Thursday, December 12, 2019

Internet, Evidence, and Admissibility

At a seminar in November, I got an earful about social media. The presentation claimed that each second of the day there are: 9,000+ tweets sent, 50,000+Google searches, 2,000,000+ emails sent, 2,000+ Instagram pictures uploaded, and 1,500 Skype calls. I found each of those intriguing. I am particularly curious as to how many of those pictures are of someone's dinner. It has been claimed that some choose their holiday meal for photogenic reasons. 

The presenters in November noted that the prevalence of such media has led these platforms to become a part of everyday law practice and litigation. There are innumerable instances in which electronic data may become interwoven into the proofs and defenses of litigated claims. One cited case concluded that such evidence will evolve from merely common today to predominant in our near future. 

There was discussion of many challenges that lawyers may face with such evidence. Mention was made of relevance (section 90.401, F.S.), authenticity (sections 90.901 and 902), and hearsay (sections 90.801-90.805). The presenters skipped in that regard to the identification of some "exception to hearsay." I was struck by that, as it is consistent with my experience on the bench. Lawyers are too quick to concede that something is "hearsay" (section 90.801) and move on to search for an exception (sections 90.803 and 804). 

In fact, a great many statements are not intended to "to prove the truth of the matter asserted," and thus are simply not hearsay under the definition. If it is not hearsay, why look for an exception? That is lazy litigating. The analysis should begin instead with why is this evidence being introduced. If a picture from my Instagram account is introduced to prove I was water skiing (when perhaps I have testified I cannot), then there is a hearsay problem. If that picture is instead introduced to explain why I was placed under surveillance, that is what effect that picture had on the viewer, then it is arguably not hearsay and no exception is needed. It may not be a simple analysis, but the point is to take the analysis in appropriate order. 

Another point that the presenters skipped is the age-old adage that each objection stands on its own. that is, if there are objections to relevance, authenticity, and hearsay then the proponent party needs to effectively address all three. Demonstration that something is not hearsay or that there is a statutory exception allowing the evidence over a hearsay objection, despite it being hearsay, does not mean that the thing is authentic or relevant. The response must meet and overcome all three objections, not merely one. 

This presentation proceeded rapidly to the discussion of authentication. The presenter was quick to remind us that such a hurdle is quickly cleared if that picture of me skiing is shown to me and I admit that it is me, and that the picture is an accurate representation. The problem, instead, is when the witness denies either of those points. Then outside evidence is needed to authenticate that photograph. This can include firsthand witness testimony (if not me, perhaps the person who took the photo, or was at least present when it was taken), extrinsic evidence, or the "silent witness theory." 

The point of these rules is two fold. First, they each establish parameters regarding what will and will not be evidence. Parameters give us predictability and allow us to structure and plan our arguments. Second, as the parties are all part of that process, there is a fulfillment there of our commitment to due process. What will be viewed by the judge or jury in making a decision will be viewed only after all parties are aware of it, and have had an opportunity to both object to it and obtain contrary evidence to rebut it. 

In the extrinsic evidence category, there is the simple example of someone testifying that they were also present when a photo was taken. They would testify that the photo is a true and accurate representation of what occurred (section 90.901). But, that extrinsic evidence in the context of a social media or other internet data might also be someone from the social media company (live or by affidavit) providing testimony that establishes that the photo exists, when it was posted, and by whom (tied to an email address or an internet protocol [IP] address of the person that uploaded it). Simple "screenprints" found on the world wide web are unlikely to be accepted on their own (without substantiating testimony, beyond that of the person taking the screen-shot). 

Proving that the internet media "account" is in someone's name or contains their picture is unlikely to be sufficient. The person that seeks to introduce that evidence will need to either elicit an admission of account ownership or prove it. This often comes down to IT experts and the metadata that is associated with the information on the Internet. 

One tool they use is called "hash values," an examination of numbers that are assigned by computer algorithms in the creation and upload processes. As these are computer-generated, they are seen by many experts as unlikely to be duplicated. In that distinction, much like with DNA, there lies implied credibility of authenticity. Thus, while there is a clear process to follow, it may be expensive and laborious to authenticate and admit Internet evidence. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 546–47 (D. Md. 2007).

An interesting case in which the procedure for obtaining such IP addresses is Doe v. Cahill, 884 A. 2d 451 (DE 2005). The complaining party there obtained the IP addresses from the company that hosted a website upon which comments were made, traced the ownership of the IP address, and from there to the subscriber to whom the IP had been assigned. This lawsuit resulted from Cahill's efforts to make the owner of the IP disclose the identity of that subscriber, "Doe." 

The case is interesting as it describes the Internet as "unique democratizing medium unlike anything that has come before." The Court concluded that "speech over the internet is entitled to First Amendment protection." And, in reversing the trial court that ordered Doe be unveiled, the Court held disclosure of Doe in this setting would effect a "chilling effect on anonymous First Amendment internet speech." Noting the competing interests of discovering the identity and the protection of free speech, the Court enunciated a "summary judgement" standard, meaning that to discover the anonymous poster identity, the plaintiff "must support his defamation claim with facts sufficient to defeat a summary judgment motion." An interesting and instructional read. 

