Tuesday, November 1, 2016

How do you Spell Relief?

In the 1970s an antacid manufacturer covered the airwaves with an advertising campaign. It equated it's product with the word "relief," asking "how do you spell relief," and the response was invariably some actor spelling the name of this product. It was designed to ingrain in consumers that the way to achieve relief was this particular product. The campaign was admittedly catchy and I recall several satirical take-offs.

So, in workers' compensation litigation (or any litigation really), how do you spell relief? The answer is "M - O - T - I - O - N."

I have a fair number of people ask me questions at seminars and programs. They begin with "how do I," or "what do I do when." Often they are founded upon some procedural aspect of a case, in which the attorney or adjuster wants something to happen. They are seeking action, a change in course for the case, or information. They are seeking what the legal world calls "relief."  

For "relief," the OJCC has a rule. Rule 60Q6.115 says (italics are direct quote) that:

(1) Any request for an order or for other relief shall be by motion and shall have a title describing the relief requested. The judge may treat any request for relief from an unrepresented party as a motion. All motions shall be in writing unless made on the record during a hearing and shall fully state the relief requested and the grounds relied upon. Any document referenced in any motion shall either have been filed prior to the motion or be attached to the motion. (Emphases added).

That is "any" which means "used to refer to one or some of a thing or number of things." "any" is broad, and might be argued to be all-inclusive. 

"request" which means "an act of asking politely or formally for something;"

for an "order" which means "an authoritative command, direction, or instruction;"

or other "relief" which means "generic term for all types of benefits which an order or judgment of court can give a party to a lawsuit,"

"shall" which means "an imperative command;" 

be by "motion" which means "A written or oral application made to a court or judge to obtain a ruling or order directing that some act be done in favor of the applicant;"

So, for "relief," or an order, a party in Florida files a motion and the judge enters an order (in any jurisdiction, the process will be similarly defined and described in applicable rules). 

Years ago, Karla Bonoff sang Personally, a love song in which she said

I've got something to give you
That the mailman can't deliver
I can't mail it in
I can't phone it in
I can't send it in
Even by your closest kin

And similarities exist for the process of obtaining relief from the Florida Office of Judges of Compensation Claims. If you have "something to give us," in seeking relief, don't phone it in (phone calls are not motions), don't mail it in (unless you are an unrepresented party), don't send it it even by our closest kin (asking the judge's staff to ask the judge how you might proceed). 

No, if a party seeks action by the OJCC, the path defined by the rule begins with preparing a motion. Any request for relief shall be by motion. Make the motion concise; state what is desired and explain why you should receive that relief. Another rule of thumb is to always state the relief (what you want) in the title of the motion. If the reader can tell what you want from the title, you are off to a great start. 

The motion "shall" that is an imperative, not a suggestion; you have to "fully state the relief requested." That is, tell the judge what you want to have happen. What do you want the judge to do in this case? You have to state "the grounds relied upon;" that is, why should the judge do what you want? There are readers rolling their eyes at this point because they find this rudimentary, but it bears repeating. 

So, you filed your motion. Now what? When is my hearing? Likely, there will be no hearing. The odds are that an order will soon be entered on that motion (but that should not happen until the opposing side has an opportunity to respond, unless there is no time). And, preparing that order is the judge's job not the attorney's. I recently wrote a post that included a discussion of proposed orders and the reminder the rules say not to file them. I heard back from an attorney who says that some judges will not rule on a motion unless the attorney does their work for them and prepares an order. I find that astounding. 

For "hearings," the OJCC has a rule. Rule 60Q6.115 says that 

(4) If the motion has not been amicably resolved, the movant shall file the motion. When time allows, the other parties may, within 15 days of service of the written motion, file a response in opposition. Written motions may be ruled on by the judge before the expiration of the response period and provide for filing an objection to the order within 10 days of the order, or the judge shall rule after the response is filed or after the response period has expired, based on the motion, together with any supporting or opposing memoranda. The judge shall not hold hearings on motions except in exceptional circumstances and for good cause shown in the motion or response.

So, one party seeks relief with a motion, and the other parties have 15 days to file a response (when time permits). This is permissive. There is no requirement to file a response. But, as some have observed, what is the sound of one hand clapping? If the only argument the judge reads is the motion, and no response is filed, it may be likely that the motion is granted (if it complies with the rule, states "the relief requested" and the "grounds relied upon"). 

It is generally up to the opposing side(s) to explain in their response(s) why the motion should not be granted. Sometimes the opposing party(ies) elects not to do so. But, they are later dissatisfied with the Judge's decision. They receive the order, and then decide to tell their side, by moving for rehearing. This is another process defined by the Rules, discussed more fully below. 

But, back to the main point, when will that hearing be? Likely there will not be a hearing. In fact, the rule says 

The judge "shall" meaning "an imperative command;" 

"not" meaning "to make negative a group of words or a word;"

"hold" meaning "to engage in; preside over; carry on;"

"hearings." This is clear enough. In most instances (other than exceptional circumstances), the judge shall not hold hold a hearing on a motion. The process is for someone who wants an order or relief to file a motion, for the other party(ies) to file a response (when time permits), and for the judge to prepare and enter an order. Certainly, history has demonstrated that unfortunately there are those who are incapable of or unwilling to follow the rules. 

And, unfortunately, this may lead to confusion and misunderstanding. Attorneys and litigants become accustomed to practices. That is true when judges follow the rules consistently and create expectations among those who practice; attorneys and litigants learn they can rely upon a judge's consistent compliance with rules and procedures. It is also unfortunately true when judges disregard the rules. In doing so, they erode consistency and predictability. By disregarding rules, judges create expectations that perhaps other judges might well also disregard rules and procedures. 

Attorneys, litigants, and judges should all follow the rules. They are not complex as regards the foregoing. People should put their needs and wants before the judge with a motion, other parties should be afforded an opportunity to respond, and then the judge should prepare and publish an order. It is simple, efficient, and effective. 

And when a party thinks the judge's decision is in error, Rule 60Q6.122, "rehearing," affords a limited process for the judge to reconsider a decision. But, it is important to remember that by this stage in the process, the judge has made a decision, and the party moving for rehearing may be trying to change it. Or, the party may merely be seeking more or better explanation for the decision. 

The Rule limits such opportunities. For example, they have to be specific, filed and served rapidly, and are not to re argue the issues decided; the rule says:

(1) A motion for re-hearing shall state specifically the grounds on which it is based and should not be used to re-argue issues already determined. A motion for re-hearing shall be filed and served within 10 days from the date of the order sought to be reviewed. 

The reasons for rehearing are specifically defined. They only include ("shall be limited to") only:

(a) To challenge rulings that were outside the scope of the issues presented; or

(b) To seek clarification in matters of law or fact that the judge may have overlooked or misapprehended.

The grounds for rehearing do not include:

(c) To present argument or evidence that a party neglected to provide before the ruling.


(d) To re argue issues or facts that the judge has rejected in reaching a contrary ruling. 


(e) to respond to the movant's allegations for the first time (having elected to not file the "15 day" response afforded in the motion process discussed above. 

So, how do you spell relief? The answer in litigation is "M - O - T - I - O - N." Of course, you might also spell it "R - E - S - P - O -N - S - E." And the "relief" process is defined and delineated by the rules. Effective practitioners will know the rules (these, or the rules in their own jurisdiction) and employ them to the benefit of their client. They will draft carefully, thoroughly and succinctly, file timely, respond effectively, anticipate decisions without hearing, and understand that "rehearing" is a limited option restricted to specific situations. 

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