Sunday, January 29, 2017

Appellate Lessons, Explanation, Contrition, Persistence

There are a great many decisions handed down each week in American workers' compensation. There are over fifty jurisdictions, inhabited by hundreds of millions of people, and disputes arise. Some quickly resolve, some are mediated away, trial adjudicators are charged with others, a handful see appellate review, and an exceptional few attract the attention of any jurisdictions highest court. Adjudications are written for the parties to that case, it is how they learn the outcome. 

But, adjudications may be of value to others. Sam Levenson said "You must learn from the mistakes of others. You can't possibly live long enough to make them all yourself." It is also much less painful to learn from the mistakes of others. This is one of the great values of our legal doctrine of Stare Decisis, or "let the decision stand." Lawyers rely upon rulings in one case, with an expectation that other similar cases will be decided in a similar manner. Decisions are published, and in our technological age they are increasingly available inexpensively to anyone with Internet access.

In Florida, the vast majority of appellate decisions in workers' compensation come from the Florida First District Court of Appeal. The workers' compensation law directs that appeals of workers' compensation judge decisions are heard by that court, see section 440.271, Fla. Stat. Of course, workers' compensation issues may arise in other courts, leading to some appellate interpretations from the other four District Courts, see Brock v. Wastepro, discussed here

Appellate decisions in Florida are most often the result of consideration and deliberation by three appellate judges, and are known as "panel" decisions. It is possible that such a panel might change its mind on a decision; parties ask for that outcome through a "motion for rehearing." Periodically, all of the judges on a court might decide to rehear a particular decision, called a "rehearing en banc." 

Last May, the First District published a decision in O'Conner v. Indian River County, (Case No. 1D15-4986, May 20, 2016.). The May 2016 panel decision in O'Conner was withdrawn following a rehearing by the panel. The new decision was published on August 2, 2016. This case had some similarity to the litigation in Miles v. City of Edgewater, and the Court noted that the party seeking appellate review (the "appellants") were represented by the same attorneys that represented the claimant in Miles. Those attorneys requested the trial judge to approve retainer agreements between claimant and counsel, and then sought to challenge the constitutionality of Florida's workers' compensation law. 

In the May decision, the Court described the procedural history of the case. It noted that the petition for benefits (PFB) seeking workers' compensation had been dismissed by the claimant. The claimant then sought review by the Court by filing a petition for writ of certiorari (not an "appeal," per se, but a request that the Court review something within its discretionary jurisdiction).  It noted that a "petition for writ of certiorari was the only possible way for Appellant to challenge the retainer and fee order in this case because he had dismissed the PFB." Therefore, "there was no final order that could be appealed."

After the PFB was dismissed, the Employer/Carrier sought "prevailing-party costs." In Florida workers' compensation, the side that wins at trial may recoup some measure of expenses from the party that does not win. In this case, the trial judge ordered the injured worker to pay some of the employer's costs (spent defending the now-dismissed petition). The injured worker filed an appeal of that cost order. The "notice of appeal," which starts an appeal and describes what it is about was "twice amended." According to the Court, "each version indicating that he was appealing the final order assessing costs."

However, when the initial brief was filed (a brief is the written argument describing why the appelate court should take the action sought), "the real reason for his appeal" bcame apparent. The injured worker was actually challenging "the earlier-entered retainer and fee order." The Court concluded that through this process, "appellant’s counsel attempted to use this cost appeal to gain a second presentation of his argument concerning the retainer and fee order." It noted that "in no place did he (Claimant) indicate that he was not actually challenging the cost order on appeal but only the order addressing the retainer agreement." 

When the issue became more apparent, the Court "issued an order to show cause," which is a way for a court to ask a question. In this instance, the question was why this appeal "should not be dismissed and sanctions imposed." The response essentially said that the attorney “reasonably expected” the appellate court would consolidate the petition for review of the retainer order and the appeal of the cst order into one review. In other words, the attorney thought the Court would straighten out any procedural flaws on its own. 

The Court was unconvinced by the various arguments, and concluded that the purpose of the cost order appeal was "to use it as a pretext for making constitutional arguments about the fee statute despite the fact that counsel knew or should have known that the retainer and fee order was not reviewable." The Court noted that "it is incumbent upon every member of the Bar to be honest and open with the courts of this state." Finding no basis to conclude "counsel was deliberately trying to mislead the court" it nonetheless concluded "this was the net effect of their actions."

The Court said that "counsel chose to appeal a cost order for which they advanced no argument in support of reversal." The Court said this suggested "either that they put their interest in invalidating the fee statute ahead of their client’s interest in having the cost order reversed or reduced, or they appealed the cost order without having a valid argument in favor of reversal." regardless of which of these was chosen, "counsel’s actions and lack of candor required the court (and Appellees) to expend unnecessary time and effort on this appeal." 

The Court concluded the May decision by awarding appellate attorney fees against the injured worker, and in favor of the employer, regarding "their attorney’s time spent on this appeal." And, the injured worker sought rehearing, or a reconsideration of the decision. In August, the Court granted the motion for rehearing, and withdrew its May decision. 

In the amended decision in August, the Court affirmed the order awarding costs to the employer; "because Appellant did not present any substantive argument for its reversal." The Court "admonish(ed) Appellant’s counsel for their lack of candor concerning the order at issue in this appeal." The Court compared the factual basis of O'Conner with Miles. The Court noted that in Miles there was a final order, following trial, which was appealled and which addressed earlier retainer fee orders.Though similar to O'Conner, not the same. Because in n, the injured worker voluntarily dismissed the PFB and "so there was no final order to appeal."

The Court stated that "the improper use of this appeal as a second chance to obtain review of the fee order is troublesome." The Court cited "Appellant’s attorneys’ mistaken, albeit apparently good faith, belief that the fee order was reviewable in this appeal of the costs order," and "counsel’s failure to adequately apprise the court that Appellant had two pending proceedings in this court both challenging the same order despite having multiple opportunities to do so." And reiterated that "in no place did appellate counsel indicate that Appellant was not actually challenging the costs order on appeal."

The Court concluded by "accept(ing) counsel’s contrition." It reversed its earlier decision and relieved the attorneys of responsibility for attorney fees, concluding that "the admonishment in this opinion is a sufficient sanction."

There are a few important lessons in this series of events. Foremost is that people are not always going to do the "right" thing, and perhaps not even the "best." We will all make errors and mistakes. In the day-to-day, there will be instances where our mistakes will be called to our attention. When that happens, there is value in contrition, or "the state of feeling remorseful." Admitting error, owning error, and moving forward in a process to alleviate effects of error is a positive course. 

Also, it is likely that more is better than less in terms of providing notice. The underlying effort illustrated here was directed at challenging the constitutionality of a statute. When the cost-order appeal was filed, that notice could easily have included a sentence or two regarding Miles, the earlier denial of O'Conner's retention agreement(s), and the (then) pending petition for review of that denial. There seems no downside to providing some reference to the "big picture." It appears a great deal of time and effort might have been avoided here with some limited explanation of what was actually sought (constitutionality decision) and how that was interrelated with the cost order. 

And, finally, it is apparently good to keep pressing your issue. This August decision illustrates the benefits of persistence. It may not be frequent for appellate courts to grant rehearing, and to reverse itself, but it does happen. 

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