There are a number of courts that have characterized internet postings with "inherent unreliability." Picture Me Press v. CPI Images, ___ F.Supp.2d ___, 2009 WL 2252879 (U.S. Dist. Ct. E.D. OH 2009); Jaime Lynn Marketing v. Clark IV Family Trust, ___ F.Supp.2d ___, 2012 WL 400961 (U.S. Dist. Ct. N.D. IL 2012); There are also a number that have noted that "inherent unreliability" "is not clear." Alfa Corp. v. OAO Alfa Bank, 475 F.Supp.2d. 357 (U.S. Dist. Ct. S.D. NY 2007). Thus, there is discretion with the trial judge and perhaps little predictability for the litigants. The party seeking to introduce such evidence may face a significant challenge. 

The court in Jamie Lynn noted that some sources "such as Wikipedia and others, are often unreliable." However, other courts have noted that "The Internet has become a source of reliable information both for courts and experts." Member Services Inc. v. Se. Mut. Life Ins. Co. of New York, ___ F.Supp.2d ___, 2009 WL 2252879 (U.S. Dist. Ct. N.D. NY 2010). The court noted that "Countless contemporary judicial opinions cite internet sources, and many specifically cite Wikipedia.” It remains curious that a college student citing Wikipedia is likely to suffer grade degradation, but judges pursuing non-record support for their outcomes cite it without apparent concern for accuracy or reliability. 

Some would argue instead that judges should make decisions based upon the record evidence adduced by the parties. This is a due process argument that would be seemingly popular. But the growing reliance on judicial Internet surfing may belie that. If a judge would rely on Wikipedia in their own sleuthing, perhaps a party might have higher expectations of successfully introducing Internet evidence before that judge? That, of course, ignores that judges performing such independent research is shaky ground in the broader context of due process. 

What is certain is that the Internet is not going away, at least in most countries. Therefore, there will continue to be references to, questions about, and evidentiary rulings regarding the Internet and its vast assortment of writings, images, and videos. And, if you cannot find the image, article, or tweet you want, wait a few seconds, more is uploaded every second of every day. I just added this post to the melange.











Tuesday, December 10, 2019

Noisy Workplaces

Coworkers can be a challenge. Some time ago, I penned When it Stinks, addressing the workplace use of aromas. That train of thought returned to me when I read Why office noise bothers some people more than others. The office can be a noisy place. Years ago, I knew a lady that whistled softly on a near constant basis. Whenever anyone mentioned it, she was surprised. It was a long-standing and near-unconscious habit. 

One of her coworkers hated the noise of that whistling. She responded by wearing a set of Nascar headphones (the kind that fans use to block racing noise and to listen to various pit crews' conversations with drivers). Because this employee's hearing was thus dampened, she kept the ringer on her phone at full volume. When that extension rang, people across the office would jump. And, she had a habit of replacing the handset on the phone with a loud, violent slam that was likewise distracting. Essentially, the two employees' habits wore on each other. But, for some reason, others seemed able to ignore them both. 

Why office noise bothers some people more than others describes a growing trend in workplace design, the "open" environment. There is advocacy for group settings, fluid spaces, and less constraint from office walls, cubicles, etc. A million years ago, I was enrolled in a school that had embraced this design, and we had no classrooms. Instead, we were in a large room collectively, but grouped therein into subject matter subdivisions. The students did not move between classes, but the teachers would rotate from group to group. It was distracting and non-conducive to learning. It was antithetical to learning, but someone had sold the idea to the school board, and the effect on the students was deemed irrelevant. 

A similar "group" environment was inhabited in England in 2016. A ridiculously expensive building for research, a "veritable cathedral of science" was opened for scientists. It was a "collaborative, open-plan space." The idea was to promote interaction and productivity. 

But, "for all its lofty aims, ironically, the building fell short in the face of some scientific truths." It turns out that noise can be distracting (who knew?). The article notes that "some of us" find other people's conversation, phones ringing, pen tapping, printers, eating, and more can frustrate our productivity. To some, the noise can be "enraging" even (picture yourself wearing a Nascar headset in the office). 

The authors note that the "open plan" is not new. It dates to 1904. And, since then "the open-plan office has conspired with several other timely creations (electronic and otherwise) to make the modern workplace an aural nightmare." There are a variety of people who notice a variety of noises and find themselves fighting for productivity. It is potentially troublesome in any environment, but the contention is that the "open plan" facilitates frustration with its acoustics. 

The article is careful to remind us that there are a vast array of noises and personalities. It is therefore extraordinarily difficult to predict what noise will affect which person. It notes that phones and whistling are among the "most vexing," along with various body noises such as "coughing, sneezing, and sniffing." As to personalities, some people work better in silence, others better with some background noise. The author notes there is even a popular YouTube of office noise; the implication being some seek this noise. 

Others who desire background turn to music. The article characterizes this as "extremely common." It cites one study supporting that on average workers spend "nearly a third of their working week listening to" music. Some claim it enhances concentration and others merely crave the distraction it provides. Thus, opposite paths to a singular solution. That in itself is both curious and interesting. This may simply be more reinforcement of our human differences. 

