Thursday, November 29, 2018

Time is Critical

In October, the Mississippi Court of Appeals published Emmanuel Ridge Community Services Inc. v. Loggins, --- So.3d ---; 2018 WL 4870914 (Miss. Ct. App. 2018)(NO. 2017-WC-01624-COA). It is a case primarily about about time, and there are lessons to be learned from that aspect. It also appears to be about diligence in a broader sense, and that is worthy of examination as well. 

In Emmanuel Ridge the injured worker prevailed in her petition seeking workers' compensation benefits. The employer was dissatisfied with the result and sought review by the Workers' Compensation Commission. In Mississippi, as in many states, there is an administrative level of review before a party may invoke the jurisdiction of the appellate court. 

The Commission noted that the "petition for review" was filed with it on October 10, 2017, twenty-one days after the administrative law judge had awarded benefits. The Commission deemed that filing untimely and dismissed the appeal. Emmanuel Ridge appropriately filed a motion for rehearing. That process is appropriate because it allows for correction of any overlooked facts or misapplication of the law. This encourages correction of error prior to invoking the appellate court jurisdiction. Errors should be corrected as early in a proceeding as possible. That prevents wasting of judicial resources at the appellate courts. 

In Florida, the parties at trial are obligated to raise issues with the trial judge. They must "preserve error" in order for it to be later considered by the appellate court. This generally means a party is obligated to object at trial. And if the error about which there is concern is first evident from the trial order, the aggrieved party is obligated to raise that issue with the trial judge by motion for rehearing. If the party fails to do so, that may be grounds for dismissal of the appeal. See Hamilton v. R.L. Best Intern., 996 So. 2d 233 (Fla. 1st DCA 2008). 

In Mississippi, the statute requires that a "petition for review" is filed within twenty days. The petition in Emmanuel was filed twenty-one days after the trial judge's decision was rendered. The Commission therefore dismissed the appeal and the employer then sought review by the Court. The Court noted that this time limitation "is not merely procedural." The requirement is "jurisdictional," meaning that “if the notice of appeal is not filed within twenty days, the Commission does not have jurisdiction to hear the matter.” There is an exception to that legal requirement if the Commission finds “unique facts which would permit [the] petition to be considered constructively filed.” 

Until this point, one might struggle to understand why the employer either sought Commission rehearing or review by the appellate court. The law requires the notice within 20 days and in this instance it was clearly not filed within that period. But, the argument Emmanuel raised is factual. It argued to the Commission that its October 10, 2017 filing should be deemed timely because October 9, 2017 was a holiday, Columbus Day. 

The Court acknowledged the holiday, but explained that Columbus Day is "not a legal holiday." As a result, the Commission offices were open for business on October 9, 2017. There was no factual impediment to filing the petition within the statutory deadline, and thus it was untimely, regardless of Columbus Day. The situation might be different if one of the days in that 20 day period had been Labor Day, Martin Luther King Day, or Thanksgiving and the Commission office had been closed. 

But the decision is also broader in its criticism of diligence. The Court also noted that Emmanuel failed to support its argument seeking reversal. In many settings, the failure of a party to make a substantive argument, supported by authority, can be fatal to the party's cause. In Florida, there is ample appellate authority that holds it is the party's obligation to be specific as to arguments and to cite specific authority in support of its arguments. There is also, unfortunately, other authority in which the appellate court has conflated that requirement and insinuated some duty on the part of the trial judge to perform the party's research for them. The lack of appellate consistency in this regard is lamentable. 

The Mississippi court noted that "Emmanuel Ridge does not cite any authority in support of" its argument of timeliness. It reminded that in Mississippi “failure to cite any authority is a procedural bar, and this Court is under no obligation to consider the" arguments of error by the Commission. Essentially, the Court could have affirmed the Commissions dismissal of the "petition for review" merely because Emmanuel cited no authority in its argument. That seems logical and functional. Some would argue such an obligation on the parties is appropriate. 

The issue of timeliness occurs periodically in Florida workers' compensation disputes. There are some some who misconstrue the legal authorities regarding time constraints. Others, misapply the requirements of irrelevant rules or laws, to their detriment or the detriment of their clients. Attorneys and parties alike should remember the calculation of time in Florida workers' compensation disputes are controlled by the Rules of Procedure for Workers' Compensation Adjudications

Certainly, those rules are not the only litigation procedural rules in Florida, but they are the procedural rules for the Office of Judges of Compensation Claims. Too often, parties or lawyers will cite the provisions of the Florida Rules of Civil Procedure or the Florida Rules of Judicial Administration in support of their timeliness arguments. While it is possible for these rules to influence workers' compensation proceedings, that influence is only permissible if the Rules of Procedure for Workers' Compensation Adjudications provides therefore. In the absence of such specific adoption or implication, the Florida courts cannot make rules for this administrative process. 

Generally, the Florida Courts have no authority to dictate process and procedure for the Office of Judges of Compensation Claims (OJCC). This, as explained by the Florida Supreme Court in Amendments to the Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004), is because of the "separation of powers" in the Florida Constitution. The Florida OJCC is part of the executive branch. The Courts have authority to dictate process and procedure in the courts, the judicial branch, but not the executive branch. 

That does not mean that the executive branch cannot elect to follow court rules, it merely means the OJCC is not compelled to do so. The Florida Rules of Civil Procedure are applied in some instances in workers' compensation proceedings because the Rules of Procedure for Workers' Compensation Adjudications say so. See Rule 60Q-6.114. The Florida Rules of Judicial Administration are similarly applied in some instances, but also because the Adjudication rules say so. See Rule 60Q-6.126. But those rules have no general application in workers' compensation disputes. 

It is therefore important for practitioners and parties to understand that timeliness under the Rules of Procedure for Workers' Compensation Adjudications is determined by reference to Rule 60Q-6.108, Rule 60Q-6.109, and others. These explain when time is extended based upon the use of U.S. Mail or electronic service, explain the effect of weekends and holidays in calculating times, and even provide specific definition of what is and is not a holiday by reference to section 110.117, Fla. Stat. Which, coincidentally, does not include Columbus Day either. 

Familiarity with the Rules of Procedure for Workers' Compensation Adjudications is critical. Failure to comply with time requirements in rules or statutes can affect the rights of parties before the OJCC. It is also important to remember that any proceedings before the Florida appellate courts is similarly controlled by the Court's Florida Rules of Appellate Procedure. And like Mississippi's requirement for filing is "jurisdictional," so is the Florida rule that an appeal must be filed withing 30 days or the Court cannot hear the case. See Florida Rule of Appellate Procedure 9.180(b)(3); Troche v. BJ's Wholesale Club, Inc., 954 So. 2d 685 (Fla. 1st DCA 2007).

Familiarity with the rules is a matter of diligence. Researching and presenting authority in support of the advocated outcome is a matter of diligence. And in the end, diligence is a matter of professionalism and due care. Lawyers owe their clients both competence and diligence.


