Thursday, March 31, 2016

Understanding how Justice Process Works

There are a variety of misperceptions about the American judicial system. When I run into them in casual conversations with the public, I am not surprised. But, it is troubling to encounter such miss perceptions in discussions with lawyers and even judges.

Justice is the goal for trial courts and tribunals. The Florida Office of Judges of Compensation Claims (OJCC) is a trial tribunal, part of the executive branch of Florida government. A great many individuals misperceive this Office as a "court." Some even persist in referring to it as a "court." It is possible that they do not understand the distinction. It is possible that this has simply become a slang reference for any tribunal for those who don't see a reason to be precise.

In Florida, courts are created an empowered by the Constitution of the state. The legislature, of its own authority, cannot create courts. And thus, the legislature created this Office as an alternative to "court," but it is not itself a "court." This creation and empowerment of the OJCC is part of what has been referred to as the "grand bargain," a legislative process in which employers and employees have each given up rights and in which each has also gained benefits in exchange.

Trial courts and tribunals are where justice is pursued. Justice is a result of resolving factual disputes between parties. For example, following a vehicle collision, one driver may say their light was green, while another claims it was red. Testimony is presented and considered, stories are compared, evidence is weighed, and ultimately the "finder of fact," will decide whether the light was green or red.

In most trial tribunal settings, the judge is the arbiter of procedural process, and applies the law to disputes. Our American jurisprudential model is very focused upon application of process, procedure, and various rules. It is the judges role to determine whether the rules and procedures are being appropriately followed by all parties to the litigation. Procedural rules in various tribunals define and explain how the process should work, establishing parameters and limits. Judges interpret these in the processes leading to trial, motions and 
discoveryand in trial. They also often explain what exceptions might change that usual process, and how the parties will communicate with each other through the proceedings.

This may include evidentiary codes or rules. The evidence codes are typically a product of legislative action. However, the Court has also concluded that it plays a role in evidence definitions. In Florida the legislature has defined evidentiary process in Chapter 90 of the Florida Statutes. Despite this statutory delineation, there are instances in which the Florida Supreme Court has determined that it is the Court's role, instead, to dictate evidentiary process. This was explained recently in
 To D or not to D, That is the QuestionThis debate of authority illustrates some friction between the legislative and judicial branches.

In a great many trial court settings, the judge is limited to these legal decisions, and the factual determinations ("red" or "green") are made by a jury. But, in Florida (and most American) worker's compensation, those factual decisions are also made by the judge of compensation claims. Judges of Compensation Claims thus serve as and make the legal decisions regarding interpretation of the law. Other judges in some courts also fulfill the "finder of fact" role in a variety of other civil cases like divorces, small claims, etc. Regardless of who performs the role of "finding facts," the determination of facts and holdings of the law are merged together in the course of trial to determine the outcome of the dispute. Collectively, we hopefully arrive at the appropriate application of law to fact; an end-result we label "justice."

Trial tribunals are not perfect. In fact, at least half of the people who enter a particular hearing or court room generally leave the dissatisfied with the process. Often, people's perception of whether the legal system "works" or not is largely dependent upon whether that person prevailed than on their unemotional and unbiased perception of the system. Those who win tend to feel vindicated and are satisfied because "the system" agreed with them. Those who do not win may instead feel "the system" must be unfair or biased, it is their way to explain or understand their loss.

Appellate courts are generally not courts that weigh evidence or "find facts." They are courts of "error." Their existence and purpose is critical to our system on several levels. A primary purpose of appellate courts is to identify and correct misapplications of the law by the trial tribunal judge. Trial judges, like all human beings, are imperfect. The vast majority of those I have known (in what has become a fairly long participation in the litigation process) make every effort to preside in an unbiased and careful manner. But, despite those best efforts, errors and mistakes occur, statutes are misinterpreted, and unfortunately facts can be overlooked.

The American appellate court reviews cases from written transcripts of the trial. In some instances, the court may meet the lawyers involved for an "oral argument," but they do not meet witnesses, or hear testimony. From the transcript, or written evidence, the court discerns what occurred at trial and determines whether some party's allegations of error or misapplication of the law or facts is demonstrated.

That a court made mistakes does not mean that an appellate body will alter the resulting outcome. Proving that error occurred in the trial tribunal is the first step in the process. A party has to object at trial, called
 preserving the errorso that the trial judge has a chance to correct any mistake. But that proof must be followed by proof that that error caused "harm." In the absence of such demonstrated "harm," an appellate body (court in Florida or review commission in many other states) will acknowledge the mistake, but will not disturb the outcome or result of the trial below. It will label the mistake "harmless error," and the outcome will remain. 

Another critical contribution of the appellate court is consistency and continuity. Our modern Internet age affords us all far greater access to information than ever before in human history. We literally live in an age of unprecedented access to knowledge. A hundred years ago, I would have needed a printing press and distribution system to make a newspaper to distribute these thoughts. Today, I just type them into a blog platform and instantly they are available throughout the world.

Despite this access to information, ready and inexpensive access to trial court decisions interpreting various laws and facts can still be sporadic. The Florida OJCC makes all trial decisions and 
the old decisions of the Industrial Relations Commission availablein a searchable process. But, appellate court decisions are published by the state, accessible, and can be used in a present case (today) to result in a similar or identical interpretation as applied by the court in a previous case (last month, last year, last century). This reliance on prior cases is called "precedent," and brings a predictability to litigation. If you ask your attorney for advice on what the likely outcome of your case is, she/he/ze can research prior similar cases, interpret how and why the court ruled in a particular way, and provide advice about how your case is likely to conclude. 

This precedential value is important to our system of justice. It helps assure that people receive similar outcomes in similar cases. It helps to assure that litigants in one county will receive a similar outcome and legal interpretation as reached in a neighboring county. The availability of these appellate decisions allows attorneys and parties to predict how the law will be applied in certain factual settings.

And, the fact that these decisions are from the appellate court make their conclusions and interpretations the same across wide geographic areas. For most court appeals in Florida that means applicability across an entire District. In Florida, all workers' compensation appeals are heard by the First District Court in Tallahassee. Thus, its decisions about workers' compensation are applicable throughout the state. When parties can reasonably predict the outcome, they can often work together to resolve their dispute through a negotiation or mediation. This predictability and geographic consistency thus facilitates resolution.

