Thursday, November 8, 2018

Honest Critics - Invaluable

I find honest critics refreshing and inspiring, and have yet to hear a convincing argument for discounting or muting honest critics. There is much to learn from those who provide counter-point and alternative perspective. I heard from an honest critic this week regarding some content of Pro Hac Vice in the Administrative Realm. I was told some of the criticism was the speaker's personally, but some was the speaker giving voice to others who elected not to contact me.

In modern America, some perceive a tendency in many contexts to ignore criticism. I think I remember a time when there was more civil debate and discussion of topics. I say "I think," because many times when I hear discussion of "America today," someone will assure me that "things" have not changed, but merely our perceptions have. Yesterday, I overheard that argument regarding the tenor of our recent election. One speaker lamented essentially the "depths to which discourse has sunk these days." A second speaker countered "it's always been that way, you just notice more now because of the Internet and 24 hour news." Whether civil discourse has diminished, or whether we have simply become more aware, I leave to the reader. 

Back to the point, however, I was assured that the critic(s) took no issue with the legal conclusion (administrative judges lack authority to grant permission for temporary practice). However, there was a feeling that content regarding the wearing of robes was demeaning, insulting, accusatory, and in all such contexts at least unnecessary and perhaps inappropriate. To be clear, it is never my intent to be insulting or demeaning to anyone in any context, here or elsewhere. However, when it comes to being either insulting or demeaning the point is rarely, if ever, the speaker's intent. In that context, it is what the listener hears or perceives that will be critical. 

The critic this week voiced a conclusion (the critic's or other's) that Pro Hac Vice in the Administrative Realm reference to the wearing of robes was unnecessary regarding the point of the legal conclusion and that the reference to robes on administrative judges was somehow a reference to "Black Robes Disease." That malady was not mentioned in the post, but was apparently inferred by a reader. One can control what one says, but cannot control what the listener hears or concludes. In the early days of this blog, Black Robes Disease was specifically addressed. That discussion was about empathy and professionalism, and about perceptions about judges' actions not appearance. 

Notably, that post is a discussion of behavior or perception of behavior and as notably has nothing to do with wearing a robe or not. Do people use that term, Black Robes Disease? Some do. Are there examples of behavior that evidence it? Whether there are or not, there are examples that are perceived as such. Remember, we can control our words or actions, but we cannot control the perceptions or conclusions of the listener or observer. There are those who perceive the existence of the condition, but that is a behavior issue not an appearance issue. 

Another recent post describes The Florida Bar and the Florida Supreme Court contemplation of a rule on maternity leave, see Maternity and Continuance. Some attorneys seek a rule because they perceive judges' current discretion insufficient. They perceive the continuance process as inequitable. This rule likewise has nothing to do with wearing or not wearing a robe, but might be perceived (we cannot control perceptions) as an issue of attempting to counteract judicial behavior. Perhaps Florida's courts will soon have a rule on maternity continuance; notably, such a rule will not apply in the administrative realm, as explained in that post. 

While I respect and accept that some might equate comments about robes with Black Robes Disease, assuredly that was neither the topic nor the intent (intent is not the critical point, but the perception of the listener). Though not intended as a reference to Black Robes Disease, I appreciate and respect the listener's perception and conclusions, and the opportunity to contemplate it. 

The critic conveyed perception(s) about the closure of Pro Hac Vice in the Administrative Realm, referencing that "a dime store robe" does not change authority. That was followed by the overall conclusion that "it is the court that makes the robe, not the robe that makes the court. Without the court, the robe is just a costume." The critic conveyed that this was perceived as troubling or hurtful by administrative judges who choose to wear robes. 

And, the critic conveyed multiple perceptions, motivations, justifications, and explanations for the wearing of robes. In my opinion, the explanations of why administrative judges wear robes are sincere, thoughtful, and well-intentioned. Those explanations are similarly subject not just to the intent of the speaker purporting them, but also to the perceptions of the listener. There are those who remain unpersuaded by the explanations suggested. I struggle to be conscious of those listener's perceptions also, recognizing that only the listener can form the listener's conclusion(s). 

There is no doubt that perceptions of appearance may be important. Almost two years ago, Challenges in Policing Appearance discussed the imposition of a dress code. There I concluded "If your appearance is professional and clean, it will demonstrate respect for the process, your clients, and the people (employees and employers) that it is meant to serve." Coincidentally, that was a post on which I received some negative feedback. In some ways, not dissimilar from the theme of the critic's expression of perceptions (personal or conveyed) regarding Pro Hac Vice in the Administrative Realm. One attorney, commenting on Challenges in Policing Appearance, essentially told me that any commentary on, or mention of, appearance was "insulting" (we cannot control perceptions of the listener). 

To be clear, I perceive appearance as important. Not in the quality, expense, style, or other contexts (the name on a label, the price of the clothes). But there is merit in a clean and professional appearance. I recognize that some disagree with me (lawyer mentioned above), and that I will not change their minds. I similarly understand some also have beliefs regarding their wearing of robes, and their perception that doing so enhances respect for or formality of or effectiveness of proceedings. 

Accepting that appearance is important, I return to the point. Whether it is a robe or some other accouterments, I am unconvinced that anything external makes or breaks. What makes a good judge will depend upon who you ask (and whose perceptions you cannot control). Despite the subjective nature, various adjectives readily jump to my mind that might be pertinent: patient, fair, studious, polite, kind, careful, unbiased, compassionate, honest, scholarly, adaptable, courteous, humble, diligent, impartial, attentive, practical, sincere, unassuming, sensible. These are examples of course, not an exhaustive listing. Anyone might form their own list. 

But, it is the judge that matters. A judge mentioned in Challenges in Policing Appearance, who consistently wore the same tie, is perhaps remembered for that habit. However, the individuals and system that depended upon that judge were hopefully more interested in the judge himself, the judge's actions or inactions, and the process afforded, than they were in that tie. It is the court that makes the robe. Or, perhaps differently stated it may be the judge that makes the robe. But this listener remains unpersuaded a robe makes the judge. 

There are critics of Florida workers' compensation, and workers' compensation generally. There are critics of various people who serve in those systems. Certainly, I have my share of critics. We are collectively fortunate that there are open critics, honest critics. I am thankful for them because they drive me to question, consider, and analyze the workers' compensation world in which I live. Honest critics make me think. I appreciate and value them. 

I conveyed those sentiments to the one critic that contacted me regarding Pro Hac Vice in the Administrative Realm. I also conveyed to the critic my apologies for any offense or insult perceived. First, because none was intended. But more importantly, because it is important that opinions are expressed, that discourse occurs, and that our own conclusions are re-examined as we listen. While troubled that feelings were hurt, it is perhaps productive that conversation has been stimulated. 

Finally, it bears noting that the world of workers' compensation generally, the Florida workers' compensation system, and the judges and staff of this Agency specifically have no greater fan. I strongly believe in recognizing achievement, documenting success, and focusing on goals oriented to the overall progress and improvement of this Agency and the world of workers' compensation. 

The Florida OJCC undoubtedly has some of the best administrative judges in workers' compensation today. And, some of them undoubtedly wear a robe from time to time, but that is not what makes them the best. I am proud to serve with so many of them, present and past; because of who and how they are, their dedication, their demeanor, their skills (and my perceptions of them in terms of the many adjectives noted above), their ethics, their strengths, and their inevitable human weaknesses. 

If any of the foregoing, or any post, leads you conclusions, thoughts or questions, contact me and share: david.langham@doah.state.fl.us




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