Tuesday, November 27, 2018

Tech is Changing Work

A couple of recent articles on the workplace caught my attention. There are employees seeking better working conditions, and others concerned that their jobs will disappear. The two concerns may be discreet and unrelated, but it is also possible that one might see them related. Business is driven to be interested in the "bottom" line," and that is a financial consideration. In The Coming Automation, the cost/benefit analysis of investment in automation is discussed in some detail. 

Reuters recently reported that Walmart to pay $65 million to settle lawsuit over seating for cashiers. The case is Brown v. Walmart Inc, U.S. District Court (Northern Dist. CA), No. 5:09-cv-03339. The workers in this lawsuit were troubled that their cashier jobs involved standing virtually the entire shift. The business allowed "cashiers with medical conditions or disabilities," to have stools to sit on at their work stations. It also afforded store managers "the discretion to provide stools to cashiers on a case-by-case basis." But, as  general rule, the cashiers had to stand throughout their shift. 

Reuters reports that this litigation is not necessarily innovative. It reports that multiple other businesses have been sued for not providing employees with seating. These include "Bank of America, CVS Health Corp, JPMorgan Chase Bank, Kmart, AT&T Corp and Home Depot Inc." Interestingly, the LawProf blog recently reviewed "new scholarship" regarding the risks of sedentary workplaces. The scholars noted therein advocate increased socialization of health risks associated with lack of activity, including stand-up desks so people can sit less. It is almost dizzying that one might be liable either for making people stand or making people sit. For some reason, the Alan Parson's Project is stuck in my head. 

The cashiers sued, citing a "California regulation that requires seating for employees 'when the nature of the work reasonably permits.'” The procedural tool used is "California’s unique Private Attorney General Act." This appears to be similar to a "whistleblower" statute, that "allows workers to sue their employers on behalf of the state and keep one-quarter of any money that they win." If attorneys fees are 25% to 33%, the recovery per employee in this instance might be $400 to $500 each.


Courtesy Kioskmarketplace.com

The self-check-out kiosks that are becoming ubiquitous in retail neither want nor need stools. A search of the Internet did not reveal a single case of such kiosks filing lawsuits against any business regarding the conditions in which the kiosks worked. Some suggest that these kiosks will become more prevalent in coming days. They are appearing now at fast food, check-ins (airlines, doctor's offices), even in the rapidly growing dope business. They have long reigned in banking

CBS News recently reported that Striking Marriott Workers Job Concerns Center On New TechnologiesThe story is from Boston, and reports that there is concern of "robots delivering room service, check-in kiosks with facial recognition technology and 'smart' speakers that serve as an in-room concierge." That last item perhaps no different than the Siri found on so many phones or the Echo or Alexa. 

It seems that hotels are embracing the digital age, robotics, and artificial intelligence. Employees are not adverse to technology, but they want it to make their jobs easier. They do not want it to eliminate their jobs. The potential for implementation of these technology solutions is leading to anxiety among the workforce. And they are therefore striking, seeking input regarding the implementation of changes to the workplace. 

There is a desire for employment to continue, whether the business needs particular workers or not. The striking employees are seeking to protect housekeepers as demand for their services diminishes. On a recent four-night trip, I opted out of having my room cleaned on each night. I am capable of picking up after myself, and simply do not need the room "refreshed" daily. And, the hotel awarded me "points" on my frequent traveler account in exchange for declining the daily bed-making and straightening (little "cleaning" is done on an occupied room). That trend apparently concerns workers as well. 

Employees are a means to an end for business. There is a great trend toward recognizing the contribution of employees, with some businesses referring instead to "associates" and "team members." But, at the end of the analysis, the question is whether a person or persons bring value to the business and its customers. So long as the customer perceives value, and is willing to consume the business' goods or services, then those businesses will perceive value in the employee. 

However, it is unlikely that employees can force employment for the sake of employment. As kiosks and automation continue their march to primacy, employees will have to bring value to the economic exchange that is being made between customer and business. An associate recently recounted an interaction at a somewhat famous fast food outlet that offered kiosks for ordering. This person disregarded the kiosk because "I believe in people and like ordering from a person." But, the person that she/he encountered at the counter turned out to be surly, rude, and slow. The "people" championing customer assured me that the next time around the kiosk would be used instead. 

It recurrently seems that technology takes jobs. The typing pool died at the hands of word processors, many accounting clerk jobs were replaced by spreadsheets, and manufacturing jobs have been replaced by robotics. These effects can be stated in many occupations. The fact is that progress and technology affect employment. 

Employers will likely be influenced by the value that employees bring to the customer. And there will likely be influence affected by cost. The cost of an employee versus the cost of a kiosk. It may be that the ability of a kiosk to work without need of a stool, or alternatively a "stand-up desk," and the cost savings related to that will figure into decisions as well. Employees may be able to influence through lawsuits and strikes. However, employees' best tool of influence will be in the value that they bring customers (hint, "surly, rude, and slow" is not the right answer)

The future is coming for us all, and it is really a question "when" it impacts our occupations, not "if." If change is gradual, then attrition may ameliorate the impact that these changes have on particular individuals' employment, income, and lives. However, the fact is simple: change is coming, jobs will be eliminated, and people need to figure out now how to adjust and evolve. Like it or don't, we all need to understand change and figure out how we each bring value to our customers.  


Sunday, November 25, 2018

Mental Health and Recovery

CBS News recently reported Mental Stress Mounting in Florida after Devastating Hurricane Michael. The story reminded me of reactions to previous disasters, and that there is a broader application of approaching people. 

The story notes that some in Panama City have "a hard time explaining the stress of living" after Michael. They relate feelings about their surroundings, and the lack of familiarity that can come with a Category 4 rearrangement of things. One is quoted as feeling the community no longer "feels like home," and that she does not "feel real" herself. 

Health workers are quoted as "seeing signs of mental problems in residents." They note that "in any kind of disaster what we find is that people have been exposed to circumstances that are well beyond what they normally deal with day to day." There is shock, feelings of being overwhelmed, and heartbreak. 

Feelings may be exacerbated by the realization that rebuilding and restoring "could take years," just as it has in other communities suffering similar events. Some experts opine that psychological reaction to such disasters may be "widespread" and "long-lasting." They note subjective reporting of "psychological effects" "five years after" Katrina, where "parents reported more than 37 percent of children had been clinically diagnosed with depression, anxiety, or a behavior disorder." 

In part, some hypothesize, that "parents are overwhelmed and are less able to buffer their children from bad experiences." And, "children look to their parents for cues as how to respond to completely new and frightening situations." Thus, it may be that to some degree it is possible that how professionals and processes continue to function after a disaster may influence how the public perceives their community and its progress back to normalcy. 

