Sunday, April 1, 2018

Appropriate Service - A Reminder

Service is a subject that fortunately does not come across my desk very often. I am hopeful that this is because service is actually effectuated in the vast majority of instances. When we say "service" we are simply referring to the requirement that documents be provided to the opposing party(ies) in a case. Any time a document is filed with the Florida Office of Judges of Compensation Claims, that document is also to be provided to the other parties. 

The service requirement is in Rule 60Q6.108(1)(b) which provides:
Petitions for benefits shall be served on the parties as provided in Section 440.192(1), F.S., and copies of the petitions shall be served on counsel for the opposing parties, if known, at the time the petition is filed.
In the event a represented party files a pleading or other paper with the OJCC by electronic means, that party shall be required to serve the other party or parties, or their designated representative, with a copy of that pleading or paper simultaneously by electronic means, if available.

Rule 60Q6.108(2) provides further instruction on how service can be made. A document can be handed to the opposing party (perhaps you are with them at a deposition, hearing, or mediation), mailed, faxed or emailed. The real issue is not "how," but that when documents are filed, they should be provided to the opposing party as well. I receive a fair volume of communications that are not served on the opposing parties. 

The vast majority of documents filed with the Florida Office of Judges of Compensation Claims are served on opposing counsel by the e-filing program, e-JCC. That function is available when the parties are represented and when those attorneys that represent them have filed a notice of appearance in the case. Notice of appearance is mandatory, unless you have filed a petition in the case, see Rule 60Q6.104(1): 
All other attorneys appearing for a party in an existing case shall file promptly with the judge a notice of appearance and serve copies on all other parties or, if represented, the parties' attorneys of record 
Once a case is active in the e-JCC system, and if the attorneys have complied with the "shall file" requirement with a notice of appearance, then all filings should be able to be electronically served on all involved attorneys, and on the carrier or servicing agent. 

But, there is sometimes an issue when a case is new to the OJCC, and is first filed in e-JCC. There are only two ways to begin a new case in e-JCC, that is filing a petition for benefits ("PFB") or a request for assignment of case number ("RACN"). When a new case is started with these filings, obviously the other attorney(s) have not filed a notice of appearance yet, because there is no case yet in which it could be filed. To some, this may be the old "chicken and the egg" riddle. But, the Rules clearly require service nonetheless occur. 

When a new PFB is filed, the case is new and the opposing counsel has not filed a notice, that service on opposing may be accomplished by the e-JCC system. But, that would entail the nre PFB filer looking up opposing counsel's email on The Florida Bar website. If that is, the identity of opposing counsel is known (the filer knows a particular lawyer represents this particular employer, more common with in house counsel or county attorneys, etc. 

Nonetheless, Rule 60Q6.108(1)(b) requires service "on the parties" and "on counsel for the opposing parties, if known." This is not a suggestion, but a requirement ("shall"). Thus, every attorney that files a "new petition" should remember to serve defense counsel, "if known," and can consult 60Q6.108(2) to determine how. 

The vast majority of carriers and servicing agents are in i-JCC with email addresses, and so that service may be completed even when counsel has not yet appeared. After filing a document, the filer may use e-JCC for service. The registered carrier appears on that screen as a suggestion for e-service, and the filer may add other e-mail addresses manually. 

The requirement is no different when counsel elects to instead file an RACN. An RACN is a pleading. It is thus within the requirements of Rule 60Q6.108(1)(b), which apply to any "pleading or other paper" that is filed. An RACN is both a "pleading" and "other paper" filed with the OJCC. When an RACN is filed, therefore, it "shall be" served on the other "party or parties, or their designated representative." This is likewise not a suggestion, but a requirement ("shall").

These rules are essential to the Constitutional concept of due process. Due process requires that parties receive both "notice" and an "opportunity to be heard." It is in furtherance of this concept of "notice" that parties must provide each other with copies of the documents that they file with the tribunal. It is possible, and in some instances likely (see motion practice, Rule 60Q6.115) that a tribunal like the OJCC might take action in a case because of something a party files. Therefore, it is important that all parties are informed of such filings. 