We are all different. Through studies, largely apparently subjective and opinion survey-based, researchers have striven to understand how our "who" (we are) influences the "how" (we react). Their conclusion is that all of their test subjects performed better in silence. But, if there is noise, "the more extroverted (test subjects) were, the less they were affected by noise." This may demonstrate that our personality and predilections may contribute to how we personally react to noise in our environment. But note the first conclusion: test subjects all performed better in silence. 

Thus, the more introverted a worker is, the more likely a noisy environment will affect productivity. The more "neurotic they are" the "more affected by background noise." The ultimate conclusion may likely simply be that we are all different. Thus, the "best" environment for creativity and productivity may be different for each of us. And, it is possible that what is "best" may vary as our personal moods do likewise. We may thrive in an "open" environment one day, and crave a quiet office the next. As an aside, it is practical therefore for employers to test prospective employees if they seek to maximize performance in a given setting. 

Scientists have labelled our reaction to noise: "misophonia." They note that research supports "that as many as one in five" in one study "were consistently bothered by specific sounds." It is possible that we each have our own specific triggers. It is also possible that whether the noise of a particular coworker disturbs us might be in part interrelated with whether we otherwise like or respect that coworker. Perhaps we can tolerate noises from those with whom we otherwise enjoy working? 

The author notes a variety of historically significant people who notably exhibited a desire for quiet. They found noise distracting, and were notably creative and productive figures. Therefore, that noise is troublesome to someone is not a determinative of their productivity potential, but a factor that must be addressed personally by each of us to facilitate productivity. 

In the end, the author contends that noise affects us all. Therefore, the "open plan" of our modern world is perceived as "flawed." Despite that, the author concedes that quiet is more important to some than others, and thus an individualized approach for one may be necessary despite an overall effectiveness of an "open plan" for others (perhaps many) who are better equipped to ignore its shortcomings. But, the general conclusion is that organizations should focus on acoustics over aesthetics in planning and building work spaces. Or, they could just issue Nascar headsets to everyone?




Sunday, December 8, 2019

Terrorism or Just Violence?


I found myself at 7:10 Friday morning driving east in light traffic, watching the building westbound traffic I would have to join once I completed my errand. 

I was surprised to see an unmarked, and uncharacteristic model, police vehicle coming west. It was tailgated by an ambulance, both with lights and the usual sirens. These two were in a big hurry, taking to the grass median periodically rather than suffering any pause. My immediate thought was a motor vehicle accident likely would surely have traffic snarled somewhere I would soon drive on my return trip westbound. Not two miles further I saw a Florida Highway Patrol (FHP) SUV also headed east. It was moving as fast as I have ever seen in city traffic. Safety seemed the driver's last concern. I concluded this was likely a very serious accident. 

By 7:30, I was westbound having completed my errand, and turned on a phone app that warns of traffic. It showed nothing out or the ordinary. 

I had driven six miles back west, and started over what is referred to as "the three mile bridge" into Pensacola. I was listening to a nationally syndicated radio show and frankly had quit wondering about those vehicles. The national show paused from entertainment to announce "there has been an incident in one of our markets, we have no details, but we are going to announce it." They proceeded to say there had been an "active shooter" at Pensacola Naval Air Station, several miles further west from the OJCC office, my destination. 

Friday included many updates and conversations. There was a general feeling of dread that surrounded us with repeated visits to various news sites in hopes of an update. Very early, we heard that there were two dead, including the shooter. That grew to three, then to four. There were others shot, but the number was unclear and reports vacillated. The news featured the fact that a weapon had been brought to essentially a "gun free" zone. The military has some of the strictest constraints on weapon possession. 

I spoke Friday morning to a man whose son was on the base. He described his and family's efforts to make contact. These events touch many lives both in the moment, in the location, and elsewhere and later. News reports since have documented many anxious attempts to contact family members in those early moments and throughout the morning. The man I spoke to was fortunate to have received an answer to his call, but got only "I'm O.K., can't talk," and was hung up on. A terse and brief message, but welcome nonetheless.   

By Friday afternoon, There had been interviews broadcast with the mayor of Pensacola, the County Sheriff, our Governor, and others. Among that, one statement stuck with me though I can no longer recall an attribution: (we are) "investigating whether this is terrorism or merely workplace violence." The quote struck me for two reasons. First, workplace "anything" is what we do and workplace violence is a phrase we hear too often. Second, this was the first mention of the word "terrorism" regarding Friday's attack. I think many of us react to that word, its implications, and its weight. 

Friday, there were unofficial (on condition of anonymity) and later more verified reports that the shooter was a foreign national, from Saudi Arabia. The news included references to that country, and explanations of both the logic and extent of military training delivered in the U.S. to foreign nationals, our allies. It appears from those reports that a great many people travel here to receive such training, and that Pensacola is merely one of the various destinations. 

