The WAPO reports Millions of dollars have reportedly been spent training police across the U.S. to spot those engaged in potentially criminal activity, and to engage this civil forfeiture option. And there are many examples


That training has resulted in the $4.5 billion in annual forfeiture reported above. But what if the police did not have to look for the criminals? What if the criminals literally put up neon signs that read "come and get us, here we are?" And, as ridiculous as that sounds, that is precisely what a great many have actually done. 

I have not been in Colorado in a number of years. But, it turns out that there are over 600 "recreational" pot stores in Colorado. According to the ColoradoPotGuide.com, "there are more dispensaries in Colorado than Starbucks, McDonald’s and 7-Elevens combined -- and the numbers keep growing. If you want to find them, just search the Internet for where are pot stores in Colorado. While police across the country sit in cruisers, attempting to spot the next forfeiture contestant, the Colorado contestants are essentially in plain site, with neon signs and Internet advertising. 

According to Business Insider recreational marijuana is "legal" in Colorado, Oregon and Washington. That report also notes how possession is "legal" in California, Maine, Massachusetts, Nevada, and Washington D.C. But, it does not appear that these other states have the volume of ready drug dealers, the "dispensaries." In Oregon, there are 418 dispensaries. In Washington state there are at least 99 dispensaries. 

These recreational point-of-sale locations, though apparently a significant number, are dwarfed in some instances by the number of locations in which pot is grown. Among states that do not prosecute possession of marijuana, Washington state is alone in not allowing "home grows," according to The Stranger. But, that may change this year, according to a Fox affiliate there. 

In Colorado, residents may grow various quantities of pot plants in their homes. It is a booming business, of which police are fully aware. Knowing where the growers are and their non-compliance with state grow limits, Colorado police do little if anything to police the cultivation. A local news source in Colorado, the Gazette, reports that the U.S. Drug Enforcement Administration "is aware of of about 250 illegal operations within city limits" in El Paso County, Colorado. 

Oregon allows people to grow illegal marijuana in their homes, but only four plants each, according to ilovegrowingmarijuana.com. Thus, there are likely significant volumes of "home grows" in Oregon, but they are not as likely to be as obvious as the larger operations, which are well-known to authorities, in Colorado. But, in Oregon, there are 282 commercial known cites growing pot, according to OregonLive.com

So, what if the Federal Drug Enforcement Agency (DEA) decided to enforce federal law. It has become a seemingly alien concept in recent years, but the last few months have illustrated that there may be an inclination toward enforcing federal laws again. And, before objecting based on the cost of incarceration or punishment, remember that this post is about civil forfeiture, not criminal incarceration. Prosecuting, housing and feeding inmates is expensive. What if the DEA simply went to the open, obvious locations and seized property? It has been reported that the new U.S. Attorney General "is a major supporter of civil forfeiture."

In El Paso County, Colorado, there are 663,519 people, and 250 known illegal grow operations. There are 5,300,000 people in Colorado, so El Paso County represents about 12.5% of the Colorado population. Extrapolating, there are possibly about 2,000 illegal grow houses in Colorado. The median home in Colorado is valued at $324,600. So, if each illegal grow house was forfeited, (2,000 x $324,600) it might yield $650 million. 

If the raid on each grow house also yielded one vehicle that had been involved in transporting related material (marijuana, seeds, cash, fertilizer, equipment, etc.), that would be 2,000 cars. In Colorado, the average used car sells for about $15,000, according to the Denver Post. Those cars might bring another $30 million at auction. 

The recreational "dispensaries" that are clearly known and easily located currently numbers at least 1,117 in Colorado (600+), Oregon (418), and Washington (99). If each of these commercial properties was worth what the Colorado median home value ($324,600), that would be $362 million. If each of these dispensaries yielded a single vehicle that had been used in the criminal enterprise, that would yield another $17 million. These figures of course are thought of in terms of seizing pot stores, but in at least some instances it is possible entire malls or apartment complexes might be seized for their role in the pot store co-conspiracy. 

Do these dispensary owners and employees purchase anything with their earnings and profits? Perhaps one home and one car could be seized from the store manager or owner of each dispensary, another $379 million. 

It is entirely possible that about $1.5 billion ($650m, $30m, $379, $379) could be seized with little to no real effort. The locations are known and even advertised. 

Remember Colorado had sales of over $1 billion last year. There was another $1 billion in Washington State. Oregon was another $160 million. That $2.16 billion equates to a daily revenue stream of about $6 million ($2.16/365). When each of the dispensaries is raided and seized, that seized cash alone could yield $6 million. That figure alone would easily pay the time and overtime for the DEA agents effecting this enforcement. 

First offense penalties (Federal) for possession of marijuana is $1,000 fine and selling marijuana can carry a minimum fine of $250,000 (up to $4 million for large volume dealers). Assuming that each dispensary (1,117) and "home grow" (1,997 in Colorado alone) yields one person that can be fined for possession, that generates $3 million in fines (how many stores of any kind have you visited with only one person employed?) And, each dispensary could be fined at least $250,000, yielding another $280 million. 

Each "commercial grow" (282 in Oregon alone) could be fined at least $250,000, likely generating another $187 million. These potential fines total $470 million. If the Racketeer Influence and Corrupt Organizations Act (RICO) were engaged, perhaps each employee of each company or enterprise might eventually be fined for their involvement. 

With virtually no investigation (locations are either known or reasonably simply discerned), federal law enforcement could generate $1.5 billion in property forfeiture and another $470 million in fines, a total of $2 billion. 

What would you do for $2 billion? 

If it involved looking and hunting, perhaps you would be disinclined, but does the term "shooting fish in a barrel come to mind? 

The total annual seizure forfeitures are estimated at $4.5 billion. And these minimal efforts in Colorado, Oregon, and Washington could easily increase that total by 33% in a single year in seizures alone, with another $470 million minimum in fines. 

It is possible that these estimates would not come true. Possibly the homes, stores and cars involved are either overestimated in volume or overvalued. But, it is as possible that the figures could be even higher. 

And, across the country, there are literally thousands of "medical marijuana" dispensaries. Ignoring that the supreme law of the land declares that marijuana has "has no currently accepted medical treatment use in the U.S.," there is nonetheless "medical marijuana." And each of those dispensaries could yield a $250,000 minimum fine, a $350,000 building and a few $15,000 vehicles. These could quickly add up to another $1 billion. There is no investigation necessary, the locations, names and business hours are published on the Internet. 

What would you do for $2 to $3 billion? Maybe I will drop by the White House and suggest I be appointed "Federal Agent at Large?"  Maybe work on commission? What is 10% of $3 billion, what is 1%?  Thank you very much!