Thursday, August 31, 2017

The Gracious Invitations

Everyone would appreciate a gracious judge, right? 

Years ago, I was contacted about a case in one of our Districts; it had taken many months to get to trial. The party calling me was upset, and review of the case docket supported that the delay had been significant. However, I found two documents on the docket in which each party's attorney had "waived" the time requirements in Section 440.25 Fla. Stat. In Florida, it is a statutory requirement that a petition for benefits be heard within 210 days, this trial had been delayed for years. 

The Florida First District Court has not been deferential to statutory deadlines in workers' compensation. It has held that the 210 days "is not 'inflexible nor inviolable.'” See, Rubio v. Gymboree Corp., 178 So.2d 81 (Fla. 1st DCA 2015). There have been many similar decisions over the years, with the Court concluding that various time deadlines in Florida workers' compensation are "directory, not mandatory," Brown v. Pumpian, 504 So.2d 481 (Fla. 1st DCA 1987). 

The Court has not been deferential to statutory constraints. Various court interpretations over the years have been perceived by some as frustrating the intent of the legislature, and by others as implementing it. These analyses make for great conversations and debates about statutory language and phraseology. Some argue that if the legislature meant those deadlines, then it would codify consequences for failure, that some penalty would signal its intent of mandatory rather than directory time lines. 

My discovery of the "waivers" in that case led me back to the complaining attorney with a question or two. First, why that attorney (and the opposing counsel) had filed a "waiver," and second why the attorney was now upset at the delay having effectively, previously, waived any objection to it. The attorney told me that "everyone" filed such waivers in their cases in that District, because they harbored a perception that not doing so would potentially be to their client's detriment. 

That confused me, and my questions continued. The attorney explained that in that district, whenever there was a motion hearing, status conference, or other interaction with the Judge's office (even a phone call to staff), part of that interaction would invariably return to a gracious inquiry from judge or staff something like "I notice that you have not filed your waiver of time limitations in this case." There was never an instruction or demand, just a gracious ("perhaps you forgot") inquiry as to the absence of that filing. And, there was some perception that today's needs (the motion, the request of staff) was more likely to bear fruit if a waiver were submitted or at least promised. 

Particularly when one is seeking assistance or relief (a favorable ruling on a motion, a new date for a hearing, etc.), one may feel it is important to ingratiate themselves to either judge or staff. The attorney's were being politely and graciously reminded, persistently, that this judge expected a "waiver" filed by every party in every case. While the reminders were seemingly polite and gracious, it is not appropriate to cajole someone into waiving their rights. 

This complaining attorney told me that s/he never felt "threatened" or necessarily believed that the case or motion outcome would be changed by declining to make that filing, but s/he consistently concluded "better safe than sorry" and filed the waiver in each case. After being repeatedly prompted by judge and staff on this "waiver" subject, she said filing them became an accepted habit in that district. S/he explained acceptance of the statutory intent of speedy adjudication was effectively frustrated in that District, and the perception was that this was both systematic and intended. 

As I investigated, discussing this phenomena with other area practitioners, I had another attorney tell me that filing a waiver of time limitations in her/his office, regarding cases in that district, had become an integrated portion of whatever other document the office first filed (notice of appearance, etc.). They filed "waiver" of statutory time limits in every case, because they were conditioned to by the prompting of the judge and staff. And, because they wanted the "gracious" reminders to cease. This particular attorney said that s/he felt the reminders were veiled threats.

I ran into the graciousness subject again a few years later. In this instance, an attorney was troubled that a judge had discontinued setting trials in a particular remote county (most of the Florida OJCC District Offices serve multiple counties, but there is only one District Office in each district). The attorney had become accustomed over many years to the judge periodically travelling to this remote county for trials. This attorney liked that remote trial process. 

The judge had then transitioned to setting all trials to occur in the District Office, regardless of the county of accident. The hearing notices included something to the effect of "if the parties object to the hearing site, and wish trial in the county of accident, this office should be notified immediately." The attorney that contacted me perceived this gracious invitation for objection to be "passive/aggressive" and threatening. S/he described a perception that such an objection might lead to the disfavor of the judge or even an unfavorable outcome. 

This attorney was upset about having to travel to the District Office, and wanted the judge to resume travelling. The attorney was not objecting, however, based upon perception or fear. I asked if anything this judge had ever done or said supported this fear, and the attorney somewhat sheepishly conceded the judge had not. So, I asked directly, why not object and request what you want (local hearing). The attorney said s/he would rather be "safe than sorry," and wanted to avoid any (even potential) conflict with the judge. 

The opposite complaint arose in another situation. Another attorney was frustrated that a hearing was proceeding in a remote county, where the accident occurred. The attorney explained that the attorneys, witnesses and parties in that case were all located in the city where the particular District Office was located. However, the Judge insisted the trial occur in the county where the accident occurred. Despite the parties' stipulated motion to have the trial at the District Office, the Judge insisted on everyone travelling. The attorney perceived this as ungracious. The Judge insisted it was consistent with the statute.

I have tried cases before a variety of judges in both workers' compensation and other civil proceedings. I have worked against a wide variety of attorneys, some more exceptional than others, each in their own way. The point is that people are individuals, and each may have her or his own perceptions of others and their actions. What one perceives as graciousness, others may perceive as a threat, implied or direct. One might ascribe ill-will to the issue of waivers, judicial travel, hearings in the county of accident, or more. 

That perception will be based upon what the listener hears, not so much upon what the speaker says. The judge may be intending sincere graciousness, and yet the attorney may hear threat or threatening. I have heard it in relation to out-of-district judges. One purportedly offered parties in a case an alternative to the VTC system, "everyone could come here instead" (the remote judge's office). I am sure that sounded gracious to the speaker (Judge), but it was not interpreted that way by the listeners.

It is critical for judges to understand this distinction, but it is as important for any authority. Supervisors, managers, partners, CEOs and more need to be conscious that what is heard may not be what was intended when words were spoken. What one intends as graciousness may not be interpreted or perceived as intended. When speaking, consider the effect on the listener. And, remember that if people wish to waive their rights, they well know how to do so, on their own, without being invited or promoted to do so. Such "gracious invitations" and reminders are simply too prone to misinterpretation and should be avoided.  

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