Friday night, I received a text from far away. It detailed that the local high school wrestling team's assistant coach, Ryan Blackwell, is active duty Navy, and suffered wounds Friday. Before going into surgery, Airman Blackwell was concerned about his team/students, and before going into surgery called the team coach to advise "he won’t make this weekend’s wrestling tournament," according to a Facebook post. I would like to think I would maintain such focus and composure if I were shot three times. I see in the contact the recognition that others are affected, though miles away. This coach faced uncertainty and injury, but focused upon those who would be worried about him. 

On Saturday, we learned the first victim name. MSN reported "Joshua Kaleb Watson, 23, a recent graduate of the U.S. Naval Academy" was identified by his family as a victim. They described how he was wounded, and yet managed to reach responding law enforcement to inform them of the shooter's location. Joshua was from Alabama and was training to be a naval aviator. 

Later in the day, the Tampa Times reported that Mohammed Haitham of St. Petersburg was a victim. He came to St. Petersburg after Katrina drove his family from Louisiana. He was 19, a former track star. He had just finished boot camp and was involved in flight school training: "he was looking forward to graduating from the flight school program Dec. 19" according to his mother. Officials told his mother that Mohammed "did try to stop the shooter.”

Sunday morning brought announcement of the names of all three deceased. Fox News described Kaleb and Mohammed, and added the name of "Airman Apprentice Cameron Scott Walters, 21, of Richmond Hill, Ga." Less has as yet been publicized about Cameron. While there is a national impact of this attack, it is noteworthy that these three hail from Alabama, Florida, and Georgia, with a connection to Louisiana. There is much pain in the South this morning.  

I won't waste time discussing the shooter. Details on his life, motivations, and activities are readily available in the press. All that bears mentioning is that he was shot and killed Friday. There are conflicting reports on details, but it appears he was killed by one or both of the two responding Escambia County Deputies that were also wounded Friday. Saturday's news said one of those has been discharged from the hospital already. There have been news reports that at least suggest Navy police were responsible for stopping the shooter. I am grateful both for whomever stopped him and for the many who sped to the scene to both protect and treat.

As mentioned, there is discussion of whether this is workplace violence or terrorism. I would suggest that while such a distinction could be relevant in some contexts, it does not change that three young men are dead and several other people have been wounded. It is notable, also, that these shootings occurred "even though firearms are not permitted at the base" according to Fox News. Shootings seem to often occur in places where guns are not permitted. There is discussion of how the shooter obtained the gun used, as reported by the Pensacola News Journal. There will likely be more on these issues in coming days. 

The fact is that whether workplace violence or terrorism, there is risk in the world today. Unfortunately, tragically, people will get hurt, and some killed. In the present context, the connection to Florida workers' compensation is one of community. Some news reports say the military and local law enforcement have conducted joint training on response to such events. Friday's press conferences reiterated that. It is noteworthy that whoever killed the shooter, two Escambia Sheriff's deputies are among the wounded. Local law enforcement responded to the threat with resolve not perceived in some other tragic instances. 

For that risk of injury and death, there is a safety net of workers' compensation. It is, by all accounts, an imperfect system. Many have complaints about workers' compensation in anecdotal and even systemic perspectives. But, with its flaws, workers' compensation is with us, daily, for those risks. It is insurance, which requires underwriting. That is, mathematicians and actuaries must discern the probability of injury and payments. Based on that, regulators can determine how much a carrier can charge as a premium for assuming that risk. 

But, we learned after September 11, 2001 that predicting or anticipating risk can be quite a task in the realm of terrorism. In this one context, it may be quite relevant whether an particular act is terrorism. Following that 2001 terrorism, Congress stepped in to provide national support and continuity in the event of terrorism. See Congress Adjourns - No TRIA Re-Authorization Yet and Federal Terrorism Backstop Re-authorization Now Seems Certain. This is a legislative methodology to provide consistency and national focus to what may be very local events. It is supportive of companies continuing to provide workers' compensation insurance even in the face of the threat of terrorism that may be more geographically localized. 

Business Insurance reported in October that the U.S. House had moved the proposal to reauthorize TRIA (there have been various names for the bill and its reenactments, but this original designation is a shorthand reference usually employed). More recently, there has been movement in the Senate to re-authorize the Terrorism Risk Insurance Act, according to PropertyCasualty360. The program expires in 2020. As recent events have reminded us, we remain in a world of risk. There will perhaps be instances in which the distinction of workplace violence and terrorism is critical. It is hoped that the Congress will proceed with re-authorizing TRIA before it expires next year. 

For today, however, my thoughts are with those wounded, and the families and friends of the wounded and dead. I am hopeful that they will find peace. I am grateful for those who engaged the shooter and put a stop to his idiocy. I am conscious that there are many whose day Friday was scary and stressful as they strove to reach loved ones. I can only imagine their stress and emotion. I am even more grateful for those members of our community that will undoubtedly strive in coming days to bring solace to all of the victims, families, and friends. In the end, that is our greatest strength, community. Take a minute today to tell someone that you appreciate them. 

RIP Cameron, Kaleb, Mohammed. Speedy recovery to Airman Blackwell, the deputies, and others recovering from wounds or injuries. You are in our thoughts. 