The article assures that "most people will be back to where they were within a year or so." That is good news for that majority. However, one expert quoted warns that "others will have difficulty for a longer period." In short, the road home from a disaster like this is a personal road. Different people will react and recover differently. 

Already, there are efforts in some areas. A recent high school football game was intended to "re-establish the familiar patterns of life, to 'create normalcy.'" Some quoted in the article claimed to be buoyed by that effort. There are reports of optimism, and belief that community will move forward working together. "It's a really sad thing for this to happen, but it's brought everybody together," she said. "It's going to make this town a bigger and better place." 

As regards mental health, the nature of disaster is perhaps distinct in that some come with warning, like a hurricane, and others less, like a wildfire? But, the destruction and the stress likely also have similarities. It is difficult to think about the recovery in progress following Hurricane Michael without thoughts also for those in California's major recent fires. 

Several articles about the mental health of survivors are worthy reading. Yes focused on the uncertainty and unpredictability. It describes the process of delivering "psychological first aid," a practical approach to working with people's reactions to a problem. The predominant issues are feelings of being "overwhelmed and anxious," and there is suggestion that perceptions of lacking information is a critical point. That may refer to uncertainty about the present, but also perhaps about the future, the recovery, the rebuilding of lives? 

A 2017 blog post on California wildfires is a well written overview of psychological effects of both wildfire and hurricane. It encourages consideration of our natural instincts and reactions, and suggests that psychological needs may be different in the immediate aftermath than in the long-term recovery. To the sense of loss, there is potential for similar stresses from the fact that change occurs, new housing, new job, new schools, etc. This piece expresses opinions that fires present a "potential for loss (that) is so much greater." That expert, perhaps, has never visited or viewed somewhere like Homestead or Mexico Beach, Florida. 

Mental health is often seen as a treatment issue. It is near certainty that a variety of people will require treatment post-disaster. However, there may be things individuals can do that are independent of professional treatment and yet helpful. Boulder County, Colorado recognizes the mental health challenges of disaster like wildfire, and offers tips for those seeking to recover. Two of the best, in my non-professional opinion, are "spend time with other people so that you stay connected," and "talk to a trusted friend or adviser about what you are feeling." The entire list is worthy of reading and consideration. 

Maybe it is easier when the cause of anguish or uncertainty or doubt or fear is shared? Perhaps there is comfort on that road home when people see fellow travelers, like that community football game? But, the gist of the CBS News article is that people will react and recover differently. 

And in that context, perhaps a personal setback like a work injury is not that different from a community setback like a hurricane? Maybe that is why so many see benefit in communication with injured workers? Perhaps this reinforces the benefit in sharing factual and realistic information with injured workers, about the injury, the probability for treatment success, the prognosis for ultimately regaining function and health? Can better, readily available information alone reduce doubt and stress? Can communication and explanation alone help? 

Maybe everyone's road home is capable of being personal and each a little different from the next? But, as possibly, perhaps everyone's path can be aided by simple compassion, communication, and community? I am no mental health professional, but these discussions seem to suggest that such support is at least worth a try. If you know someone hurt at work, impacted by a hurricane, fire, flood or other disaster, what does it cost (time) you to reach out and recognize their potential need? What does it cost to simply listen to them? How hard is it to simply let someone know you think about them and care enough to reach out? 

Compared to your potential to support them, it seems the cost is inconsequential. Shame on us all for not doing it more.






Thursday, November 22, 2018

To Do Equal Right

The news this week noted "criticism of a federal judge" by the President of the United States (POTUS). This was followed by commentary delivered by the Chief Justice of the Supreme Court of the United States (SCOTUS). A British Broadcasting Company (BBC) story noted Justice Roberts' public comments, and characterized it as an "extraordinary step, of rebuking President Donald Trump's criticism of a federal judge."

The POTUS criticism characterized a federal judge as "an Obama Judge." Justice Roberts' perspective is that "we do not have Obama judges or Trump judges, Bush judges or Clinton judges." Instead, the Chief Justice perceives that the federal judiciary "is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them." The contention  or implication is seemingly that there is no politics or political leaning in the U.S. Federal Courts. 

Though not referenced in that BBC story, the BBC published coverage of the recent SCOTUS appointment in September. The BBC there questioned "why is the US top court so important?" The BBC concluded that the conflict and controversy regarding the appointment of Brett Kavanaugh was attributable to "the immense impact the US Supreme Court has on US political life." It noted that SCOTUS "is often the final word on highly contentious laws." Furthermore, that it resolves issues in disputes "usually brought to the court after they are appealed from a series of lower courts." Thus, the federal courts involved in the discourse this week between POTUS and the Chief Justice. 

In October, the BBC returned to SCOTUS coverage with "Why US top court is so much more political than UK's." That headline, itself, is perhaps a fairly direct expression of a perception of the SCOTUS. This story, in part, repeats portions of the September article verbatim. Then, reaching back to Dred Scott v. Sandford, 60 U.S. 393 (1856), the BBC expresses conclusions that the SCOTUS has evolved into a "partisan court," noting "evidence" for its conclusions but citing mostly opinions. The evolution, it contends, began in 2010. And, the BBC quotes one scholar concluding "Politicisation of the Supreme Court causes the American public to lose faith in the Court."

In 2005, John Roberts was nominated to serve as Chief Justice. CNN reported on his opening comments delivered at the outset of the Senate confirmation process. Justice Roberts spoke of "humility" in service and the "judicial role." He opined that "judges and justices are servants of the law, not the other way around." He compared judges to umpires: "umpires don't make the rules; they apply them." He reminded us that "the role of an umpire and a judge is critical. They make sure everybody plays by the rules." Not  just "justices," the job about which he was then specifically focused, but "judges and justices" in general, and "judges" as regards that impartiality. This inclusive statement is worthy of focus.

Chief Justice nominee Roberts reminded us that "nobody ever went to a ball game to see the umpire." We judges are not the attraction, and we should not be. We are functionaries (note that will likely garner criticism; some will misinterpret that as deprecating judges generally,  and for that I apologize in advance). We must, nominee Roberts said, "have the humility to recognize that they (judges) operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath." In short, our role is to follow the law not to make the law. We judges thus have a mandate, a purpose, and a touchstone. 

But, we have perhaps a dichotomy of perspectives. Why did a Chief Justice nominee expound on the judicial role? Why is there a need to remind Senators, or perhaps all of us, of the judicial role of calling balls and strikes? That role was called back to the commentary during the nominee Kavanaugh hearings this year. A major league umpire wrote in The Washington Post of his role that "personal integrity and respect for the game are at stake." Therefore, he says, "when you put on your uniform, you are supposed to leave all your subjective feelings in that dressing room."

