Tuesday, June 28, 2016

You Wouldn't Understand

For the last ten years, there have been efforts in Florida to share workload among the various judges. We have 30 judges geographically distributed through the states. And we lease space in which to house each, and the required staff each requires. So moving judges from district to district is impractical, at least short term or on short notice. So, to share workload, we initially tried having judges travel outside their respective primary districts, and more recently with the use of the Office of Judges of Compensation Claims' (OJCC) video teleconference system, or VTS. This system interconnects the various district offices and provides unprecedented flexibility in case assignment. 

The conundrum in the OJCC statistics had been a perception that litigation, that is the actual occurrence of trials, was more prevalent in south Florida than in other areas. There is also a perception that sometimes the cases litigated there are more complex than elsewhere, leading to some discreet trials being longer and involving longer and more detailed final orders. The solution was to shift some portion of trials from south Florida to other judges. 

When this was accomplished with travelling judges, a judge would visit a south Florida district to hear cases. The trials were "donated" to this "visiting" docket by the regularly assigned judge. Attorneys complained that this process was too unpredictable. They wanted to know in advance which judge would hear their case. Inexperienced in other areas of law practice like civil and family law, some were unaware that learning the identity of your judge on trial day is common in other practices. Many of us have seen it repeatedly in Florida's Circuit Courts. 

To assuage those concerns, we began assigning south Florida cases to other judges, remote judges. The parties knew of the trial judge very early in the process. Attorneys then complained that these "north Florida" judges did not "know the players" or did not "understand the culture" of their cases. Several of these attorneys actually told me that they prefer that their judges to make decisions based on information outside of the evidence in their cases. They want judges who "know the players" and will make credibility decisions about medical doctors and other witnesses based on what the judge already knows of them. 

That revelation was a shock. That would be absolutely and incontrovertibly inappropriate. Judges are supposed to make decisions based on the evidence presented. And, if lawyers think there is relevant evidence about a witness, or impeachment of a witness, they are supposed to make that part of the record (ask those questions) in the case they are trying today; it is not appropriate to impeach someone's credibility only through argument today about reputation that everyone supposedly "knows."

The Judge's job is to hear the evidence that the attorneys and parties bring to trial in each case. The judge's job is to be unbiased by anything that is not in that record, in that case. If there is a reason to discount or disregard some witness' testimony or opinions, then it is up to the attorneys or parties in that case to document the reason and to make the arguments - in that case. We all learned in high school that reputation and rumor can be unpredictable and sometimes unfair. People should be asked about facts and their answers should be given consideration.  

After a period of several years, the OJCC greatly diminished assignment of cases to "out of district" judges. Many did not even notice. I was confronted at a recent conference by an attorney who assured me that "virtually all" of his cases in one south Florida district were being assigned to "north Florida" judges. I was skeptical, and agreed to research this. The facts did not support his complaint. In fact, very few of his recent cases had been assigned "out of district" as described. I do not doubt the sincerity of his perceptions, but they were simply not consistent with fact. 

I thought of this whole process of reassigning cases recently. This perception that there are "two Floridas," one to the north and one to the south. This familiar refrain that north Florida judges  do not "understand the culture" of their south Florida cases. These thoughts came to me when I recently read a WorkCompCentral article about the "two Californias." After reading it, I see some similarities to Florida, and some marked differences. 

In California, there is a "rating bureau" that participates in setting the insurance rates for workers' compensation. The president and CEO is Bill Mudge, and according to the WorkCompCentral story, he recently made some observations about California Workers' Compensation. Essentially, he claims that similarly there are two Californias, coincidentally the north and the south (Florida and California are both long and narrow, this makes some sense). There, the perception is that Los Angeles is different, and that it demonstrates different claim volumes. Ronnie Caplane is the "former chairwoman of the Workers’ Compensation Appeals Board;" She was quoted saying “I think we should just lop off Los Angeles and watch it sail by,” Certainly a direct statement. I have heard similar sentiments sometimes in Florida.

Mr. Mudge says that rate-making is about "trying to forecast human behavior.” He notes that this is difficult, essentially because people are different. One example noted is that "one in 60 workers are projected to file a claim in 2016." And while this is much lower than 50 years ago, "frequency in California has increased by a cumulative 15% since 2009" but frequency in "the rest of the country" has been declining during the same period. This raises some interesting questions. Are more people getting hurt in California than elsewhere? Or, could it be that similar proportions are hurt, but more people are reporting their injury in California?