Thursday, December 5, 2019

Make it Work for You

Why do we do what we do? I was in a conversation that included some critique of an (allegedly) annoying marketing campaign. The speaker was annoyed and felt that the ad campaign was obnoxious and unproductive. She questioned the gathering "why do they do that?" There was some agreement and further derision of the effort. I offered a simple answer to the query, however: "because it works." Companies persistently measure marketing efforts. If an ad campaign is not working, the company will spend its money elsewhere. The point of the effort, the campaign, is that it works. I addressed spam email similarly in Because it Works

This came back to me recently when I was reviewing some cases. The subject matter was Expert Medical Advisors (EMA), appointed pursuant to Section 440.13(9), Fla. Stat. Two practices were noted from various appointment efforts. First, there is a practice of filing "notices" instead of "motions" for EMAs, and second there is important information that may be helpful to a party in getting what they want (a resolution) regarding such a desire for EMA appointment regardless of whether "notice" or "motion" is the selected tool.

When a motion is filed, clearly the parties are obligated to communicate with each other. The obvious purpose of rule 60Q6.115(2)("that the movant has personally conferred or has used good-faith efforts to confer with all other parties") is for the parties to attempt to sort their issues prior to any need for judicial intervention. The certification required for motions merely facilitates the judge quickly acclimating to a particular situation. In the motion setting, the filing party is required to enunciate whether opposing parties have any objection to the relief sought.

Certainly in the notice setting, that rule is not technically applicable. However, the party filing a "notice of conflict" is seeking to move their client‘s issue forward. The party is seeking an order appointing an EMA. The District Court of Appeal analyses that excuse the necessity of a motion in this setting relieves the party of the rule obligation to state the opposing party's position. However, making such a statement will nonetheless facilitate the judge's rapid and clear understanding of the nature of the situation. If opposing counsel does not object to the appointment of an EMA, why not so state in the "notice?" Why not facilitate the process of obtaining that order?

If an EMA is to be appointed, the next immediate question becomes who is appropriate for performing that service. Anyone who has practiced in Florida worker’s compensation understands that the published list of expert medical advisers is thin in some specialties and localities. I have been impressed with attorney‘s inclusion of suggestions (which with a statement regarding opposing counsel’s position regarding opposition could very well be stipulations) regarding the appropriate specialty the EMA physician should possess. Something like: "the parties agree the appropriate specialty for the EMA in this case would be an orthopedic surgeon."

However, it is common that lawyers will instead state only the required information, e.g.. “there is a conflict between the opinions of Dr. A and Dr. B.“ In such a minimal statement, there is no edification regarding those physician's specialties, or what other physicians may be involved in the case. Of course, it is possible that either party may lack full knowledge of all physicians who have played a role (a physician may have been consulted as an expert adviser, but not be listed as a witness, nor have any hands-on experience with the patient). But, it would be very productive to at least the identity of those physicians who have evaluated and treated the claimant. 

In any notice of conflict or motion for appointment of an EMA, it would be very handy for the judge of compensation claims to know:

(1) whether the parties are willing to stipulate to the appointment of a particular physician. This is particularly helpful if the available population of certified EMA providers is exceedingly thin, and the parties are able to select a provider that could be certified by stipulation. This may be more of a "consensus IME" pursuant to section 440.13(5)(g), Fla. Stat. and would not even require an order.

(2) The community that is most convenient to the parties (both patient and attorneys, for the purpose of discovery); e.g. "the parties agree that an EMA in __________ . . ." or "the most convenient location for an EMA would be in __________."

(3) if any of the EMA physicians listed by the state are inappropriate for appointment due to their past involvement in the case, or the past involvement of any of the physician‘s partners or associates; e.g. "the EMA list includes Drs. X and Y, who have previously treated claimant (or who are partners with Dr. A) and would therefore be inappropriate to perform the EMA."

(4) whether any of the EMA providers listed would be inappropriate in this case according to the consensus of the parties. For example, in a spine-related case, the parties may well know in their local community that a specific physician on the list is a hand specialist, shoulder specialist, or knee specialist, while that may not be obvious from the EMA list.

This all returns to the analysis in that conversation mentioned in the first paragraph. Why did that company continue with the advertising campaign that so aggravated the individual? Because the advertising campaign worked. In the broader context of practicing law, it is appropriate to follow the rules and to do what the rules require. However, if there are actions beyond the rules that will “work“ and move your clients issues forward, then why not similarly engage those productive practices even though they may not be required or mandated?

If you provide pertinent information, and fulfill your obligation to bring the adjudicator up to speed, you may find that you receive more rapid, cogent, and thoughtful responses. Those likely work to the benefit of everyone involved by expediting the EMA order and by avoiding subsequent reconsideration of appointment following later disclosure of critical information. The suggestions above may decrease the necessity for motion hearings or status conferences. It is practical to anticipate and avoid delay related to a provider her or himself subsequently noting a conflict ("I have previously treated/evaluated the patient"). That disclosure could come weeks after EMA appointment, and that is wasted time. 