He takes issue also with the Chief Justice umpire analogy, claiming that it oversimplifies the umpire's job. He stresses that "there are many intangibles when it comes to calling balls and strikes." The Umpire explains perspectives on observing pitches, the speed of the ball, and the actions of the batter (any swing, a "full swing," etc.). He contends that observation of "critical adjustments" that occur in "thousandths of a second" is his obligation, as are a variety of other determinations throughout the field. With due respect, his explanation of how being an umpire differs from judging simply reinforces the analogy to me, and causes me to doubt that he knows as much about being a trial judge as he might think. Having presided hundreds of trials, there are similarly a multitude of obligations for the judge. Those include the breadth of hearing room, process, dignity, witnesses, parties, attorneys, and more. 

So, we return to the controversy in this week's POTUS and SCOTUS exchange, as to whether there are or are not "Obama judges or Trump judges, Bush judges or Clinton judges." One might wonder why the news media finds the history of a judge's appointment relevant? Last week, The Washington Post reported on a dispute between POTUS and a CNN reporter, noting that "Kelly, whom Trump appointed to the federal bench last year, handed down his ruling." In February, Brietbart similarly reported on Deferred Action for Childhood Arrivals (DACA) describing "Judge William Alsup from a federal district court in that state, appointed by Democratic President Bill Clinton." These are two examples, but such statements may exist in other contexts. Is there at least a perception that the news media finds relevance in who appointed a particular judge?

Perhaps people see disputes and debates about judicial nominees from different perspectives. It is possible that some see relevance in the history of a particular judge's appointment. The coverage from afar, the BBC after all brings a perspective from across the pond, appears to accept that the SCOTUS "is so much more political than UK's" highest court, and that it has "immense impact" on "US political life." Whether any of that is true is left to the reader. The point, from my perspective, is that at least some appear to have perceptions of a court or courts in a political perspective. That is, a perspective that there is at least some, however minute, potential for decisions that are influenced or impacted by more than the facts and law in that case. 

Is that a product of years of news stories that focus upon a judge's origin (by whom appointed or by what past experience)? Is that a product of descriptions or discussions that focus attention upon the law, the precedent, and the logic of various decisions? Do we get enough critical detail of the law and logic when decisions are described in the press? Is it possible that Americans have been acclimated to perceptions or allegations of courts or judges that do not remain true to Chief Justice nominee Roberts'  admonitions for "humility," for "service," that we are "servants of the law," "umpires" that follow and apply the rules? Is it possible that the public perceives us differently than we perceive ourselves? And, should we be interested in their perceptions regarding the impartiality and integrity of this vocation and profession in which we engage?

It is likely this post will draw another "what does this have to do with workers' compensation" response. I hear that periodically. I lament that some perceive the legal process as subject to categories or "silos." The fact is, that when a physician accidentally removes a healthy kidney, it affects the public trust in a broader population than just a particular Florida surgeon. That news coverage might cause some people to doubt their own doctor, whether that is fair or not. 

And, when the news, commentators, Presidents, Chief Justices, or others discuss the function and performance of judges, that discussion affects all judges; it affects the law itself and those of us who are "servants of the law." Though I am at the foundation of that pyramid, a trial judge by trade, It is possible that these discussions affect all judges. Perhaps we have a singular potential to reassure the public or our judicial function. 

Perhaps, as the Washington Post umpire suggested, we need only remember that when we take the bench, every time we take the bench, that "personal integrity and respect for the game are at stake." We may be the subject of scrutiny. Our behavior, our demeanor, and the clarity and completeness of our rulings will be critical. They will be critical every day, whether we think anyone is watching or not. Let's remember to strive "to do equal right to those" who need us. 

Tuesday, November 20, 2018

Who Ya Gonna Believe?

In Duck Soup, Chico Marx, disguised as Groucho Marx says "who ya gonna believe, me or your own eyes?" A recent decision from the Florida Supreme Court supports that a judge, and even an appellate judge, is free to believe her or his own eyes, in some circumstances. However, the careful adjudicator will nonetheless recognize limits on that license.

The era of technology is upon us. Video is past ubiquitous, see Evolving Issues with Body Cameras. The implications of video were recently demonstrated by the Florida Supreme Court in Wiggins v. Florida Department of Highway Safety209 So.3d 1165 (Fla. 2017). The case involved a driver accused of driving under the influence of alcohol. The driver refused to submit to a sobriety test and a drivers' license suspension followed. The driver appealed the administrative hearing officer's decision to the Circuit Court, which reversed based upon the Circuit Judge's review of video evidence demonstrating the vehicle operation that led to the traffic stop. 

The decision in the case is intriguing, first because a drivers' license suspension merited review by the Supreme Court. There is a perception that small issues do not make it to that altitude. But, it is also interesting because the hearing officer upheld license suspension, the Circuit Court reversed suspension, the Florida First District Court upheld suspension, and ultimately the Supreme Court reversed suspension. These outcomes, like the back and forth on a tennis court, are intriguing. Beginning with an August 2011 traffic stop and ending with a 2017 Supreme Court decision, this demonstrates challenges with the legal process. The average observer might well be fascinated. 

The appellate process is governed in large part by "standards of review." When an appellate court is faced with a dispute about what a law says, about a "question of law," it provides no deference to the lower tribunal(s) interpretation. Its review is "de novo," meaning "over again" or "anew." But, when an appellate court is faced with a question of fact (did he or didn't he, was it or wasn't it, etc.) the standard of review is a question of whether "competent substantial evidence" supported the conclusion of the trial adjudicator. There is more deference afforded by the Court regarding the facts than the law. 

In Wiggins, there was disagreement between the testimony of the arresting police officer and the video recorded by the police vehicle dashboard camera (the arresting officer failed to activate a "body camera" during the interaction with the driver). The Court noted that the recording was thus limited to video without the audio component (the only activated microphone was inside the car). 

The arresting officer testified that the "the vehicle appeared to swerve." Further, "that Wiggins drifted within his lane, traveled thirty miles per hour in a forty-five mile per hour zone, and crossed over the outside lane line—nearly striking a right-side curb before swerving back into his lane," “braked hard for no apparent reason and then accelerated back to about 30 miles per hour.” There was thus detailed testimony regarding Wiggins' driving. Wiggins declined a field sobriety test, and was arrested for driving under the influence. The refusal of testing led to his license suspension, which he appealed to a hearing officer. I am periodically surprised how few understand that such an appeal of an "automatic" suspension is possible. 

At the hearing, the arresting officer "admitted that there were inconsistencies between his arrest report and the video" evidence. Despite this, the hearing officer accepted the officer's interpretation of perceptions during the stop and arrest over the illustration on the recording itself. The Supreme Court "embedded" that video into its opinion: (https://efactssc-public.flcourts.org/CaseDocuments/2014/2195/DashVideo.wmv).

The Court's action in that regard, is likewise somewhat novel and interesting. In the vast majority of legal opinions, a reader is left with what a court perceives and describes. The pictures of a crime scene or video of the traffic stop is not a usual part of the written opinion in this manner. The publication of such evidence, in a publicly accessible method is innovative, a result in part of the digital age in which we live (that we can do it effectively).