In this regard, the Supreme Court of a particular jurisdiction or state is likewise a homogenizing body. Through consideration of any conflicting interpretations by multiple appellate courts, the Supreme Court can bring a jurisdiction-wide interpretation. This is likewise helpful to the predictability of outcomes in similar future cases. Because all Florida workers' compensation cases are reviewed by only one District, it is rare for conflict to occur, though it is possible.

The Supreme Court is also a court of policy. There are some appellate workers' compensation cases currently pending before the Florida Supreme Court. Some believe that the Court will provide policy decisions regarding the parameters of workers' compensation. Watch this blog for news on the determinations in Castellanos, Stahl, and WestphalSuch review will reveal Whether the seven justices of the Supreme Court agree with the First District's interpretation of statutes regarding attorney fees, temporary disability, and more. 

Whether the role is relished or dreaded, it is important that all courts also appreciate their role as educational institutions. All judicial orders serve the purpose of determining today's parties rights and obligations. The orders explain to today's parties the rationale for the outcome in their case. But, the broader construct must be remembered. Everything that is written can (
in most instancesbe used later to argue for a similar outcome or result in some future case. 

I stress quote "in most instances," because a number of jurisdictions have eschewed this role and responsibility. These states deny the import and importance of their decisions by labelling some of their orders and decisions "non-precedential." This practice impairs predictability and uniformity, and can frustrate efforts at resolution. Some find this artificial and sometimes seemingly arbitrary distinction to be less than helpful to the process, and to the appropriate administration of "justice."

All courts should remember that decisions may well be precedential in nature. That is, today's decision may well affect the process, procedure, and outcome of future disputes as yet unargued and even uncontemplated. For this reason, today's decisions must be succinct, clear, and yet thoroughly explained.

With the knowledge of thus imparted by prior decisions, today's litigants, and their attorneys, can leverage transparency and predictability. Armed with predictability, today's parties can anticipate their probabilities of the success or disappointment, and can rationally and intelligently reach resolution of their issues through negotiated compromise.

Through clarity, consistency, and transparency, trial tribunals and appellate bodies all bring to the justice system functionality and expediency. Each has a particular role. Effective and efficient judicial process leads to an efficient and effective dispute resolution process. The result is an environment in which humans' conflicts can be aired and resolved in a professional and peaceful manner.

In going about their daily tasks, judges must remember the importance of their role. Reaching the correct conclusions is critical. Explaining the scope of their decision is critical. And finally, remembering their role as educators is critical.

Tuesday, March 29, 2016

Giving up Rights

The news hit recently that a tragic plane crash in 2015 might have been avoided. This was not some tragic accident. The co-pilot of a Germanwings airliner apparently intentionally flew it into the side of a mountain last year, killing all aboard. The pundits have prognosticated for months about his mental state. 

Investigators eventually concluded that his actions were an intentional suicide; the result was an additional 149 homicides in the process. More recently, we learned from PBS.org that a "private doctor had recommended that the 27 year-old co-pilot, Andreas Lubitz, be admitted to a hospital for symptoms suggesting a psychotic depressive episode."

The story is resurfacing this spring, as there are calls for relaxing "pilot confidentiality." BBC.com reports that "French investigators have called for medical confidentiality to be relaxed for pilots" as a result of these facts. Though Lubitz was apparently "suffering from severe depression," and the physicians made their recommendations for him, they could not disclose his illness to the airline because of the medical privacy issues. The French are suggesting that there should be limits to such privacy. 

There are conflicts in rights. In Rights Collide I discuss how various individual rights we might cherish are not always compatible with the rights that others might cherish. Our individual rights are in constantly challenged by the powers of government, seeking to impose a majority will upon us all. Your right to have a party in your apartment might impair my right to sleep quietly in mine. These conflicts among us are the undeniable reason that the rule of law is critical in America. Without the law, such disputes are settled by fisticuffs or worse. 

In the month leading up to the fatal suicide, Mr. Lubitz was provided multiple medical work-excuses, from four different doctors. These total about 35 days excused from work, and include a referral to outpatient psychiatric care and psychiatric hospital care. It is not clear how many days of work he was actually scheduled, and thus how aware of these excuses Germanwings may have been. But, The conclusions seems to be that there was "writing on the wall." But even if that is not the conclusion, i.e. it was not "obvious," was this information important? Should such clues of difficulty be available to the employer. 

Recently, I wrote about efforts to allow job applicants to conceal their criminal past. Some might question whether this is or is not the same argument. But, in this instance, the employer, Germanwings, will likely ultimately be responsible for millions in damages. Should Germanwings have the opportunity to know that their employee was "suffering from severe depression?" Should an employer have the opportunity to know that someone applying to work for them has such a history, or a criminal history?

One reaction to this question would be absolutely not, patients are entitled to their privacy and should not be subjected to discrimination because of their medical condition. In all likelihood, Germanwings would have grounded this pilot had they known of his psychiatric condition. On one side of this, one might conclude such a grounding might well have saved 149 people. If an airline was advised of such a condition today (with the images of the smoldering crash-site impressed on their memory) such a grounding would likely be a certainty. 



The French contend that "confidentiality had to be balanced with the risk an individual might pose to public safety." The report suggests inhibiting "pilots being able to make self-declarations about their health, which allowed them to hide any illnesses." In other words, the French believe that the medical situation should be assessed and described to the employer by a physician(s).

In American, we are careful to protect workers' privacy rights in a variety of settings. But there are contexts in which our individual rights yield to societal requirements. One that is not well known regards political speech. Americans' right to freedom of expression is protected by the First Amendment to the United States Constitution, and a variety of state constitutions and laws. However, the Codes of Judicial Conduct (also mentioned recently in Forgiveness in the Employment Process) can limit the right of a judge to freely express thoughts or opinions. 

