Tuesday, June 13, 2017

Revisting the Obligation to Object

I received an email regarding a recent post. The post had to do with objecting to procedures, see Wondering Whether to Object. The bottom line of that Ohio case was essentially about preserving your record, and speaking up about procedures.

My correspondent provided a Florida case. It supported the "speak up" advice, but it also got me thinking about the history of this Office. I like to think that this "is not your father's" Office of Judges of Compensation Claims (a reference to a very old and unsuccessful ad campaign of a company since closed), and this decision from the First District Court supports that. 

In Jellison v. Dixie Southern Industries, Inc., 857 So.2d 365 (Fla. 1st DCA 2003), the Court was confronted with an appeal that raised two issues that the court decided "merit brief discussion." The first was staleness of the final order, and the second regarded a procedure by which the judge declined to prepare the final order and instead relied upon the lawyers to do that work for the judge. The laziness of asking the lawyers to do the judge's work used to be somewhat common in Florida workers' compensation, and was condoned by the appellate courts in cases like Dade County v. Turnbull572 So.2d 540 (Fla. 1st DCA 1990). 

The delay in Jellison was notable, though not the worst I have seen recorded. In this case, the trial occurred on August 20, 2001. The judge mailed a letter to both attorneys on March 13, 2002. The parties were instructed to each submit proposed orders within ten days. The Court noted that the Judge "made no oral findings at the conclusion of the hearing," and that the judge had "given no indication how she was going to rule."  

On April 18, 2002, two hundred and forty-one (241) days after the final hearing, the Judge entered the final order, which was then appealed. According to the Court, that order was "almost identical to the order submitted by the E/C." Incidentally, that coincidence was the same complaint raised by motions in Dade County.

On appeal, Jellison complained that the Judge's order was stale and that the findings were not supported by competent substantial evidence.  The Court reiterated that it "will not consider arguments which were not presented in a meaningful way to the lower tribunal." Any issues or arguments about an order being stale "must be preserved for appeal" by making an objection. Similarly, concerns or issues about the content of such an order should be raised with the judge issuing the order. The Court explained that such objections can be "filed at any time." 

The Court footnoted that final orders are "clearly" to be "issued within 30 days of completion of the hearing." It noted that this particular judge at that time had "several cases" before the Court in which "untimely letters to both parties" had been similarly utilized. And it cautioned regarding the harm that such "proposed" orders could work, saying that "signing a proposed order without any significant changes in situations where an inordinate delay has occurred creates the impression that lawyers are deciding cases rather than the judges." 

All valid points. In the 2006 OJCC Annual Report (p. 31), we acknowledged that 42.4% of final orders were not issued within the statutory 30 days. The longest period between trial and a final order issued in 2006 was 1,323 days, which is over three and one half years. That time period makes the 241 days in Jellison seem perhaps a mild delay by comparison. The 2016 OJCC Annual Report (p. 36) provided contrast. It noted that in 2006-07, the longest period between trial and entry of the final order was 2,911 days, which is about eight years. But, for 2015-16 only 12% of final orders were not entered in 30 days. And, the longest time between trial and order that year was 278 days.  I see that 278 days as unfortunate but a vast improvement from the 2,911. 

I am not aware of any Florida Judges of Compensation Claims who are currently not preparing their own final orders. And the timeliness of final orders has improved dramatically since 2006. This "is not your father's" Office of Judges of Compensation Claims. The credit for these improvements goes to the judges who preside in the 17 districts around the state. They are moving cases to trial and entering timely final orders. They are not to my knowledge adopting orders prepared by lawyers any longer, and thus this system is avoiding any "impression that lawyers are deciding cases rather than the judges." 

Jellison reminds that it is important to speak up about process and procedure. If there is something occurring in a case, it is up to the parties to file or voice an objection. This affords the assigned judge the opportunity to consider such objections, and potentially to ameliorate or eliminate prejudice or harm by altering process or procedure. And, Jellison reminds us that the "good old days" may not have been quite as rosy as they are sometimes remembered. 

In Florida today, we have a great many attorneys who may not remember the long delays waiting for orders. They may not have ever experienced a judge who cajoled or coerced the filing of "timeliness waivers." And it is important that we recognize that our Judges today are doing the job of hearing their issues and preparing timely orders. If this is not your experience, please email me, david.langham@doah.state.fl.us.



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