The Court concluded that
"video showed Wiggins driving totally within the proper lines. Wiggins did not cross any lines, nor did he nearly hit the curb. Wiggins did change lanes only once in an apparent attempt to clear the lane for Saunders, but he utilized his turn signal before doing so. Wiggins then activated his turn signal to move into a left turn lane, braked in preparation to turn at a traffic light, and made a normal left turn once the traffic light turned green."
The video, according to the Supreme Court, "totally contradicted and refuted the testimony and arrest report of" the arresting officer. Despite this, the license suspension was affirmed by the hearing officer, relying upon the testimony of the officer rather than upon the video evidence. 

Wiggins appealed that decision to the Circuit Court. That court "recognized that . . . it was not permitted to totally reweigh the evidence de novo." It's job was to determine if competent evidence supported the hearing officer's decision, not to view the evidence and make new determinations in weighing evidence. But, concluding that "the objectivity and neutrality of the video evidence placed the circuit court in the same position as the hearing officer," the judge reviewed the video and concluded it "refuted both the arrest report" and the arresting officer's testimony. The Circuit Judge concluded that the officer's testimony was therefore not "competent, substantial evidence," and concluded "it was unreasonable as a matter of law for the hearing officer to accept the report and the testimony as true."

The First District Court of Appeal reviewed that decision. It concluded that the Circuit Court had "essentially reweighed the evidence," contrary to the requirements of the law. The First District afforded the hearing officer's conclusions "deference because she is experienced on such matters and heard the live testimony herself." The District Court reversed the Circuit Court and instructed the Circuit Court to "apply the law," rather than reweigh the evidence itself. However, the District Court also certified to the Supreme Court that the questions presented were "of great public importance," which is one method by which the Supreme Court may gain the jurisdiction to review a decision. 

The Supreme Court noted that "video evidence has become increasingly prevalent" in some proceedings. This evidence has an "objective nature" that allows review in the appellate process "without the need for interpretations of the hearing officer." Essentially, the Court concluded that truth, like beauty, may be "in the eye of the beholder." 

In light of the "reality of human imperfection," the Court concluded that "a judge who has the benefit of reviewing objective and neutral video" as in this setting "cannot be expected to ignore that video evidence simply because it totally contradicts the officer's recollection." The Court concluded that not reweighing the evidence in this setting "would produce an absurd result." But, the Court specifically held that the review of the evidence and decision not to accept the officer's testimony was not "a reweighing of the evidence." Instead, the Court concluded 
"the circuit judge here did not engage in a reweighing of the evidence, but rather, determined that the contradicted testimony of the officer was not sufficient to amount to competent, substantial evidence."
This distinction, if it is one, will not sit well with all observers. The Court suggested that more deference might be due the hearing officer, had the evidence contradicting the officer's testimony been other testimony or documents, a credibility issue or at least a dispute with less objective clarity. But here, the Court noted yet again, the contradictory evidence was "objective and neutral video." Such evidence can, in Florida, now render eyewitness testimony "to be not 'competent, substantial' evidence." 

A dissenting opinion suggests that the video and the testimony of the arresting officer are each "competent, substantial evidence." Therefore, the "circuit court went beyond" the appropriate scope of review in "reweighing of the evidence." This essentially agrees with the First District decision. This dissent urges that "this is not a case in which video evidence indisputably establishes the controlling facts" and therefore that there is conflict in the evidence that must be reconciled. It takes issue with the Court's conclusion that the video utterly and patently contradicts the officer's testimony. The dissent argues that this reconciliation of conflicting evidence is the job of the hearing officer and not the appellate process. 

The dissent urges that "just like any other type of evidence, video is subject to conflicting interpretations.” (citations omitted). An example is described in which two United States Supreme Court Justices expressed distinct and contradictory interpretations of a particular video. Might two reasonable persons view a video and disagree regarding what it portrays? That hearkens perhaps to the "beholder" adage cited above. Time will tell whether the Court's decision regarding the infallibility of video stands as Florida law or whether the dissent's "interpretation" argument gains acceptance with time. What is seemingly beyond debate, is that cameras will continue to proliferate and therefore recordings of events likely will also. 

Where might this impact workers' compensation? Certainly, there is the potential for a dashcam to be implicated in some cases. But perhaps more likely for premises security cameras to contradict testimony: of what happened and when, of who was present at the time of accident/injury, and more. Perhaps there are implications for those who would video a medical examination, physical therapy session, or functional capacity evaluation? And there is always the potential for surreptitious surveillance video obtained in the course of someone's pursuit of workers' compensation benefits. 

I recall an intriguing case years ago where a client had experienced issues with disappearing time cards. Its solution was a surveillance camera that focused on the hallway (entrance/exit) in which the clock and cards were kept. The video was reviewed whenever a time card issue arose, and rarely otherwise. Following a reported arm/shoulder injury, a manager reviewed the recording to see whether the employee favored his arm when he clocked-out and left work the day he claimed to have fallen. That demonstrated him clocking-out with normal movement and pace. 

But, seconds after clocking-out it showed him stopping to purchase a soda from a machine in the hall. When the machine failed to dispense as desired, the recording showed the employee shaking the vending machine, then repeatedly hitting it with his forearm, and eventually repeatedly ramming his shoulder into it. He then walked out of view holding his arm gingerly. That case was denied, and never proceeded to hearing. But, if it had a judge might well have believed the workers' reported fall at work, and found the injury compensable. In that hypothetical setting, should the appellate court view the recording, or rely upon the trial judge for that reconciliation of testimony versus video? The Supreme Court in Wiggins suggests that such appellate review and independence would be absolutely appropriate. 

Will appellate courts become increasingly prone to review of such video, or at least willing to view "objective and neutral video?" Will the willingness question depend upon the determination that particular video is indisputable and subject to one interpretation only? Or, as illustrated by the United States Supreme Court case argued by the dissent, will the persuasiveness of video always be in the eye of the beholder, as is beauty, or so we are told?

Some will perhaps argue that the Wiggins majority has conceded the dissent's "interpretation" argument by publishing the video as an embedded element of the Court's opinion. They may assert that if the video is absolute and indisputable, then what is the point of the public independently interpreting it in this unique proffered manner? While a court might explain evidence, appellate opinions have not traditionally included pictures, documents, or other evidence representations. Does this signal a trend toward greater transparency and evidentiary support? 

Others might similarly, but conversely, argue that the publication of the video merely supports that it is unassailable; transparency of the Court being equated with indisputable truth. Of course, one retort to this might be the dearth of instances in which such link to the actual evidence exists (was the evidence less compelling in all those cases?) 

In the age of the Internet, each argument might find advocates. And for now, in Florida, we are returned to Chico's question for judges and appellate courts: "who ya gonna believe, me or your own eyes?"