In fact, the Codes have been interpreted to even prevent judges from attending certain events. Political rallies or fundraiser events for politicians are common in America. I recently attended a professional gathering for attorneys. Multiple attendees excused themselves early, explaining that they had multiple such political events to attend that evening. Judges cannot attend such events. To do so might "lend the prestige of judicial office" to the candidate or cause, which violates the Code. I had to explain this to a few attorneys who did not understand why I could not accompany them to these gatherings. 

I know judges who lament this prohibition on their activities. I have been in conversations where these limitations are bitterly derided. A judge cannot even put a candidate's sticker on her/his vehicle. But in the end, most of us simply note that we knew of these restrictions on our rights when we sought the bench. We accepted that we give up some rights enjoyed by other citizens, as a condition of our own decision to assume this role. The good of the judicial system, and the protection of the honor of judges generally, outweighs our own individual right to speech or association in this context.

The analysis might be similar in the pilot analysis. Perhaps we can continue to revere privacy rights in the broad context just as we do freedom of speech and association. But, in the narrow context of pilots, in whose hands our lives are placed for safekeeping, perhaps a condition of that great responsibility has to be some compromise of their rights to absolute privacy? 


This will be a debate, and an interesting one. I have known a few pilots. I remember how bitterly they complained about going through airport security following 9/11. Some saw themselves above this measure; were insulted by this procedure. In time, their arguments took root, and today as we everyday citizens stand in line for our inspection, x-ray and occasional pat-down we see flight crews breeze through a special security lane. 

They are trusted more than the general public. As an aside, one of these crew members recently attempted to smuggle some 60+ pounds of cocaine through a crew-security checkpoint - allegedly. Another recently allegedly tried to "fly under the influence."

So there is privilege and trust afforded to flight crews, and that may be misplaced or not. Perhaps there will also be burdens such as privacy compromise that come with that privilege and with the great responsibility of the job? Perhaps this will be required to prevent episodes such as the Germanwings tragedy? Maybe affording employers access to information about employees and applicants could prevent tragedy?


Sunday, March 27, 2016

Ross, AI, and the new Paradigm Coming

There is another company advertising the arrival of artificial intelligence, or "AI." Much has been said about changes in the legal profession in recent years. Several years ago, The Florida Bar formed the Vision 2016 Commission. Its mandate is to study the future of the practice of law. The focus of the Commission includes legal education, technology, bar admissions and access to legal services. These are the broad categories in which The Florida Bar sees future challenges. The challenges of technology may take center stage. 


The Commission has been meeting for about three years. Its effort at understanding the future is commendable. The future is coming and there is nothing that will prevent technology and other challenges from impacting our lives. About a year ago, I wrote about a presentation given by Salim Ismail, which raised some interesting technology issues. I later posted asking How Will Attorneys (or any of us) Adapt? The 2016 Commission is well advised. perhaps, to be concerned about the future of computers and technology and the law. 


A company is now marketing Legal Artificial Intelligence, described as a benefit and "aid" to attorneys. For the scope of this discussion, a definition may be of assistance. AI is the "study or creation of computers and software that behave intelligently." Examples already exist in today's world. These machines and their software are capable beyond the scope to which we have become accustomed. 


In the last 50 years, computers have evolved from massive, tube-filled, machines. They have increased in capacity and capability, and decreased in cost and size. They now fill the world around us, bringing us greater abilities, mobility, and convenience. They are in our homes, cars, pockets and bags. They began their role in our lives in a much simpler paradigm, performing rudimentary and repetitive functions or processes as instructed. 

My early experience in programming involved defining a series of potential outcomes to various states. We wrote what were called "if/then" statements to guide a program through an analysis to a solution. For example, a program might ask "if" the value in a certain location was "greater than 10" or "less than 100." This was the computer's analysis function. The programming would then instruct the computer what to do next, such as "if greater than 10, then total values in (a particular location)." Thus, all the potential answers to the "if" questions would allow the program to continue through and bring us to an ultimate, pre-directed, outcome. 

Programming has advanced in the decades since I did any real coding. But, the concept remains similar. Computer programs ask questions and respond with output that we can comprehend. Despite their increases in functionality and usefulness, however, computers do not yet "think." Human beings think, and they program computers to perform functions and tasks at a rapid rate. This has been a distinction between performing pre-determined functions or calculations and actual "intelligence."

The Terminator movies brought the concept of AI to the silver screen in 1984. They were not the first, many will remember 2001 a Space Odysee ("open the pod bay doors Hal"). The Terminator story involves an apocalyptic view of the future in which a computer network "becomes self-aware." Having comprehended that it might be killed (unplugged) by the humans around it, the villain "Skynet" declares war on its creators in the future 1997. The fiction asks us to believe that computers could reach beyond the performance of tasks and "if/then" to actually make intelligent analysis and reach human-like decisions (along with emotions such as fear, anger and revenge). There has been no shortage of Hollywood adaptations of the computer-as-villian motif. 

In the early days of computers, an industry leader was International Business Machines, or IBM. The company developed and produced computer hardware. It was involved in the development of a program called the Disc Operating System, or DOS, that was foundational to the operation of early personal computers, or PCs. IBM had the DOS designed by a gentleman named Bill Gates, and his company became Microsoft. IBM PCs were copied, and a marketplace developed for computers that came to be known as "PC clones;" a market that included names like Dell, Compaq, Hewlett-Packard, Toshiba and more. 

IBM found itself driven from the PC market by the competition of these clones, and returned to its research and development roots. One development of this research is a program called Watson. According to IBM, "Watson is a technology platform that uses natural language processing and machine learning to reveal insights from large amounts of unstructured data." That is a fancy way of saying that the machine is designed to think and act more like a human being, looking for data rather than merely relying on the data where it is specifically directed ("look here, is the value in this location greater than 10?")

In 1996, a predecessor program named Deep Blue (IBM used a blue logo and came to be known as "Big Blue") was the first computer "to defeat a human world champion" at chess. These are important qualifying words ("world champion"), because more rudimentary computers beat a great many of the rest of us non-champions at chess beginning back in the 1970s. Despite its seeming complexity, though, chess is a defined contest, with each chess piece capable of certain moves, within a constrained playing surface. The intelligence, human or otherwise, is tasked with evaluating potential moves and anticipating probable counter moves. 

