Thursday, September 22, 2016

All Mechanical Things Fail

It is a simple truth of life that all mechanical things eventually fail. Despite our belief in them, or sometimes their age, we have to accept that mechanical things will periodically let us down. Everyone has experienced a vehicle breakdown, hard drive crash, or plumbing leak. These things all have commonalities. Certainly, they are frustrating and time consuming. Unfortunately, they seem to happen at the worst possible moments in our life.

As I contemplate this truth, I was reminded of an exchange on a very old television series called MASH. Some will not remember this show, but it is possible a few may. This episode was titled Sometimes you hear the bullet. In it, there is a heartfelt conversation between two of the main characters, a doctor named Pierce and the commanding officer of his army hospital unit, Colonel Blake. 

Pierce expresses frustration and disappointment that a friend has passed away at this hospital. The Colonel, a drafted doctor whose disregard for military protocol is a comedic mainstay of the show, imparts wisdom he gleaned in army "command school." He tells Dr. Pierce that "there are certain rules about a war. And rule number one is young men die. And rule number two is, doctors can't change rule number one."

In this regard, it is important to remember the mechanical things fail, but perhaps it is just as important to remember that none of us can change that fact. Often failures are predictable, as devices provide us warning and symptoms. But failures can also bumble into our present without fanfare or premonition. I struggle with whether I prefer the predictability. Too often the symptoms themselves are troublesome, concerning and distracting. 

When the "all things fail" truth came to my attention as a child, the important lesson impressed upon me was the futility of becoming upset or angry about the failure. Neither upset nor anger can prevent or remedy the failure. We simple humans cannot change the eventuality of mechanical failure. Our only point of control is how we respond to such a failure. It can ruin our day, we can act out, or we can deal with it and move on. 

I am not by any stretch saying that failures do not affect me. When my computer is not working, I will strive to restore function rather than simply resorting to a back-up computer. When my car will not start, I have the hood up, tinkering, and endeavoring to remedy the issue. Certainly, a call for a tow and a trip to the shop for expert assistance would be a more rational response most of the time for me, but still I tinker and try. 

 Computers have become indispensable in the world of litigation. A great many of those computers and components are monitored by software and other computers. Our amazingly complex series of OJCC machines sits 24/7/365 and serves Floridians. They allow access to information on our website, including process and rules, announcements, and information. They allow lawyers, adjusters, mediators and judges to read documents and file documents. They send notifications of those filings out across the Internet, alerting others of filings, actions and potential needs for reaction. The OJCC system and network are simply incredible. But not immune to issues.

Last weekend, we suffered a hardware issue with one of the spectrum of computers in the OJCC system. It was a failure not included in the various software monitors and safeguards. This tiny portion of the hardware array stopped working, and the rest of the system simply did not notice. But a few of our users did. At 1:00 Sunday afternoon, I received an email from one. I am proud of the fact that our users know that a Sunday, nighttime, or holiday email is likely to generate results. It evidences the perceptions our customers have regarding the service this Office provides. 

The email said, in part:
"I have been trying to e-file a Petition for Benefits in this claim for the past hour, but I keep getting the circle of death when I hit the last “Next” button to get to the page to attach the Petition page to file." 

This user, perhaps no different than my tinkering under the vehicle hood, persisted in trying to rectify the failure. The user "even tried filing a completely new OJCC case number for this client (given that defense counsel filed the initial pleading with the wrong last name) and got the same circle of death." Well, persistence is perhaps admirable despite the lack of success. 

Unable to file the intended petition, this user then attempted to file a "Notice with the Court of the problem." This was logical, perhaps the issue was with the "web form" for petitions, and a simpler "PDF upload" filing might work. However, those attempts resulted in "the same circle of death when clicking upload of my attached notice." 

The user concluded with "respectfully requesting that it be fixed immediately and we are requesting assistance with the same." The message then went on to say that this user's "client is in essence being denied access to the Court by my inability to complete these DOAH filing through the E-Portal." 

I sense frustration in the message. It is frustrating when computers, or any devices, do not act as we expect them to. And, I am as certain that everyone is interested in the litigation process functioning as smoothly and efficiently as practical. But, we have to return to our key points for today: (1) all mechanical things fail, (2) we cannot change that truth, and (3) we can control how we react or respond. 

Is a temporary inability to file a petition on a Sunday afternoon a denial of "access to courts?" The answer to this is unequivocally "no." Ignoring that this Office is no more a "court" than it is a "quart," there is no denial of access. See, The Quart of Claims, News and 440 Report, Volume XXXI, No. 1, Winter 2013. In the fabled "old days" of paper could someone accomplish a "filing" on a Sunday afternoon? The answer is no, and that answer is the same for all those filings we currently receive in the middle of the night, as stressed and overworked attorneys, adjusters and mediators are leveraging electronic filing. 

In the "old days," an attorney might create a paper document on a Sunday afternoon. But, the post office would not come pick it up or deliver it. Those niceties were restricted to weekdays. And while that lawyer might hand deliver that Sunday afternoon paper document, she or he would find the courthouse or workers' compensation office closed, inaccessible. At best, one might slide an envelope under a door or through a mail slot, but more likely would never get near the actual OJCC office door on a Sunday. 

That is why the procedural rules contemplate such arrivals that are not during business hours. Rule 69Q6.108(1)(e) says


"Any document, whether filed by electronic or other means, received by the OJCC after 5:00 p.m. shall be deemed filed as of 8:00 a.m. on the next regular business day."

That has been the rule for many years. So, in the old days, if you brought a document to a District Office and slipped it under the door at 7:30 p.m. on a Monday evening, that filing would be made the next morning, Tuesday, at 8:00 a.m. If the building was locked or otherwise inaccessible, then the attorney was inconvenienced. But she or he could return the next morning when the building was again accessible and deliver that document. And whether slipped under the door on a Sunday or a Tuesday night, the filing would be made on that next business day at 8:00. The inaccessibility of the office at night, on holidays, and weekends is no denial of "access to courts."

The electronic filing processes have made attorneys, adjusters, mediators and judges more efficient. Technology has been leveraged to allow us all to accomplish more with less effort. And we enjoy a great many advantages. We have become accustomed to convenience. We are so sold on electronic filing that its use has been statutorily mandated for attorneys. The era of slipping documents under doors is therefore clearly past. 

But, no matter how accustomed we become to the convenience of practicing law and filing documents on Sunday afternoons from the sugary sands of a Florida beach paradise, or distant mountain top, we need to remember that convenience changes only the "how," but not the effect. When some mechanical thing fails we have to remain confident that this will be fixed. The system will return to full function, even if that does not occur until the IT experts come to work the next business day. 

That merely means that on this particular Sunday afternoon, or Monday midnight, we did not receive all the convenience we have come to expect. And while we all hope that e-JCC and other platforms perform for you flawlessly and without fail, I would ask you to remember the three key points for today: (1) all mechanical things fail, (2) we cannot change that truth, and (3) we can control how we react or respond.

So it there is a system failure, please contact the OJCC. Email to Askojcc@doah.state.fl.us. Email me, david.langham@doah.state.fl.us. Believe it or not, that Sunday afternoon or midnight email is likely to be read before you might think, and we will begin the process of trying to help you rectify your situation. I have never experienced an agency with a greater commitment to its customers. But, please remember that despite our acclimation to instant information, instant filing, and instant responses, repair of a failed piece of hardware might just have to wait until normal business hours. 





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