The term "informed" can be a misnomer. We have seen instances in which a party will send an email to opposing counsel. These typically say something like "we filed a Request for Assignment of Case Number (or petition) this morning." And that information is certainly helpful. But, that email does not necessarily comply with the rules noted above. Those rules say that a copy of the filed document will be provided, that is it is "served." Thus, while a courteous note is likely appreciated, and it might lead opposing counsel to notice their appearance, it does not necessarily comply with the rule. The rule does not require "notification" or "information," but "service." 

The process is simple. It is unlikely that attorneys intend to fail to provide service. It is more likely that days are busy and that there is a complacency that comes from familiarity. The e-JCC system provides the opportunity for prompted and automated service for the filings that are made every day. Attorneys likely become used to that service in existing cases and therefore tend to take it for granted. But, attorneys need to remember that when a case is new, that is when a new PFB or RACN is filed, the information is not yet on hand for e-JCC to perform the service. Remember, that with a new PFB or RACN, that service will not be automated, and the attorney or party filing needs to remember that all important, ethical, legal, requirement of making service. 

And, even if they do make every effort and serve by email either through e-JCC or independently? There is always the chance that service will nonetheless be missed. Email software has been designed to identify messages it thinks you may not want. There are filters for spam and solicitation and cyber-threats. What if a message does not reach the inbox to be read? The answer is not so different from the Dark Ages before email. Back in the U.S. Mail days, sending a document was service. That remained true whether the Post Office lost, mis-delivered, or actually delivered the envelope. In other words, receipt was not the key, sending was. 

That remains true today. Counsel would be well advised to review the decision of the First District Court in Emerald Coast v. Bear Marcus Point, 227 So.3d 752 (Fla 1st DCA 2017)(October 26, 2017). The court there might have concluded its analysis on the grounds that notice was sent. A fair amount of legal precedent would support such an analysis. But instead, the court engaged in a lengthy analysis of whether an email was received, and why such email was perhaps not read. In the end, the court concluded that any lack of notice was not attributable to the sending party, and the fact the receiving party did not actually read the notice was not critical. Every lawyer should read Emerald Coast

So, how does one protect one's rights or the rights of a client? In the Florida workers' compensation litigation system, the answer is simple and direct. Each registered e-JCC user has a tool called "daily filings." This tool allows the user to review all of the documents filed in cases associated with (in which the lawyer has filed a petition or notice of appearance) that user on any particular date. That means any attorney can view a list of all documents filed on the attorney's cases for any date or date-range. This is a back-up, a "safety net," and regular use of it will prevent failure to receive or note service of any filed document. 

That "safety net" will not catch the "New PFB" or the RACN. Those are filed to create a case. And, as that case is thus new, there will have been no notice of appearance as yet by opposing counsel. It is this lack of a "safety net" that makes service by filing counsel so critical with new cases. Many diligent defense counsel and others are using the OJCC search function to find such new cases by either employer or injured worker name. But, the employer search is likely more sensible. Such diligence, and a periodic (monthly) search, may help to catch new cases in which filing counsel inadvertently failed to follow the rules and provide service. 

Emerald Coast illustrates that service can be misdirected. Human nature means that some initial pleadings (New PFB or RACN) might inadvertently not be served, particularly on the employer or on counsel. This puts the insurance carrier or servicing agent in a critical role. It may be the only one to receive notice. It is critical for it to inform the attorney that will represent it. Likewise, since e-service is not available for employers (though that is on the horizon), it is critical for an employer to contact its counsel and the carrier or servicing agent when a petition is received. 

Though the employer and carrier/servicing agent are thus postured to monitor for filings, defense counsel and others are well-advised to remain diligent with periodic searches. While this is an investment, and while it would be unnecessary if compliance with the rules were perfect, the investment is far less burdensome than the effort that could be required if such inadvertence went unnoticed and some dispositive order were entered. 

In that event, the case could need to proceed through a motion for rehearing, and testimony, perhaps an expensive appeal, and more, just as Emerald Coast did. And, all of that effort can be avoided with periodic checking through searches by employer name. If an inadvertent failure is found, a polite, concise email reminder to filing counsel would likely be appreciated. Notification of the assigned judge might well also be necessary in the event that orders have been entered prior to discovery. 

Avoiding missteps and errors is in everyone's best interest. The courts have repeatedly reminded that cases should be resolved on their merits. Issues of service, and notice can be avoided through diligence and the parties will thus be on the path to the merits, appropriate due process, and efficient closure of their issues.

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