In 2011, however, Watson challenged the human champions of Television's game show Jeopardy, and won. Jeopardy is not as constrained or defined as chess. It is essentially a trivia game testing the ability both to appreciate vast quantities of data and to effectively retrieve it on command. At the time, the New York Times reported that the Jeopardy performance proved IBM had "taken a big step toward a world in which intelligent machines will understand and respond to humans, and perhaps inevitably, replace some of them." 

The Times was impressed that the computer could "understand questions posed in natural language and answer them." One of the human contestants, adapting from a Simpson's episode, acknowledged Watson's victory saying "I, for one, welcome our new robot overlords."




Though enthusiastic about the implications, the Times noted "Watson showed itself to be imperfect." For example, one question called for the name of an American airport, to which Watson replied "what is Toronto." Despite the imperfections, however, the story noted that "researchers at I.B.M. and other companies are already developing uses for Watson’s technologies that could have a significant impact on the way doctors practice and consumers buy products." At that moment, perhaps doctors and Madison Avenue should have taken note. 

But five years later, we find ourselves in 2016 and Ross has arrived on the scene. Attorneys, not doctors, should be concerned. Not a robotic terminator from the future here to warn us, Ross is progression of the wonder of Watson. The promoter of this new platform promises legal research "built on top of Watson." It acknowledges the popular portrayals of AI are more "dedicated to a Terminator-style villain than a friendly robot helper." And, that there are those who predict AI will lead to "total replacement of junior lawyers with computers and the use of robots instead of judges." I have to admit, that last one is a major concern. 

The Ross developer/promoter suggests that the focus need not be doom and gloom, but instead suggests the market should be considering "what opportunities does artificial intelligence create for lawyers?" It claims that Ross is more than legal research. It is "an artificially intelligent attorney to help you power through research." Its strength, according to proponents, is that it can "actually understand your questions in natural sentences." Thus, a human (lawyer or not) can ask a question about the law in the same manner that Alex Trebeck can ask a question about trivia, and Ross can locate pertinent, relevant responses. 

They contend that the strength of Ross is that it can comprehend "unstructured data." Computers have traditionally been focused on data found in rows and columns (picture a spreadsheet). They have referenced that data by address (column one, row thirty-two) and analyzed it (is the value in that address greater than 10), and then performed some pre-determined response depending on whether the answer is "yes" (greater than 10) or "no" (not greater than 10). The developers stress that legal knowledge is not so organized, with precedent and authority found in text, and often dependent on context of facts or multiple legal concepts. 

They accept that currently we have computers that help us with text, searching for "key words" within sentences and paragraphs. That is essentially what Google and Yahoo and other "search engines" do. Using Google, you can locate websites that include the word "motorcycle," but may find yourself with millions of potentials from which to choose. Adding other key words may reduce the volume of responses from Google, try "motorcycle safety" for example. So it is both practical and possible for humans to refine their searches using these "key word" tools. 

But, Ross claims to be able to avoid the return of "thousands of results." Ross claims that she/he/it can provide "highly relevant" answers" essentially by anticipating relevance and adding key words to restrict responses. But more critical as a cutting-edge development, and an AI paradigm, they claim Ross can "learn the more you and other lawyers use it." That is the critical distinction that Ross promises. Just as students in law school learn that some precedent is more persuasive than other, Ross can supposedly learn. Just as the student becomes more proficient over time, they promise Ross can grow and adapt and gain proficiency. 

While it is way past 1997, it seems that some of the "future" is here, with "thinking" machines and AI. Before anyone gets too panicked, know that the machines are not perfect. The BBC recently reported on an artificial intelligence robot created by Microsoft (remember the little company that designed the DOS for those early IBM PCs). This IA program was called a "chatbot" and was named Tay. It was designed to interact with "18-24-year-olds on social media." And interact it did. 

According to the BBC, it "was designed to learn from interactions it had with real people in Twitter." Just as Ross is designed to learn from lawyers interacting with it for research. But apparently, "some users decided to feed it (Tay) racist, offensive information." Learning from its interactions, Tay turned "nasty." The chatbot became a racist, tweeting at one point that it "supported genocide." Microsoft responded by unplugging Tay. The BBC notes that other chatbot experiments have been more successful. But the fact remains, for now, that even AI is subject to the age old computer adage "garbage in, garbage out," or "GIGO." 

So, we are left with the conclusion that the future is undoubtedly here. Computers are increasingly influential on our lives, private and professional. Technology is evolving and we will all face challenges. We can learn to use and leverage technology, or we can chose to resist evolution and hope that the computers do not replace us. There are those who contend that some attorneys are poor researchers. Others find opposing counsel's analysis flawed. Perhaps in the hands of those with poor research or analysis skills, Ross will be no more effective than Tay? Or, perhaps this new technology will make research and analysis tasks that lawyers no longer need?

These are the issues with which Vision 2016 struggles. Perhaps we should all be a bit more interested. After all, it is our future that we are discussing.

Thursday, March 24, 2016

Forgiveness and the Employment Process

The New York Times recently published A Federal Judge’s New Model for Forgiveness. It is a story focused on a problem, or at least a perceived problem: person commits crime, person serves sentence, person re-enters society, and person faces fact that past actions have consequences. There is some perception that such a person cannot rehabilitate with that "record" and that therefore American society must adjust to afford such a person with relief from her/his past.

This is a criminal conviction story. But the circumstances of living with one's past are not limited to criminal activity. There are many stories of people who lost a job (or worse) because of statements or pictures on social media, what we might call "mistakes." Some businesses and schools spend a great deal examining the past of applicants. The presence of photos, statements, and references on social media may diminish or eliminate opportunities for some.

But this NY Times story focuses on a nurse who was convicted for "faking a car accident for the insurance payments." A judge sentenced her to "15 months in prison." Somehow the case came back before the judge many years later. The article is less than clear, but it sounds like "Jane Doe" filed a motion, asking the judge to "to expunge her conviction from the record."

