Sunday, April 29, 2018

Judicial Bullying in the News

A couple of news pieces caught my attention recently, and a connection began to form in my brain. The first was through a tweet from @TheGIRLATTORNEY with a link to a blog post about workplace bullying. A key take-away from the author's thoughts is "bullying is actually four times more common than sexual harassment in the workplace." That prevalence estimate was surprising. And, bullying is not a new issue. The Florida legislature considered two bullying bills in 2013, Bullying is in the News, is it in the Workplace

I recently had a chance to speak to a convention about issues confronting workers' compensation today. My summary post for that presentation is here. I noted that "Employers will have to grasp that the work environment is critical to the engagement and perception of those who work there." How employers, supervisors, and coworkers treat employees is a critical foundation of the work environment. People who are bullied, harassed, or simply unappreciated will not harbor fond feelings toward work. When they are hurt, then ignored or further mistreated, their feelings may morph into dislike or worse. Getting such an employee to return to work will be a challenge. 

Don't we have enough challenges in this world of work injuries, medical care, physical and vocational rehabilitation, and return to work? 

The second story that fits in this theme, to me, is one about a judge (not a workers' compensation judge) in Broward County, Florida. The Miami Herald reported on the incident; a lengthier video is available at the Sun Sentinel. It reminds us that "Somebody's Watching Me." Coincidentally last week, a New Jersey Commissioner resigned after her tirade was caught by a police car dash-cam, and spread on the Internet. As I have noted before, we must all remember that cameras and video have become far more than ubiquitous. 

This story in Broward began when Sandra Faye Twiggs was arrested April 13, 2018, on a domestic charge. As an aside, domestic violence is a predominant issue in our society. Some contend that "about 60% of all adult arrest for interpersonal violence in the U.S." are domestic violence. In the decade 2006-2015, a U.S. Department of Justice study concluded that "1.3 million nonfatal domestic violence victimizations occurred annually." That is significant. 

Well, Ms. Twiggs was arrested and found herself before Judge Merrilee Ehrlich. Judge Ehrlich. According to BallotPedia, Judge Ehrlich was first elected in 2008, and re-elected in 2014. Judge Ehrlich was admitted to The Florida Bar in 1979, a graduate of Nova Southeastern University Shepard Broad Law Center. 

Ms. Twiggs was described by the press as "a frail, out-of-breath woman — pushed into court in a wheelchair." But she was not in court. She was pushed in to a room at the jail and appeared to the judge over a video link. The judge knew that video was being captured. 

The video begins with discussion of the defendant's status. The domestic situation involves the defendant, and her 18 year old daughter. Apparently, the defendant has filed a domestic injunction against this daughter's boyfriend, and there is some dispute between the defendant and her sister involving something unrelated. There is a fair amount of conversation here, between the judge and an attorney. The efforts of the attorney to explain appear to be well-intentioned, but are forsaken by the judge. 

The judge then asks "does your daughter live with you," which Ms. Twiggs answered. And, which she then proceeded to explain. The judge interrupts with and emphatic "ma'm," "don't say anything beyond what I am asking you." The judge speaks to Ms. Twiggs' attorney: "will you say something counsel, in the microphone, so that she can hear you and you can give her instructions?" The judge emphasizes: "I'm not going to spend all day with her interrupting me." Ironically, some might conclude that it was the judge interrupting Ms. Twiggs. When counsel does not immediately respond, the Judge says "It's your turn to speak counsel." This comment appears to be at least sarcastic, and some might say caustic. 

Later the Judge tells the defendant "you've already said too much," and admonishes her "listen please!" The judge does some arm waiving, and is clearly frustrated with the situation. The defendant was released from jail. She passed away days later in her sleep, apparently related to her asthma and chronic obstructive pulmonary disease, according to the Herald. Reportedly, she experienced difficulty obtaining her medications while in jail. She had wanted to explain those difficulties to the judge. 

The Broward Public Defender, Mr. Finklestien, complained to the chief judge of the Circuit. He described the judge as "aggressive and tyrannical." The Judge was removed from hearing cases as a result. She had previously announced an intention to retire this summer. However, the judge reportedly resigned following publicity of this video. 

There are lessons here. First, technology can be frustrating. With telephones, an early bench lesson for me was that when the speaker is being used (the other party is speaking), the microphone is muted automatically. Thus, when the other party speaks, there is no way to interrupt or interject. That is frustrating as the conversation lacks both facial expression and easy interaction that we get face-to-face. 

Second, this is not nearly to the degree of behavior demonstrated by "Florida's fighting judge," Brevard Judge John Murphy, as described in The Washington Post. That interaction involved demeaning and threatening, but then devolved into physical violence. Though the Ehrlich example did not rise to this level, it demonstrated frustration, emotion, and impatience that is simply not that for which we strive. Interpersonal interactions can be stressful, but should not lead to such exhibitions of frustration. 

Finally, this reminds me that people have a need to express themselves. I try to remind lawyers, mediators, and judges of this. People experience life, whether a domestic encounter or a workplace accident. They often want to tell someone about it. Too often, they want to include tangential elements, potentially irrelevant references, and confusing anecdotes or recollections. But, they are compelled by their nature to want to discuss it. I recall a lesson in this from my days in private practice. 

A long time ago, in a galaxy far, far, away, I sat with a man who had suffered a fall at work. The issue in the case was legal, not factual. Everyone knew he fell, and everyone knew he was hurt. Whether one entity was a contractor and another was insured and whether an indemnification agreement would change who would ultimately pay, all made for really interesting lawyer to lawyer discussions. 

Not to be left out, the injured workers kept trying to interject, only to be told by his attorney that "this is not the time." He became agitated and eventually raised his voice, demanding our collective attention. He then rambled on for minute after minute about his life and livelihood years before. His speech was about dreams and aspirations from his youth, disappointments of career, frustration over medical science, and anger at a system he did not comprehend.  

I was admittedly frustrated with his interruption and his speech. He accomplished nothing, convinced us of nothing, changed nothing. When he finished, the lawyers returned to a fascinating conversation about the law and the questions in that case. But, we were free to do so without further interruption. The worker had said his peace. 

Later, a wizened workers' compensation attorney in the case offered me advice. He had sensed my frustration, and told me you can never forget the power, the catharsis, of saying your peace. People who face uncertainty, unfamiliarity, and change feel threatened, cornered, and scared. They will be better able to accept and absorb if they are allowed to express themselves. 

I learned a lot from that old lawyer. And, not just in that circumstance. But on that occasion, I learned that there is value in accommodating the natural need to vent, to express, and to explain. It may not be relevant, persuasive, or even comfortable to the listener. It may be perceived as a waste of time to the listener. But, to the speaker, it may mean the world. It might have meant the world to that lawyer in Broward or the defendant who wanted to discuss her medicine challenges in the jail. Perhaps none of it was relevant to the domestic violence, and would not perhaps have changed the judge's decision, but it might have meant the world to the speakers. 

Try to remember that the next time someone wants to get something off their chest. It may help them to cope with challenges, or even bullying in the workplace, frustrations with their work accident, or just circumstances of life. You never know what someone else is going through, unless you chose to listen. And thankfully, listening costs you nothing but a few minutes of your time, at work, at home, or in court. Think of it this way, anyone can chose not to be a bully. But, by being the listener you can maybe likewise chose to be the anti-bully. I commend it to you.

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