Tuesday, April 12, 2016

Aspire to Apply the Law Fairly

What is appropriate dress for a day at the workers' compensation office? We see a great variety of wardrobe. Does the way we dress speak to the respect we have for the system and those we represent each day? I have seen attorneys appear at our offices in casual dress. In the interest of full disclosure, you will rarely see me in a tie at the Judge's office. However, you will never see me at a hearing without a tie or jacket. 

But, we have seen attorneys appear in shorts and flip-flops sometimes (mediation). I once saw an attorney appear at a hearing in shorts and golf shoes. I suggest that level of formality does not respect the process, and certainly does not respect the recovering workers whose cases are being addressed. As an aside, we periodically have an attorney enter our office and quietly (sometimes not quietly enough) ask the security guard "I am here for ______v. ______, which one of these people is my client?" That is no more respectful.

We are all used to the process and often we are used to each other. Attorneys and adjusters and judges see lots of cases. But we have to remember that the one we are each working on today is that particular recovering employee's only case. Today is likely to be her or his only perception of the Florida workers' compensation adjudication process. This may be true for a particular employer representative who appears for proceeding also. 

On April 25, 2015, The Florida Bar News reported that the Florida Supreme Court had proposed a new rule for Florida Judges. If adopted, Rule 2.340 of the Rules of Judicial Administration would say "during any judicial proceeding, robes worn by a judge must be solid black with no embellishment." Numerous Internet searches thereafter failed to reveal what embellishments might have been causing the concern or the drafting of a new rule. 

I did find articles detailing how, years ago, Chief Justice William Rehnquist adorned his judicial robe with stripes. According to a 2007 article in the Chicago Tribune, Chief Justice Roberts has declined to follow that precedent. What embellishments might some judges be wearing? In September 2015, the Florida Supreme Court adopted the rule change. This rule change was momentous enough that the Wall Street Journal documented it. 

According to the Court, judicial attire "is a crucial indicator of the seriousness of the judicial office and of the proceedings." The adoption of the rule is in furtherance of the Court's "major responsibility to provide leadership and direction to advance the judicial branch's ongoing effort to enhance public trust." As Fernando (Billy Crystal) told us in 1985, "it is not how you feel, it is how you look, and you look Mahvelous!" 

According to the Court, attire worn by judges "must promote public trust and confidence in the proceedings." While the rule was pending, the Court accepted comments; there were reportedly few. some questioned the need for a rule. Others saw the rule as an expression of the Court's distrust of judges. The Court pointedly contradicted that in its September order saying "this Court holds the judges of this state in the utmost esteem and is confident the vast majority of judges fully fulfill their responsibilities." (Emphasis added). This may suggest the new rule therefore speaks to a small minority

But, "judges wearing different colored robes or robes with varying embellishments" might confuse the public, the Court concludes. It fears that one might wonder if "there is a 'status' attributed to the varying colors or embellishments worn by different judges." The public could wonder if rank or tenure or status is denoted by variations. Some people might even "wonder whether the presiding judge is a 'real judge' or whether the judge will take the proceedings seriously," if diverse robes were worn. The uniformity of judicial attire, the Court concluded, "will no doubt avoid these concerns and promote public trust and confidence." 

According to a Mr. Feldman writing for Bloomberg, the whole robe issue was the result of "a judge who wore a camouflage robe, which some litigants thought signaled his identity as a good ol' boy." Mr. Feldman disagrees with the Court, and contends that "the public is in fact sophisticated enough to understand that judges are humans, not automatons." According to his analysis, "Judges almost universally aspire to apply the law fairly, without favor or partiality." 

I think that is a fair characterization of the "vast majority" of the judges I have known. Further, Mr. Feldman contends, it is this characteristic of judges, aspiring to be fair and impartial, which "is the source of their authority, not how they look or what they wear." He might contend that we should long for a day when judges would "not be judged by the color of their (robes) but by the content of their character?" 

Mr. Feldman argues that judges wearing pink robes or "no robes at all" would be "acknowledging their individuality." This, he contends might make judges "less mysterious. And for some this might be a good thing." He seems to suggest that the presence of robes in any event may detract from the public's experience in judicial proceedings.

Notably, the Office of Judges of Compensation Claims (OJCC) is not a Court. There are those who desperately cling to the notion that it is. I frequently see pleadings in which reference is made to this Office as "this court" or "this honorable court." But, as clearly as the Court has said judicial branch judges must wear only black robes, it has also stated "the Office of the Judges of Compensation Claims is not a court of this State." Short of an amendment to the Florida Constitution, the OJCC will never be a "court." Because of this distinction, the Supreme Court's rule regarding black robes does not apply to the judges of the Executive Branch, including the Judges of Compensation Claims (JCCs).  

So, what is appropriate attire at the OJCC? A robe or a suit certainly shows respect for the process and the participants. It is curious that we need a rule to remind judges to keep decorations in check (might a particular lapel pin be distasteful to some?). But in the spirit of Rule 2.340 of the Rules of Judicial Administration, despite its inapplicability to the OJCC, perhaps judges and attorneys should periodically ask themselves whether they are dressing respectfully? 

Since the rule amendment was adopted last fall, I have repeatedly been asked about it. The simple answer is that the rule does not change the OJCC. Some have suggested that the OJCC should enact a similar rule, require JCCs to wear robes, and define the parameters: "black robes without adornment." The OJCC has not, however. Judges here may or may not wear robes, that is a choice subject to their individual discretion and independence. I would hope, however, that whatever her or his choice, that the Judges of Compensation Claims do elect to dress respectfully for proceedings. 

But how much should we focus on participant dress? This may be a difficult subject. The Law Society Gazette reported on a case in the UK in which a judge reprimanded an attorney for "dressing like something out of Harry Potter." The judge was investigated for the comment and eventually cleared. Commenting on the appearance of a litigant led to the Judge's embarrassment. Perhaps commenting on how others dress is not the best course? However, whether we dress neatly and professionally probably matters to the clients and to the public.  

I would suggest this, appear at our office for mediation or trial dressed neatly. A suit and tie is perhaps not necessary in every event (particularly hard to suit-up in the most hot and humid Florida months), but shorts and flip-flops are as likely never appropriate. Be respectful of the process and those who engage in it. Showing, not just giving lip-service to, respect for the people and the process will do much for your professionalism, and our collective professionalism. 

And, know that whether your Judge of Compensation Claims wears a sports-coat, a suit, or a robe, their ultimate goal is "to apply the law fairly, without favor or partiality." That is what we do, and we do it to the very best of our ability no matter what we wear. 

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