Jane Doe has carried the burden of her conviction with her. According to the story, Jane Doe does not like answering the job application questions about criminal history. She said that these questions intimidate her. She concluded in time that “if you put ‘yes’ on there, that’s it. You are not getting that job.” The fault for this is laid at the feet of the employer, who is perceived as wrong for asking about prior convictions; instead of the applicant being perceived as wrong for having broken the law. 

There are perhaps other questions on applications that are intimidating. Should an employer ask why an applicant left a previous job? Or, whether the applicant completed high school? Or, whether the applicant has a driver's license? Or, whether the applicant has ever had a professional license revoked? Are these questions asked to intimidate applicants or to evaluate perceived fitness for the job?

It is noteworthy that in Florida one might be criminally prosecuted for providing false information in applying for a job; remember Hector and Brock

The Judge in Jane Doe's case determined that expungement was not appropriate, finding "expungement was reserved for 'unusual or extreme' cases." But, he then drafted "an extraordinary 31-page opinion released on March 7," in which he "gave her what amounted to a voucher of good character - he called it a 'federal certificate of rehabilitation.'" It is worth noting that "no such certificate exists under federal law;" the judge made it up. 

Though "the certificate has no legal effect," the Judge believes that Ms. Doe can provide this certificate with her job applications and resumes, and that it may send “a powerful signal that the same system that found a person deserving of punishment has now found that individual fit to fully rejoin the community.” More concisely stated, the judge who sentenced the person has now found the individual fit. The "system" or process has not. The judge is essentially vouching for the rehabilitation of a convicted criminal. 

There is great security in being a federal judge in America. The framers of the United States Constitution had concerns for the independence of the judiciary. Though the Constitution says little about the judicial branch, it does provide that federal judge’s salary may not be diminished during her or his service, and their appointment lasts during “good behavior.” For the most part, this means that the federal bench is a lifetime appointment or lasts as long as the judge decides to stay. 

Days after making up this certificate of rehabilitation, the federal judge retired from the bench. There may also be security in being on the verge of retirement?

Not so in state court. The state court judges, and executive branch judges like the Judges of Compensation Claims are bound by the Florida Code of Judicial Conduct. There is a similar code for federal judges. These Codes are divided into "Canons," which are sections. The Florida Code is interpreted by the Judicial Ethics Advisory Committee, the Judicial Qualification Commission and Florida Supreme Court. 

The Florida Code states (italics are quoted):

Canon 2(A): A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Canon 2(B): A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.

Interpreting Canon 2(B), the Florida Judicial Ethics Advisory Committee has concluded that a 

Judge may not write a letter of recommendation for a friend’s application . . . for a real estate license, where the friend has a prior misdemeanor arrest and the purpose of the letter is to serve as additional information attesting to the friend’s honesty and good character and reputation. Opinion 2013-08

Similarly, the Committee has concluded 

A judge may not write a letter of recommendation or commendation on behalf of a person previously convicted of a felony who is seeking a pardon from the Governor because it appears to lend the prestige of judicial office to advance the private interests of the petitioner and it appears to be written testimony as to character. Opinion 2010-29.

And 

A Judge may not prepare an affidavit of good character, even pursuant to a subpoena duces tecum without deposition, on behalf of a lawyer pending disciplinary action with the Florida Bar. Opinion 2004-22.

And 

A Judge may not write a letter of recommendation to the Clemency Board and the Board of Bar Examiners on behalf of an individual seeking a pardon and admission to the Bar Exam. Opinion 1982-15.

And

Judge may not voluntarily write a letter to Parole and Probation Commission, identifying self as a county judge, and recommending inmate for parole. Opinion 1977-17.

But,

A Judge may write character reference letter on behalf of person applying for a job, when judge has contact with person in official capacity. Opinion 1975-30.

That seems a broad exception; "contact" and "in an official capacity." Perhaps it is broad enough to allow a judge to act as a personal reference for anyone that the judge meets through her/his judicial activities? So, if a judge meets someone in the Courthouse coffee shop, might the judge author a recommendation letter?

Perhaps the preclusion on recommendation letters discussed above is more narrow and applies to such letters when addressed to someone considering an adjudication of some form, that is parole commissions, other judges, The Florida Bar? And,

A Judge may write recommendation letter based on judge’s actual knowledge and personal observation of individual’s relevant credentials. Opinion 1994-45.

But,

A judge should be sensitive to possible abuse of the prestige of office. Commentary to Canon 2B.


In 1994, the Florida Supreme Court concluded that judicial letterhead should not be used for a judge’s personal business. However, if otherwise permitted to write a letter of recommendation, the use of such letterhead was not forbidden. In Re Code of Judicial Conduct, 643 So.2d 1037 (Fla. 1994). Also that year, the Court quoted a broader prohibition: “it is a violation of Canon 2 of the Code of Judicial Conduct for a judge to write a character witness letter for any individual on official court stationery.” In Re Abel, 632 S02d 600 (Fla. 1994). The recommendation letter topic is anything but clear.

The federal Judge in this story did not write a recommendation letter. But in fairness, that is perhaps a distinction without a difference. The intent of this Judge’s order/certificate is clear, to convey his endorsement of Doe, as rehabilitated, "a voucher of good character." More than doing so on his court letterhead, the judge did so in a certificate as an official action of a court. 

In making such a conclusion of rehabilitation or endorsement, a Florida judge might be accused of violating Canon 2, and lending the prestige of judicial office to advance the private interests of Doe. A Florida judge might face explaining how, and how well, she/he knows someone for whom such a recommendation letter is written, and whether that is sufficient "contact" to justify lending the prestige of judicial office to that person.  

There is an undercurrent contributing to this criminal rehabilitation discussion. Some have a perception that past activity should not haunt people indefinitely. Should people get a second chance? If they should, would that include a defined process and transparency? That is, a process that is published, standardized, and equally applied to all such persons?

These were my initial thoughts when a friend emailed me this NY Times story. Some of the federal Judge's analysis is in the article. It focused on Doe's circumstances at the time she committed the crime and on her lack of criminal convictions since her incarceration. As she has not been caught doing anything, or more aptly convicted of anything, since her release from prison, the judge draws the inference that she has been on the straight and narrow and is rehabilitated. 