Sunday, November 18, 2018

Just Because We Can Be Friends

An unattributed "common English phrase" has been repeatedly applied to progress: "just because you can doesn't mean you should." It came to mind last week while considering the potentials presented for judges by the Florida Supreme Court in Herssein and Herssein v. United Services Automobile Association, SC17-1848 (Fla. 2018). It is a long-awaited exposition regarding the impact of social media on trial judges. It changes a broad proscription regarding Facebook, and illustrates the seemingly leisurely pace of legal processes. 

The case began when the Herssein law firm sought to have the presiding trial judge disqualified from hearing the case. The litigation was about contractual rights and obligations between the law firm and the insurance company, a former client. The dispute involved the two entities parting ways, and an executive of the insurance company was alleged to potentially be a witness, a defendant, or both. Therefore, USAA hired an attorney named Israel Reyes to represent this executive. 

The Herssien firm moved on June 8, 2017 to disqualify the trial judge. Two attorneys from the Herssien firm submitted "affidavits in which they swore," “[b]ecause [the trial judge] is Facebook friends with Reyes, [the executive's] personal attorney," the Herssein firm believed that it could not receive "a fair and impartial trial," and that Mr. Reyes had "influenced the trial judge." The trial judge denied the motion, despite there being arguably one "Facebook" appellate decision supporting disqualification. The Herssien firm sought review by the Third District Court of Appeal.

The Third District Court rendered its decision rapidly, on August 23, 2017, concluding that a judge and lawyer being "friends" on Facebook did not mandate disqualification. The Court noted that “allegations of mere ‘friendship’ with an attorney or an interested party have been deemed insufficient to disqualify a judge,” citing a 1998 decision of the First District Court of Appeal, and a Florida Supreme Court decision in 1990 (both before the 2004 launch of Facebook, and the beginning of other social media platforms). MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1338 (Fla. 1990); Smith v. Santa Rosa Island Auth., 729 So. 2d 944, 946 (Fla. 1st DCA 1998). 

The Third DCA recognized that its decision was potentially in conflict with a decision of the Fourth District in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). The Court in Domville "held that recusal was required when a judge was a Facebook 'friend' with the prosecutor." The Third DCA in Herssien noted the Domville outcome was based in part on an opinion of Judicial Ethics Advisory Committee, Opinion. Fla. JEAC Op. 2009–20 (Nov. 17, 2009). That committee decision concluded that it was inappropriate for judges to "friend" lawyers or for lawyers to "friend" judges. The Committee concluded that a judge seeking or accepting such a "friend" request or connection "violates Cannon 2B (Code of Judicial Conduct), because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.” On the basis of that opinion, Facebook has antithetical for Florida judges for most of its existence. 

However, the Third District also referenced a decision of the Fifth District, which compelled disqualification on the basis of ex parte communication, which happened to be a "friend" request from the judge to a party in litigation. The Fifth DCA decision was therefore founded upon the communication itself more than the mode (Facebook was the mode chosen, but an email, text, or greeting card would have caused a similar result). The Court commented, however, on the Facebook term "Friend," noting that "A Facebook friendship does not necessarily signify the existence of a close relationship." The Fifth DCA was critical of the Domville holding, noting that its "logic would require disqualification in cases involving an acquaintance of a judge."

Thus, the issue came to the Supreme Court in Herssein with various conflicting precedent. The Third District clearly finds being a Facebook "Friend" insufficient in itself to compel disqualification, a view seemingly shared by the First District (though in an actual, real-life "friend" as opposed to Facebook "friend" setting, which analysis was seemingly also favored by the Fifth DCA. Contrarily, the Fourth DCA in Domville had concluded that "friend" was enough to compel disqualification, based upon the interpretations of a committee of lawyers and judges on the JEAC.

The Supreme Court accepted jurisdiction in an order of December 11, 2017. The parties filed briefs outlining their arguments and authorities, and oral argument was held June 8, 2018. On November 15, 2018, the Florida Supreme Court rendered its decision in Herssein, written by Chief Justice Canady. Justice Labarga wrote a concurring opinion. Justice Pariente dissented, joined by Justices Quince and Lewis. The Court concluded that because "a trial judge is a Facebook 'friend' with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification."

The Supreme Court acknowledged the prior decisions of that Court and the First DCA regarding “allegations of mere ‘friendship.’" It then discussed the "traditional" definition of "friend," noting that "some friendships are close and others are not." Thus, the Court reasoned again that the "mere friendship" is insufficient to compel disqualification, citing MacKenzie. The Court provides an overview then of what Facebook is and how the platform works. And then the Court reaches "the crux of the matter: what is the nature of Facebook 'friendship?'” 

The Court explained that a "A Facebook “friend” may or may not be a “friend” in the traditional sense of the word." The "Facebook 'friendship' does not objectively signal the existence of the affection and esteem involved in a traditional 'friendship.'” And, the Court noted that "it is regularly the case that Facebook 'friendships' are more casual and less permanent than traditional friendships." Thus, the existence of a "Facebook 'friendship,' between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship." 

The Court therefore concluded that "No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook 'friends' with a relationship of an indeterminate nature." That conclusion, according to the Court, is consistent with the majority of states that have addressed this Facebook question. It is worthy of note that it is possible that one might be unfamiliar with Facebook entirely, and upon that lack of foundation what is or is not reasonable could perhaps change?

Justice Labarga agreed with the decision, but wrote in concurring "to strongly urge judges not to participate in Facebook." He agreed with the dissent that "participation in Facebook by members of the judiciary 'is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter.'” Thus, he concluded that "judges who elect to maintain Facebook “friendships” with attorneys who have any potential to appear before them are, quite simply, inviting problems." It is this concurrence that led me to recall "just because you can doesn't mean you should," and to thus title this post so. 

The dissent found more persuasive the logic of Domville and the JEAC. Because of the "fraught with risk" conclusion, the dissent urged instead the adoption of "a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook 'friends' appears before them." The dissent concludes that this would do "little to limit the judge’s personal liberty, while advancing the integrity of the judicial branch." The dissent is focused upon the perceptions and conclusions, informed or not, of the person learning of the "friendship." And, there is discussion of what effort might be involved in discovering or substantiating the actual nature of a relationship between a judge and counsel or party.

The dissent also concludes that the trial judge in the Third District, when the Motion to Disqualify was filed, should have granted the motion because "the only binding opinion was the Fourth District’s in Domville." The dissent concludes that "the trial judge was required to follow that opinion" regarding Facebook, citing Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). However, that conclusion ignores that both the Florida Supreme Court and the Florida First District had previously concluded that "mere friendship" is not sufficient grounds, MacKenzie and Smith. Though not specifically "Facebook friendship," conflicting friendship decisions nonetheless. Arguably, therefore, the trial judge in Herssien was not faced with "binding authority" in the guise of Domville, but in fact was faced with the very "interdistrict conflict" recognized and explained by the Florida Supreme Court in Pardo.  Some may struggle with the dissent's seemingly absolute analysis to the contrary.