It is also possible, as some have pointed out regarding Florida's decreasing "frequency," that perhaps more people are hurt than are reporting it. Some claim that human behavior is driven by risk and benefit analysis. That is, some who are hurt consiously consider whether the benefits ("upside") of a claim outweigh the risks ("downside") of being in the workers' compensation system. Then they make a conscious decision in some instances not to file a claim despite suffereing a work accident. Thus, some people argue that locations with higher claims are not inflated, but normal, and that the locals with lower claim volume are artificially suppresed by the upside/downside analysis and people's conscious decisions not to report. In either event, the disparity in frequency is interesting and worthy of consideration and discussion. 

Nonetheless, some point to south California in regard to this increase in frequency and lay blame or responsibility. Mr. Mudge says that frequency has increased in double digits in the Los Angeles area, while decreasing in the rest of the state. Another measure of claims is "severity." While "frequency" measures how often injuries are occurring, "severity" measures how serious they are, and as a result perhaps how expensive they are. Comparisons published in the WorkCompCentral story suggest that permanent disability, or singificantly severe claims, is also more likely in cases in the Los Angeles area. 

One propounded explanation is the frequency of California "cumulative trauma" injuries. A cumulative trauma injury is one in which there is no "accident." These are injury diagnoses where there is no discreet event or insult to the body. Instead there are a series of insults, perhaps "trivial" or uncompelling in themselves, which combine over time to result in an injury. The classic example is carpal tunnel syndrome, a painful condition of the wrists resulting from overuse. Another example is what became known to many as "tennis elbow." These "cumulative trauma" injuries now account for 20% of California claims that result in "indemnity" or cash payments to the injured worker for lost wages or wage-earning capacity. 

Another discussion in the California analsysis from the story is "attorney involvement." The article notes that attorneys are involved in "90% of the cumulative trauma claims in Los Angeles, compared to attorney involvement in 61% of claims filed elsewhere." The comparison holds for claims generally; "claims with attorney involvement ranges from a high of 58.3% in Los Angeles County and 56.5% in Orange County to a low of 28.8% in Mono County."

The implications are simple. First that attorney involvement is bad and second that attorney involvement makes the cases more severe. This, some argue is a "chicken and egg" analysis. Do the severe cases involve attorneys because they are severe, or are the cases severe because they involve attorneys? There can be rational arguments made for either, but arguably neither would fully explain the geographic distinctions cited. Why are there distinctions between north and south? 

The article also points toward mental health, noting that "claims from the Los Angeles area had a higher rate of mental health issues in general." Are people in the south actually suffering more mental health issues? Or, are people in the north under-reporting their own mental health issues? Some will argue that the attorney representation could also play a role. This is all very interesting. 

WorkCompCentral reports that an attorney at a recent conference said the judges are to blame. A judge at that conference said not to blame the judges, but the "law they enforce." Yet another attorney placed responsibility on the doorstep of physicians, some of whom "game the system" for personal gain. Ultimately, the article made me think about geographic diversity. Does the location in the state really make any difference? Is there a "culture" of cases that cannot be appreciated unless you live and work daily in a particular area of the state?

I had the chance to discuss the "north Florida judge" perception with such a judge earlier. The judge told me that attorneys trying cases by VTS has repeately made arguments in cases and then assured the judge of "truth," cautioning "you wouldn't understand" but this is "how it is here." I thought this was the most compelling perception yet about geographically distant cases and trials. If you are sure that some remotely-located judge "wouldn't understand," then it is your job to make that judge understand. Explain, demonstrate, produce evidence. As a law school professor of mine intoned repeatedly, "prove your case, that's your job." I found him annoying, and we all ridiculed his repetitious statements. In retrospect he was the master of the obvious sometimes, but his advice I now understand and recommend. 

No matter where you are, where your judge is, what the case is about, what the special circumstances are, your job is to prove your case. This means presenting your evidence. This means meaningfully cross-examining the opposing parties' witnesses. This means being prepared, concise, and effective. A good lawyer knows to never rely on what she/he thinks the judge may already know. The best lawyers prepare for everything, use what is required, and walk away knowing they did their best job. 

Are there "two Floridas." I leave that to others. Certainly, I have heard arguments to that effect. I respect that some feel that way, while others disagree. What do you think? Tell me. I think I can understand. I have often sung along (you do not want to hear) with Pink singing Gone to California, and now I will always wonder which California she means. Every time I hear California Girls (Beach Boys) or California Gurls (Katy Perry) I will wonder which California. Which California is it where rain is so infrequent? Or perhaps I am just overthinking things? Or perhaps I just wouldn't understand?

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