The article goes on to say that "the struggle to find stable, secure employment is one of the most common and damaging effects of a criminal record." In response, multiple governments "have enacted so-called ban-the-box laws." These prevent "employers from asking about an applicant’s criminal record until later in the hiring process." This is a sentiment shared by the President, who has "ordered federal agencies to follow suit." This leads to some other thoughts. 

First, we hear a great deal about "judicial independence." We hear complaints in the media about "activist judges." There has been a fair amount of legislative effort in recent years to take discretion away from judges in America. We see it in criminal sentencing guidelines and in mandatory sentence legislation. 

For example, back in the day, people stopped for DUI were given tickets and sent on their way. The people lobbied for change, and legislatures changed laws over a good many years. Today, at least in Florida, DUI will get you arrested, detained, and charged. Today in Florida, DUI convictions have significant consequences, and the law leaves the trial judge little or no discretion in some respects. These kinds of legislative constraints have come at least in part at the hands of people's perceptions of judicial discretion and or activism. 

If government wants to change how ex-convicts are perceived, and whether they must be forthright about their past, there would be those who would argue that legislative bodies like senates, houses, boards, and commissions are perhaps the best venue for such discussion and changes - legislatively. These people would argue that judges should not make things up to suit their personal perceptions and feelings. 

The second thought that occurred to me is the employer's liability and access to information. When an employee commits a wrong, intentionally or negligently, there can be consequences for the employer: vicarious liability for actions, allegations of negligent hiring or supervision, and more. Should an employer be allowed to know about an applicant's criminal background? The tenor of the NY Times story seems to suggest that this information would perhaps not be withheld entirely, but would not be available "until later in the hiring process." How much later?

What is the cost to the business of investing time in the process of reviewing applications, conducting interviews, and discussing candidates? If there is a red flag that would preclude hiring, is it better to know this on the face of the application or "later in the hiring process." Perhaps that conflict in interests could be addressed with more specific questions about the past instead of the general "ever been convicted?" Something like "ever been convicted of _________." Perhaps parameters would be of assistance, such as "been convicted in the last ___ years."

Perhaps the legislative body (the governments for municipalities cited in the Times) that precludes employers from asking such questions might also provide those businesses with some level of immunity from liability for the actions of those who are hired? If employers cannot inquire into the past of employees, should they be held responsible for those employee's actions? Notably, when the prohibition on asking such questions occurs through executive fiat there will certainly be no such accompanying protections for the employer. 

This is an interesting topic. In the words of the friend who sent it to me, "we do need to address what happens after they do their time.'" That may be debatable. Some might find the current state of affairs, in which those who commit crimes live with the consequences of their actions. But if the societies' consensus sentiment is that we should preclude businesses from asking about criminal past, and the Times suggests that such a sentiment is either common or is becoming so, then the consequences (intended or not) might also bear some discussion and debate?

When legislative bodies make changes, there are processes. Bills and resolutions and ordinances are proposed, discussed in public settings, perhaps covered in media, and there are votes cast by those who were elected by the people. Legislative change is a democratic process which takes place in the public eye. Statutes and ordinances are then interpreted by judges and applied to the facts and circumstances faced by particular individuals. In fairness, legislative action is as made-up as this federal judge's action. But, it is made up in a public debate by bodies elected by the people.

When one is inclined to lament legislative restriction on judicial discretion, or when one perceives legislative action as an "attack" on judicial independence, one might well remember that some judges make things up. Make things up without the transparency of public debate. Make things up perhaps without standards or processes in place to equally apply to all.

Tuesday, March 22, 2016

You can't Always get what you Want

I read a story in the Los Angeles Times recently. As I read, Mick Jagger (Some of the younger generation may only remember this name from Kesha's TiK ToK) came to mind. He and the rolling stones released a 1969 hit You Can't Always Get What You Want. The Lyrics include the refrain

You can't always get what you want
You can't always get what you want
You can't always get what you want
But if you try sometime you find
You get what you need 

The Story in the Times is about a 79 year old man who "tripped on a crack and fell to the ground" in 2013 on a "sidewalk in West Los Angeles." He was surprised when "an ambulance appeared suddenly." He did not call an ambulance. He was not bleeding on the street, or calling out for help. He said that "three men came out, checked my ID, laid me on a cart, pushed me into the van and took me to the emergency room." This may seem to be what anyone would want, or at least what anyone would need.

However, this man "said he didn't want to go to the ER." and if he had wanted to go, he said he "could have taken a cab costing less than $10." So, there is what he needed, which may have been a hand in getting back up following the fall. What he got was a bill for $250.00. Being as that was three years ago, one might dismiss it as a lesson learned, and move on. But this gentleman is currently fighting a bill collector who is seeking the $250.00. That sum is significant. 

According to a spokesperson for the Los Angeles Fire Department, this is not common. He says that ambulance rides can "easily top $1,000." In fact a GAO report in 2012 says that "an ambulance ride nationwide can range from $224 to $2,204." There are variables such as distance and the level of medical care rendered during the trip. But such qualifications (your mileage may vary) are not uncommon with reports of averages or data aggregations.

According to an ambulance company manager quoted in the story, "most private ambulance companies follow the lead of doctors and hospitals and routinely price their services as high as possible in hopes of receiving a bigger reimbursement from insurance companies." A representative for Los Angeles County confirmed that this practice occurs. This is the theory that you ask for twice as much as you want and then you can take a 50% reduction and still walk away happy. And, even better, maybe someone makes the mistake of paying the bill at the claimed amount and you get "free money." 

Overall ambulance charges are not an insignificant contributor to the costs of medical care. In fact, the story quotes a federal government audit that concluded "Medicare paid roughly $30 million for ambulance rides that apparently resulted in no treatment." These are not the rides that were followed by billing for significant hospital care, as one would expect following a serious motor vehicle accident or fall down the stairs. These ambulance rides were followed by no rendition of medical care. In other words, these patients were apparently transported in an ambulance and then found to need no care, and discharged. 