The ultimate result of Herssien will likely remain unclear for some time. There are a number of judges that have eschewed Facebook and other social media because of the JEAC opinion and the analysis of Domville. Thus, the potential for appearances noted by the dissent may currently be few. It is possible that judges will now flock to Facebook, despite the fact that some perceive Americans in general are abandoning the platform. Or it is possible that judges will find neither encouragement nor motivation in Herssien, will not join, and there will be no recurrence of the "Facebook friend" dispute upon which to build further analysis. In effect, just because judges now can, it is possible they will instead heed the concurrence and simply will not, or if they do they will engage with family and neither seek or accept friend requests from attorneys.

Ultimately, it is likely that as Facebook evolves into the next MySpace, that the next social media analysis for judges will likely involve the "next big thing," as opposed to Facebook. 


Thursday, November 15, 2018

Arguments and Emotions

There are three "modes of persuasion" as purportedly defined and taught by Aristotle: "ethos," "pathos," and "logos." They are sometimes also referred to as "rhetorical appeals." Two initial observations are (1) that these are not taught enough in schools today, and (2) that they are worthy of consideration. 

According to YourDictionary.com, the three modes are defined as follows:
"Ethos (sometimes referred to as an appeal to ethics), then, is used as a means of convincing an audience via the authority or credibility of the persuader, be it a notable or experienced figure in the field or even a popular celebrity.
Pathos (appeal to emotion) is a way of convincing an audience of an argument by creating an emotional response to an impassioned plea or a convincing story.
Logos (appeal to logic) is a way of persuading an audience with reason, using facts and figures."

There is a place for each in litigating a case. I have discussed these modes with exceptional attorneys over the years. Some deride or eschew one or more of these three, expressing a distinct personal preference for one over the others. When one hears those opinions, it may provide more insight to the speaker than to his or her favored mode. Arguably, each of the modes is equally appropriate and effective in persuasion, depending to some degree upon the identities of both the speaker and the listener. 

There is seemingly a draw in injury litigation to Pathos. Commonly, there is a person(s) that has suffered significantly, through injury and the economic impacts that often follow. As an attorney, I heard more of these in personal injury than in workers' compensation litigation. Workers' compensation is not a perfect system and it does not provide perfect relief. But what it provides is statutorily defined. Possibly, the sympathy arguments are more persuasive in non-economic damage arguments like "pain and suffering" or "loss of consortium," and thus more prevalent there. 

Personally, I more often heard of those dire economic impacts outside of workers' compensation where recovery was often years in the making. The description of several years of treatment and recovery, recounted in past tense to a jury, was both persuasive and powerful. By comparison, when a work injury interferes with the ability to earn income, workers' compensation generally provides a more rapid stream of benefits than personal injury litigation. There are still economic impacts, particularly in a claim that is totally denied and in which there have thus been no periodic indemnity payments by the time trial occurs. 

Pathos pulls at the heart. Everyone can be drawn to an emotional response, particularly by a skilled storyteller. There are attorneys who are masterful storytellers. They organize their evidence and present it in an order and manner that evokes sympathy and concern. In speech, their timing and cadence are focused on drawing the listener to a sympathetic reaction. Though it may be about sympathy, Pathos may also be about anger, inspiring the listener to action through a sense of exacting justice. 

Certainly, Ethos is employed in litigation. There is strength perhaps in the expert witness that attended Harvard, or that trained at some notable clinic or under a notable mentor, or that is "board certified" in some specialty or discipline. Effective advocates often spend significant time questioning such experts, detailing those experiences, building the credibility of the expertise, credibility, or even celebrity. One line of questioning often engaged focuses on the frequency of which a practitioner treats a particular diagnosis or complaint. But Ethos is not limited to the witnesses presented. 

There are also attorneys who employ Ethos with their own experience. Throughout trial, they carefully make reference to their own personal expertise, knowledge, and training. As the storyteller, their credibility and experience may persuade the listener of the strength of the case being presented. Of course, arguments illustrating one's own strength or mentioning some perceived weakness of opposing counsel may be objectionable and inappropriate, but they are used. Through brazenness or subtlety, those arguments sometimes find their way in. 

Ethos is also about character. Though the definitions focus on the "speaker," and rightly so, there is also Ethos in the client. Did the client do the "right thing," whether that client is employer or employee? The law may well commend those that act appropriately, have strong character, and observe ethics. Those arguments may be interwoven by the storyteller in explaining some of the procedural "why" or "how" a particular set of facts evolved to the point at which they stand at the time of trial. 

Logos relies upon facts and figures. Logos comes from the same root word as logic. It is Logos that we see drawing arguments back from what is felt to what is demonstrable. Logos may be popular in litigation because it is factual. Logos may allow the listener to reach a conclusion by deciding if something did or did not happen, or if it is or is not important to the debate. That "yes or no" analysis is perhaps a relief to the listener. 

Another thing that may attract people to Logos is that facts may be more easily replicated or capable of verification. The x-ray shows a fracture, that is a fracture. Show the x-ray to ten doctors and it will still be a fracture. Logos is also the foundation of workers' compensation legal theories like the "logical cause doctrine," where  various inferences and elements are demonstrated. In "logical cause" the attorney builds a factual foundation that leads to the conclusion that a particular cause resulted in the complained of injury. 

Which is the best method of persuasion?

It seems that this is similar to the "what is the most powerful branch of government" riddle with which they challenged us in grade school. And I would suggest the answer may be the same, essentially: "they are co-equal." None is the "best," but each may be better equipped or effective in a given situation, or with a particular listener(s). An effective advocate would do well to understand all three. Each might be the better path to success in a particular case, with a particular listener, but none is likely to be best with each and every situation or listener(s).  An advocate should recognize what method she/he is employing, and that which is being used by the opposition. 

The variety of approaches needed is a product of each mode being different, certainly. But, it is perhaps more the product of each listener being different. In a bench trial situation such as workers' compensation, it may therefore be productive to understand and consider the judge that is presiding over a particular case. Knowing how a particular judge will react to each of the modes would be powerful information for the attorney seeking to effectively represent a client. 

Is the judge perceived as empathetic and/or sympathetic? Then a Pathos presentation may be the most persuasive and effective. This might center on the details of the actual injury and the extent of the various treatments. This might also focus upon the symptoms and complaints that persist following treatment. Or, the arguments might focus on the efforts and engagement of the defense, explaining the challenges and the obstacles. Economic impacts involving lost income, added familial burdens, and others might fit within this approach. 

Do you believe that judge is impressed by credentials and experience? If so, then the litigation plan may appropriately focus on education, training, certification. Perhaps time would be well invested in exploring through testimony how many times an expert has diagnosed and treated a particular malady. The success of such treatments, or the probability of recurrence or relapse following various available treatment options might also be engaged through the testimony of an expert of repute, credentials, and experience.