In a broader concept of professionalism, there is never harm in more communication between adverse parties. The requirement of 60Q6.115(2) makes it happen in the "motion" context, but it is good in any context. Communication is, at worst, educational and informational. The more we communicate, the better we communicate, the more productive we can be. This is true as between counsel. It is as true when seeking an order: communicate and move your client's issues forward. Not just because the rules require if in motion practice, but because in all contexts it works. That is the best reason to communicate, it works. 



Tuesday, December 3, 2019

Sober as a Judge

Some years ago, I attended an educational program that was centered on professionalism. It is a subject that receives far too little attention in our daily work. The pressures of making the rent or the payroll are ever-present and provide a pressure on most businesses. Finding the time to be introspective and contemplative is never easy in business. 

This particular program was focused in part on labels. It involved components of self-perceptions and group discussion. As I recall it, the speaker started with asking us to write a list of characterizations or attributes that we thought would describe ourselves. A list of adjectives attributable to our subjective self-image. We retained those after writing them. The second portion of the exercise involved us writing adjectives that we thought epitomize our profession. These we passed in. 

The moderator was amazingly skilled at continuing the lecture while simultaneously writing these adjectives on a large flip chart. Skilled not because of the ability to speak and write simultaneously, but because the writing also included skillfully organizing those adjectives into somewhat related categories on the chart for our observation. We then had a collaborative discussion of these aspirational adjectives. We were questioned about their appeal, how we would rank them, which we would eliminate if the list had to be rendered more concise. I learned from the introspection.

The point of that exercise was about arriving at a collective group expression of the attributes that we could agree upon. We eliminated words that our collaboration and discussion convinced us were redundant or repetitive. We discussed what we meant by various adjectives, and as I recall it there were some individually proposed words that we collectively decided should be eliminated in favor of substitutes that we arrived at through our discussion of what we actually meant. It was collaborative, introspective, and informative. 

The exercise came back to me recently as I wrote Conferences and Consequences. But, the thoughts were focused when I discussed that post with a reader. That post is about three drunk judges who found themselves in a physical altercation and shooting at a White Castle hamburger restaurant at 3:00 a.m. one fine May 2019 morning. They found themselves in a world of troubles that all started with a less-than-ladylike display of sign language. The instigating judge admitted in the ensuing investigation that she "drink(s) and get mouthy," and "I’m fiery and I’m feisty." 

As an aside, the very best comment I received on that post came from one of the brightest attorneys I know. He questioned whether this story forever destroys the idiom "sober as a judge." That, in itself, is a troubling indictment of the damage those three inebriated, strip-joint-seeking, White-Castle-eating, judges did to the honor of this profession. But I digress. 

When we think of what epitomizes a good judge, what adjectives would we select? 

In 2007 A Pursuit of Justice published The Qualities of a Good Judge. Adjectives that were used there included: understanding, communicative, calm, courteous, patient, "open-mindedness, tact, courage, punctuality, firmness, understanding, compassion, humility and common sense." The article goes on to mention "forbearance under provocation," sensitivity, intelligence, awareness, courage, integrity, experienced, educated, active, expressive, vigorous, reputable, moral, and discreet (some of these are specifically mentioned in the article and others have been inferred from context). 

The article concludes that judge should be able to "assimilate data outside the candidate’s experience without bias and without undue difficulty or stress." When stress does present, the judge: 
"should be able to handle personal stress without unloading on others; he or she should recognize that the position is not only stressful but an official governmental position of public trust, with its business conducted largely in full view; and that criticism and scrutiny are inherent in the position." 
Sound advice, and an astute reflection on this profession. There will certainly be stress, criticism, and scrutiny. But, despite the breadth of this analysis, I note that the attributes selected by that author simply ignore the "mouthy," "fiery," and "feisty" which Judge Bell used in self-description. Are these three attributes that should be included in epitomizing a good judge? 

Could all judges benefit from a periodic reconsideration of what attributes or adjectives each considers important to this difficult and challenging profession? Might we likewise benefit from careful (re)consideration of our personal attributes and performance? Should we all reflect on what we think is appropriate, and whether we think we are fulfilling the role. Should we consider whether others in the community feel we are doing so?

I think we should. I think it is important to be reflective and introspective every so often. Let's look inward and consider who we are, what the public has the right to expect of us, and whether we are delivering. Let's not be "mouthy," "fiery," "feisty," or even obnoxious drunks. And, if we note our peers in such behavior, let's be the first and most strident to speak out and correct them privately. Let us encourage each other to be what we aspired to be when we sought these challenging and demanding jobs. Let's be proud and describe ourselves accurately with the adjectives listed by A Pursuit of Justice. That requires that we periodically ask ourselves to be introspective and self-critical.


Sunday, December 1, 2019

Severe Addiction Treatment

Addiction and overdose have been with us for years. The volume of Americans dying each year from overdose is simply astounding. There are those who believe that injuries (work and not) lead to prescription opioids, which lead to dependence in some instances, or addiction, and potentially death. They contend that even those whose prescriptions are weaned or discontinued may yet suffer as they turn instead to street drugs for relief of either the injury, or the pain that such substances can themselves inflict when used chronically for sufficient duration. The forms which deliver opium are incredibly diverse. 