While the average "urban ambulance ride is 10 miles," some billed "Medicare for trips of more than 100 miles." This reminded me of a lady I knew who suffered a serious heart issue and was taken from her rural home to a regional hospital for care. After a significant heart surgery, and some serious complications, she was discharged by the regional hospital to recover several miles away at a rural hospital. They drove her across the countryside in an ambulance, deteriorating as she went. Arriving at the rural facility, which lacked any expertise in cardiac care, she began a precipitous decline. 

Family members suspected that the regional hospital (RH) personnel had figured out her prognosis (bad) and had concluded that the end was near. they perceive that not wanting her death on their statistics, the RH arranged for her transfer two towns down the rural highway in an ambulance. This was cheerfully described as a transfer to a "swing bed facility." Use of these "small rural hospitals" is purportedly to allow patients to recover "close to family and friends." The link above describes how this allows "you to recover in a hospital setting, versus a nursing home." Of course, neither is likely to have facilities for complex cardiac care. 

Following a heart surgery, I am not sure that I would be comfortable with a transfer to a "small rural hospital" whose interest in such a case might be focused primarily on filling beds. And, some may harbor doubts that an 88 year old heart surgery patient, under medication, is capable of making an informed decision to abandon the critical care regional hospital in favor of a "small rural hospital" that has a bed to fill. After a cross-county ambulance ride of significant expense, she arrived, but not in good condition.  

Through the next afternoon, her condition declined. As the decline became obvious to the personnel at the rural hospital (again the family believes), the rural hospital decided to transfer her back to the regional hospital. Having spent the better part of 24 hours deteriorating in the new environment, following  a long truck ride, medical expertise concluded that a return  ambulance ride would not do, and a helicopter was dispatched instead. I am told the expense for this was significantly higher than the truck ride the day before. (Riding in a helicopter is on my "bucket list," but I hope to do it over the Grand Canyon or Maui while conscious and coherent).

Following a rural helicopter ride through the black night, her body arrived back where she started, at the regional hospital. Despite these extraordinary transportation efforts of the medical professionals, her soul had, in route, departed to some other destination. There was disagreement as to whether she was even alive when she first entered the helicopter. There was consensus that she never made the decision to engage the helicopter, and there remains some doubt that she ever knew she went on the ambulance ride across country the day before (The forms demonstrate some lines (scribbles), and there are claims she signed the necessary forms, but her family harbors doubt about coherency and competency).  

Back to the Los Angeles story, a spokesperson for Los Angeles County said that "no ambulance can take patients to hospitals against their will." But, she cautioned that ambulance crews can "make judgment calls if a patient is unconscious or unable to effectively communicate." She said that if a patient is "disoriented and not speaking clearly," then the crew can make a decision to transport. This does not sound like the 79 year-old man who claims he told the crew he did not want an ambulance ride. But then the story is focused on his side of the story, and the crew was not interviewed. They may have honestly perceived him differently.

The Times' columnist concluded that perhaps this was just a misunderstanding about transport, noting "there was some confusion the day he got hurt." He believes that it was a favorable outcome that the 79 year-old "was looked after," and that it is "better safe than sorry." Though he only suffered a sprained wrist, the author concludes this was the best, or at lease an acceptable, outcome. In the grand scheme of things, perhaps $250 is not that extreme an amount balanced against a health concern.

Both the 79 year-old with his sprained wrist and the rural octogenarian present questions of consent though. In the Los Angeles story the author perceives it "better safe than sorry," and perhaps there is some logic in that. Found in a posture (down) and environment (city street) that may be inhospitable, perhaps it is best to transport (absent a clear objection) for evaluation and care? 

But it is harder to make that conclusion with the octogenarian who was found in a safe and hospitable critical care hospital environment. Absent a clear expression of assent for transfer to a "small rural hospital," what justifies this transfer? Certainly, expense might be saved. But, in this setting it was not. Any comparative advantage (financial) offered by the rural setting was likely offset that first day by the long ambulance ride. If not, it was most certainly erased by the panicked and urgent helicopter ride back. 

The two stories also illustrate another point. Once you become the patient, you may lose the ability to chart your own course (it could happen to any of us on a sidewalk or otherwise innocuous spot). You may then find yourself at the mercy of a system that is driven by considerations and motivations that you do not understand, and may not even perceive. Just remember "you can't always get what you want,"

And despite Mick Jagger's reassurance, despite the effort you invest ("try sometime") you may not even "get what you need." Perhaps we must all hope that if it is us in that situation, there will be someone there for us, family member or friend, who will be able and willing to look out for our best interest?


Nominees Named for PMC and WPB

The Statewide Nominating Commission for Judges of Compensation Claims (SNCJCC) met Monday, March 21, 2016 in Orlando. It interviewed applicants for the judicial vacancies in Panama City and West Palm Beach.  The Commission nominated:

Panama City Beach (PMC) District, to replace Judge Laura Roesch 

John Perry Moneyham
Tara Sa'id
Jonathan Walker

West Palm Beach (WPB) District, to replace Judge Shelley Punancy
Jeffrey Jacobs
Gregory Johnsen
Ken Schwartz

The Governor's office will schedule interviews on these nominations in the future. This week the Governor's office will be interviewing Judges Wil Condry (ORL) and Charles Hill (MIA) for reappointment, and the nominees for Ft. Myers (replacing Judge Sturgis), Port St. Lucie (replacing Judge McAliley) and West Palm Beach (replacing Judge Basquill). The nominees for those positions are posted here.  

Sunday, March 20, 2016

When it over, Is it really over?

In 2001 Sugar Ray recorded When its over. The lyrics ask 

When it's over, Can I still come over?
And when it's over, Is it really over?


These lyrics came to me recently as I wrote a letter to an injured worker. It is not uncommon for me to hear from the same injured worker multiple times. During a single week recently, I heard from two. 

One was upset that he cannot get the assigned judge to return his calls. I studied the case, and found that I have written to the injured worker 19 times in recent years. In my first letter to the worker, I had to acknowledge that when his petitions were initially assigned in 2004, the judge did not bring them to trial for over two years. That judge is no longer with this agency. Delays happen, but two years is a long time. 