If the judge is perceived as being persuaded by facts and figures, then Logos may be an important consideration. In this context, perhaps those could be used as primary argument, or in support of opinions. Expert testimony is often seen as superficial, focused merely on conclusions. There is some tendency to rely upon the expert's conclusion. but Logos may suggest that it makes sense to have the expert testify about the path that led to the conclusions and opinions. What are the facts, the logic, and the support for the ultimate opinions?

Of course, it is not possible to really know a jury. First of all, the time spent together is simply too short. But, more critically, a jury is a conglomeration of people, attitudes, pre-dispositions, skills, and personalities. While a talented and experienced lawyer can effectively gauge or perhaps "read" a jury member, each is part of a greater whole. Each will participate in the decision process dynamically, dependent in part upon the contributions and personalities of the others involved. A jury is a collective group, and the group dynamics may be impractical to predict. Therefore, a lawyer cannot viably rely upon any of the modes to the exclusion of the others there. In a jury trial setting, all three modes must be included. 

And it is perhaps best to merely adopt that overall mindset when preparing for litigation. Perhaps there is value in laying information so that there is at least some exposure of the emotional or perception (Pathos), reinforcement from the credentials of witnesses or speaker (Ethos), and some fundamental facts, figures, and logic to support the sought conclusions (Logos). It is likely that careful consideration and employment of all three will lead to the best chances of success. A carefully constructed presentation of evidence that understands and engages all three may provide a breadth that facilitates success.  

Those who would persuade would do well to understand these thoughts of Aristotle, both in making their plans and in preparing to respond to the plans of their opponents. And perhaps a quick examination focused on these three is a good measure to evaluate one's preparation and plans just prior to trial. 


Tuesday, November 13, 2018

Fitting Good into Busy Lives

This is a busy news week. Yesterday was the observance  of Veteran's Day. Communities gathered for remembrances, parades, and various dedications of monuments and memorials. I love Veteran's Day! In California, fires raged. In various states, election returns continued to be processed, and one of America's most diverse businesses signaled reorganization. 

Life is busy. As I contemplated the assortment of challenges and the flow of information this week, I was reminded of an exchange between Agents J and K in Men in Black (1997). J is coming to grips with new knowledge, and expresses his angst in dealing with his first alien threat. Agent K puts it in perspective with:
There's always an Arquillian Battle Cruiser, or a Corillian Death Ray, or an intergalactic plague that is about to wipe out all life on this miserable little planet, and the only way these people can get on with their happy lives is that they DO NOT KNOW ABOUT IT!
Maybe that is how people get through much of what is in the news, they simply tune out?

In the midst of it all, the week of November 12 is Kids' Chance Awareness week. There are many opportunities to be aware of Kids' Chance. It is celebrated on social media platforms like Twitter. Workers' Compensation blogger Bob Wilson is spending this week featuring what is really important in the Kids' Chance saga, the kids that make it necessary, and worthwhile. I have been proudly involved in Kids' Chance of Florida since 2015, when it was founded at a meeting in Tampa, Florida (mostly I take notes at meetings, but I am involved). 


The Challenge of Kids' Chance, certainly like so many efforts to do good in this workers' compensation industry, is that unfortunately people DO NOT KNOW ABOUT IT! And hence the annual effort at awareness. Despite being featured in such blogs as Bob's Cluttered DeskConference Chronicles, and more there are still too many unaware of this organization. 

Kids' Chance is one of many organizations striving to reach the kids of injured workers in America. Striving to reach them in a way that touches their present, recognizes their struggles, and facilitates their futures. Kids' Chance is striving to put resources in the hands of young people who have hopes and dreams to attend college or vocational school, to gain skills and knowledge, and to make something of themselves. 

Kids' Chance has grown from an idea in 1988 in Georgia to a national presence. There are currently Kids' Chance organizations in every U.S. jurisdiction except Alaska, The District of Columbia, Guam, Maine, New Mexico, North Dakota, Puerto Rico, Rhode Island, U.S. Virgin Islands and Wyoming. 2018 is a special year for Kids' Chance, marking a mere 30 years since its Georgia founding in 1988. In thirty years, Kids' Chance has gone from one man's little idea to an industry presence in 44 jurisdictions. 

The Kids' Chance of America President recently noted that 
During the past year, Kids’ Chance touched the lives of more than 597 kids, totaling over $2,000,000 in scholarship funds through its member states.
Soak that in for a minute. In one year, this organization touched 597 kids like those featured this week in Bob Wilson's blog. With your knowledge that there are 44 jurisdiction organizations, many of you just calculated in your heads that more than ten kids were helped in each Kids' Chance state last year. Certainly, some states helped more and others less, but collectively 597 kids. That is impressive! That is a tremendous volume of lives impacted by the effects of a parent's work injury and touched by the dream that is Kids' Chance. 

To put that into perspective, Kids' Chance of America noted recently that 
Collectively, Kids’ Chance organizations have awarded over 6,500 scholarships across the country, totaling over $20,000,000
Kids' Chance has existed for 30 years now. That 6,500 scholarships divided by 30 is about 217 per year. But, in 2017 Kids' Chance awarded more than double that, 597 scholarships. The clarity of this is simple. As Kids' Chance grows, it can touch more kids' lives.  And as Kids' Chance grows, it can touch more kid's lives each year. Kids' Chance is growing, the vision is spreading, and it has a goal of achieving a jurisdiction affiliate in each U.S. jurisdiction by 2020. Two years, ten more jurisdictions. An admirable goal. 

A great need of Kids' Chance everywhere is the awareness. It is critical that people in the industry know that opportunities exist to  help kids. But that is only half the battle. More important, the kids need to know that the resources exist to help them further their education and fulfill their individual dreams. 

The great challenge of Kids' Chance is that there are a great many kids affected by work place injuries every year. They have great grades, commitment, outstanding achievements, big hearts and Kids' Chance can help them. The problem is most of these kids DO NOT KNOW ABOUT IT! But, all of you do. Make  a referral today. Kids Chance of Florida has a simple referral tool on its websiteCertainly if the need is imminent (2019 graduations), but even beyond. Get that kid in the database, and facilitate Kids' Chance reaching out when high school graduation comes. 

In a Christmas classic sure to rerun next month, Scrooged (1988), Claire noted "you can always change tomorrow if you want to." Kids' Chance is doing that every day. Each of those changes is small, incremental. Those changes are each one kid. But those kids add up, the volunteers reading those applications add up, those adjusters, nurses, doctors, and lawyers making applicant referrals add up, those word-spreaders and cheerleaders add up.

You add up. Make a referral today. Recruit kids to apply today. Make one difference today. Touch one kid's life today. Welcome to Kids' Chance Awareness Week 2018!