Treatment is not a new idea. In the 1960s and 1970s there was a heroin crisis in America. One of the solutions to that crisis was (believe this or not) a prescription for a different opioid, Methadone. One addiction website characterizes the crisis when "heroin abuse moved out of the slums and ghettos to infect the sons and daughters of well-to-do." The implication seemingly being that the cause for concern was influenced by the "who" of the crisis" as much perhaps as the "what." 

Addiction is not a simple subject. As one site explains "addiction is a very complex disease that we’ve only recently begun to understand." It explains that addiction does not fit clearly into either a physical or psychological category. It seems that our difficulty comprehending it, and how to treat it, is in part caused by our prejudices, beliefs, and perhaps misconceptions about the nature of addiction. There is a misconception, they note, that addiction is a character flaw of defect. 

Certainly, how any of us reacts to outside stimulus is personal. We share similarities and commonalities, but we are each somewhat unique nonetheless. Thus, our propensities or personalities may play a role in how we respond to an injury, an insult, or even a substance. What is absolutely certain is that none of us is perfect, infallible, or incorruptible. 

The world of addiction treatment is evolving. Psychotherapy, neuroscience, supportive group involvement, and overdose antidotes are often discussed. There is a great focus on prevention through avoidance. I recently attended a medical conference at which multiple doctors explained the potential for avoiding the instigation of use or misuse by declining to prescribe opioids in a variety of clinical situations. Their is seemingly agreement that addiction can be started innocently through prescription opioids, and that path can be inhibited or limited with careful consideration of opioid prescribing habits. 

But, one of the latest addiction efforts recently made the news in Britain, though its focus is on the efforts in West Virginia. The British Broadcasting Company (BBC) reports that the U.S. Food and Drug Administration (FDA) has given the go-ahead for the use of "brain implants to help reduce their (addicts') cravings." In fact, the first surgical implant has already been deployed. The doctors involved are quick to assure us that this process is remedial in a specific manner, and that it "should not be used for 'augmenting humans.'" There is a fear of integrating humans and technology, whether realistic or not. 

The technology itself is not necessarily new. The BBC notes that "so-called deep brain stimulation" has already received FDA approval for "a range of conditions including Parkinson's disease, epilepsy and obsessive compulsive disorder." Notably, the latter of these is a recognized and "common" mental condition, according to the National Institute of Health. Thus, the prior FDA approvals already included both physical and non-physical maladies. 

To install this device, the physicians drill "a small hole in the skull" and "insert a tiny 1mm electrode in the specific area of the brain. This area, identified on brain scans, "regulate(s) impulses such as addiction and self-control." One of the physicians colloquially refers to this as a "pacemaker for the brain." In a similar fashion, this electrode will deliver a stimulation to the brain. to instigate reaction. In design, it is perhaps not dissimilar to other stimulation treatments, of which there are several

The researchers/physician involved reiterate the recognition that "addiction is complex." They note the "wide range of social dynamics" and "genetic elements" that may influence either addiction of the treatment it requires. They also are quick to caution that this procedure is not a go-to solution, but "is for those who have failed every other treatment." including "medicine, behavioral therapy, (and) social interventions." This blog has cited numerous contentions regarding the volume of overdose deaths in this country, and the evidence is that far to many continue to die

The BBC describes the pandemic of overdose in America. The "main cause of death for under-50s in the U.S." is overdose. And, that is a large problem in West Virginia. That state has the "highest age-adjusted rate of drug overdose deaths involving opioids." Why we bother with distinctions like "age-adjusted" is not clear. In short, there is a serious national problem, it disparately impacts West Virginia, and therefore the effort is underway there to attack addiction directly and innovatively. 

There are ethical concerns regarding the "merging (of) machines and humans. There are companies working on amazing innovations in neuroscience. The BBC notes that some will be inserting brain stimulators for maladies such as paralysis. Another company is working on a machine that converts thought to text at amazing rates up to "100 (words) per minute." A machine interpreting your thoughts. The science fiction value alone is astronomical. There are those who believe we will one day implant computer chips directly into our consciousness. There is fear about the potential

The advocates of stimulator-based addiction treatment reiterate that this is a surgical intervention. Surgery includes "inherent risks" and should not be the first modality engaged in many medical situations. Certainly, following a traumatic physical injury or systemic failure, surgery will be the first response. But, because of the risks, these researchers advocate this addiction treatment as a last resort. But, in time, should these various interventions with our brains bring success, it is possible that such inhibitions might diminish. With success may come a diminishing aversion to what today sounds a bit scary to many. 

The implications and potential impacts of this research are intriguing. Has medical science reached a point of influencing our very thoughts and emotions through mechanical intervention? Could we evolve to a state of consciousness that is significantly influenced, enhanced, or replaced by a computer? Might we view these potentials as rare and human interventions today, only to see them gain acceptance and through ambivalence come to significantly impact our existence? Or, is it all just science fiction? Time will tell. 