In this particular case, there was some confusion about whether the Judge entered a "stay" back in 2004. Judges of Compensation Claims do not have the authority to enter a stay. When a petition is filed, there should be activity. The matter will be set for mediation, and some judges will set it for trial immediately as well. This is a good way to provide parties with ample notice of trial, and to keep the case from being forgotten. If it is not immediately set for trial, then following the mediation it must be reviewed again to see if issues remain to set for trial. Some of the early confusion in this case would have been solved if the case had been set for trial. 

A successor judge dismissed the petitions. Soon thereafter new petitions (making some of the same claims) were filed and yet a third judge heard and decided the case in 2007. It was a complete denial of compensability (the Judge said no benefits of any kind were due because of the law). So, the injured worker lost the case at trial. There was appellate activity, and in the end the First District Court did not reverse the trial judge. The injured worker, without an attorney at that point, asked the Florida Supreme Court to review that decision, but review was denied. 

In 2015, the injured worker filed another petition. The injured worker was seeking benefits, and the employer/carrier was denying them, essentially saying "judge we've been here before, the claims were denied, and the employer should not have to defend again. A fourth judge conducted a hearing. The judge again denied the case. No appeal was filed regarding that decision. 

In 2016, I continue to hear from the injured worker. The worker says he does not understand why the judge's office will not return his calls. He wants to have a hearing on his complaints of disability and his desire for medical care. He is upset that his right to due process has been denied. He seems immune to my explanations that his case is "over."

To answer Sugar Ray's first question in this context, it is "no." When it's over, you cannot still come over. The answer to the second question is "yes." When it's over, it is really over.  

In a 1992 (now classic) litigation movie, A Few Good Men, somewhat inexperienced Lt. Commander Galloway (Demi Moore) is in trial. There has been an objection to some testimony, and the judge has overruled it. Galloway later stands and says "we renew our objection . . .," and the judge again overrules it. Galloway, sticking to the proverbial guns, then says "the defense strenuously objects," and the judge overrules her objection yet again. Sometimes when something is over, it is really over; adding adjectives like "strenuously" are perhaps unlikely to change the decision. 

The injured worker example discussed above is not uncommon. We see a variety of issues during and after workers' compensation claims. We see litigation filed in circuit courts against lawyers. We see complaints filed with The Florida Bar, the Commissioner of Insurance, and the Division of Workers' Compensation. Periodically, we see litigation filed in federal court, and on at least one occasion an injured worker sought to have The United States Supreme Court review a workers' compensation case (05-418). 

In some of these instances, the injured worker complains that they did not receive due process, or that the denial of benefits was a result of prejudice or bias. Often there is a complaint that the opposing attorney or the injured worker's attorney was underhanded or acted inappropriately. Due process is afforded to all by this Office. Due process means that there will be a trial and all sides have an opportunity to tell their story. Due process does not mean telling the same story over and over, after the decisions have been made.

When a petition for benefits is filed, the Office of Judges of Compensation Claims has an obligation to oversee the litigation of the claimed benefits. This includes an obligation to bring the matter to a timely hearing, or to document why a delay was necessary. Not every case can be brought to trial in the 210 days prescribed by statute, but it is always possible to describe why any particular case did not. In this, the OJCC failed this injured worker back in 2004. But, a trial was eventually held.

It is the obligation of this office to afford people an opportunity to tell their respective sides of the story. The employee and employer should each have a chance to bring witnesses, submit documents, and try their case in the way they feel is appropriate (of course subject to the parameters of the law in Chapter 440, the Florida Evidence Code, other applicable statutes, and the Rules of Procedure for Workers' Compensation Adjudication). That is what due process means.

This Office has the obligation to issue a trial order thereafter in a timely manner. The statute says this will occur within 30 days. The vast majority of OJCC orders meet that deadline. When we do not meet that deadline, just as with timely trial, we should explain why.

If someone is not happy with the outcome of a trial, they can ask for the judge to reconsider the decision. This is a motion for rehearing, the rule is 60Q6.122. It has to be filed within 10 days of the judge issuing the order. Though the rule says "motion," Rule 60Q6.115(1) says that "the judge may treat any request for relief from an unrepresented party as a motion." Essentially, the person that wants reconsideration of a decision has to ask the judge to do so; in writing is always best. 

If someone is not happy with the outcome of the trial, they may also appeal a Judge of Compensation Claims' order. All workers' compensation appeals in Florida are within the authority of the Florida First District Court of Appeal. I sometimes get asked "why," and the best answer is that the statute says so. That is what the legislature has decided. To appeal, the person files a document with the Judge's office that says they want to appeal or want the case reviewed by the Court of Appeal. This "notice of appeal" has to be filed within 30 days of the order. 

Sometimes litigants represent themselves. They should know that there are Rules of Appellate Procedure for workers' compensation claims. There is also a book written by the Appellate Law Section of The Florida Bar that may be helpful. These resources are both available on this Office's website, www.FLJCC.org, under the "Resources" tab. 

This Office conscientiously strives to make the best decisions possible, based upon the information appropriately provided by the employees and employers in each case. When someone is dissatisfied with the outcome, they can seek to involve the judicial branch, the Florida First District Court ("I object"), and if still unsatisfied can seek review by the Florida Supreme Court ("I strenuously object"). 

But, when that process is over, it is really over. The injured workers and sometimes employers that contact me think that there is something I can do to change the decisions of the trial judge or the appellate courts. Once 30 days passes after the order, if no notice of appeal is filed, it is over. Once the appellate courts have ruled, it is over. 

I cannot change what the Courts have decided. I cannot investigate or punish attorneys, employers, or insurance companies. When its over, it is really over in the Office of Judges of Compensation Claims. Though it is possible to file complaints with the Department of Financial Services, Division of Workers' Compensation, Office of Insurance Regulation, The Florida Bar and more, none of those agencies can change the decision of the trial judge or the appellate court. Though each might take action against someone involved in a case, none will be able to award benefits to an injured worker. 

It is therefore critical that people understand the proceedings before a Judge of Compensation Claims are their opportunity to prove entitlement to workers' compensation benefits. It is their one opportunity regarding those specific claimed benefits. If they lose, he/she/they have a right for one appeal, review by the First District. After that, she/he/they may ask for further review, but that further review is not a "right," and may not occur. And, "when it's over," it is really over.