Tuesday, November 26, 2019

The Eoyores Walk Among us

In 2017, I penned Negativity and your Inner Pooh. I described the attitudes that we each bring to our community. As I travel this road with you all, I see so many people channeling their inner Pooh. They are kind, generous, unassuming, and generally upbeat. But, I also noted there that the "Eeyores" walk among us also. That thought returned to me recently when I was reading a Bob's Cluttered Desk post on Defending Award Recognition for Injured Workers.

The post focuses upon a blog post written by an attorney, which questioned the efficacy, or point perhaps, of the Comp Laude Awards. In the interest of full disclosure, I have written about the Laude before. See Something New for Comp Laude 2016, Comp Laude Nominations Open, Comp Laude Overview, Community, and Commitment, Comp Laude Nominations, Comp Laude - Michael Made Me Do It!, Some 2018 Comp Laude Honorees, Comp Laude 2018 is Around the Corner, and 2017 Comp Laude Finalists Named. Some might discern a trend.

I have been proud to serve on the Comp Laude Advisory Board since 2016. I have been an attendee, a presenter, and even an honoree. And, there have been times I have been a critic. That is to say, I think criticism is a valid and important tool in our society. When we perceive fault or shortcoming, we should speak of it, engage others on it, and strive to remedy it. We all owe to our community the best efforts to measure and improve it. 

The post discussed by Bob Wilson focuses on the injured worker segment of our community. The author drew distinctions between catastrophic injuries and other workers' compensation injuries. I came away from the post with the perception that the author has concluded that the Comp Laude awards are imperfect. That is fair, we are all imperfect as is all that we create. We strive for better, aspire for perfect, but ours is a journey.

He points out that there are no injured worker honorees in 2019 in the category (essentially) of legislative advocate or agent of change. He also seems to advocate a greater breadth in the award recipients. He advocates that the awards process improve. There are admittedly many worthy workers who bear recognition, but who are fortunately not catastrophically injured. Bob Wilson found some common ground to agree with the post's author. In that vein of "bridge building," so have I. 

The award recipients are not perfect (note, I was a recipient once); not as individuals and not even collectively. There is room for greater geographical, ethnic, racial, gender, and background diversity (there may be other perspectives I forgot to mention, but these are examples). Certainly, there is room for consideration of advocates and non-advocates, union and non-union employees. 

There is room for discussion of the substance of workers' compensation, the potential we each hold to change the conversation about, and community of, workers' compensation. Some of the most admirable injured workers I ever encountered did something to change a workplace, a practice, a law, or a regulation. And, without the catastrophic injury the post mentions. In short, I agree that we can find much to admire in many diverse and different people; if we look. We can do all of this and more by channeling our inner Pooh (kind, generous, unassuming, and generally upbeat). 

Or, we can be Eoyore. We can deride and complain. We can diminish and dismiss. In short, complaining is easy, progress is hard. I went to collage with a many who was famous for walking through project after project always with a "you know what you ought to do . . . ." He always had advice, but never lifted a finger. He was a (self-proclaimed) font of wisdom. Advice is great, but there is so much more to the Pooh side of the equation. 

Let's never hesitate to be critical and thoughtful in our perceptions of this community. I have drafted and submitted many Laude nominations. A significant volume of those were selected as "finalists." Submitting a nomination requires about 5 minutes of your day. If your nomination proceeds to the "finalist" category, then you have to draft a more lengthy explanation of the candidate, obtain a digital picture, and recruit some references. But, in truth, submitting the supporting material for a "finalist" is not more than a 10-15 minute commitment. 

So, if you feel there is not enough diversity in the Laude winners, perhaps that is because there is not enough diversity in the nominees. And, you can make nominations. The field is open. If the winners do not look to you like they are representative, nominate those you feel would be. If you perceive some inclination toward some factor (catastrophic injury), nominate someone who lacks that and explain in your submission why you believe that person or entity has moved this community forward (there are various categories, one is "other"). What has the person or entity done to improve the conversation about workers' compensation? How has our community improved from their presence, attitude, effort, communication, or contribution?

I have drafted well over 1,000 blog posts, and dozens of Comp Laude nominations. In my experience, a Laude nomination takes far less time to draft. Don't complain about what you perceive is, do something to change what you perceive into what you would like.

In short, the story may not today be what you would like. The solution is to change the story. I am hopeful that everyone that reads this post will make one nomination. We must recognize those who inspire us. By making the nomination, you let someone know you value their contribution. I can assure you of one thing (which will likely disappoint the Laude officials): I was more flattered to be nominated than I ever was to be presented the Laude award. That someone thought enough of me to nominate me was one of the highlights of my career. Certainly, I was honored and flattered to be presented the award. But, honestly, my heart soared the day I received notification of the nomination. 

Laude judges cannot control that. You can do that for someone you appreciate, admire, respect, etc. You alone own the decision of nominating someone. You alone can change the conversation of workers' compensation. You alone, similarly, can thus change the Comp Laude itself. Make your nominations! Be the Pooh you can be! "Be the change you wish to see in the" Comp Community. And, this week, as you strive to be thankful, think of all that the Laude have already done to build collegiality and change the conversation about workers' compensation. I am grateful for what it is and what I think it can be.