Thursday, January 31, 2019

Effective Deposition Objections

Lawyers (and unrepresented parties) in litigation are tasked with finding out the nature of actual disputes. They accomplish this in the process that the legal profession has named "discovery." Each legal process begins with a complaint or a claim of some kind. The old adage that "there are two sides to every story" comes to mind. Occasionally, the response to such a claim will be to provide what is sought or claimed, but more often there are defenses raised and the process begins a course that could end up with a trial. 

Discovery is supposed to help a party to that dispute reach a better understanding of the dispute and the people or other entities involved. It is a process of asking questions, learning, and often then asking new questions based on what was learned. It is a process about which lawyers often complain. I have met several lawyers who believe themselves to be quite gifted regarding discovery, and yet scornful of the perceived failings of various other lawyers in that process. 

Perspective is a critical word in litigation. Different parties and their attorneys will likely see various facts and thoughts differently. That is a natural effect of human nature. Part of the effort in discovery is to explore those perspectives and the foundations for them. The goal is to learn both what the other party or witness knows and how they came to know it. It is also usually of assistance to know how they reached any conclusions that they express. Discovery is about gleaning information. 

It is important to remember that there are a variety of rules regarding what can and cannot be evidence at trial. These are generally expressed in an evidence code or a set of evidence rules in a particular jurisdiction. There may be requirements that require original documents instead of copies, exclude various statements made by people not presently testifying (repeating what someone else said), or require that certain foundations be established before something can be admitted as evidence. It is generally true that the standards and restrictions on what may be evidence are more strict than the standards as to what might be asked in discovery. Thus, much may be learned in discovery, but possibly not everything learned can be admitted. 

The process is thus challenging. It becomes more challenging because that deposition taken for discovery might later be used at trial. Because the lawyers involved recognize that potential exists, they are likely to strive for that deposition to be as helpful to their client's interests as possible. And, if someone is asking questions that are not appropriate, the opposing party or attorney should voice an objection. The point of the objection is not to conduct an argument at that moment in time, although they sometimes devolve into that. The point of an objection is for one party/attorney to put another party/attorney on notice that she or he believes either a question or an answer is inappropriate or inadmissible. 

But for some reason, there is persistent misunderstanding about what kinds of objections are critical in a deposition. The failure to raise certain objections during the deposition may result in the party waiving the right to raise that objection later. But, because of the discovery purpose, and the notably lower standards that govern what can be discovered as compared to what can be evidence, the failure to raise many other objections may very well not result in waiver. 

The Florida First District has held “Failure to object to questions and answers during a discovery deposition does not amount to a waiver of the right to make objections thereto at trial except in limited circumstances.” Objections may later be raised at trial, if the deposition is admitted as evidence, as if the witness were “then present and testifying.” Waiver occurs only if “the ground of the objection is one that might have been obviated or removed if presented” at the deposition.” See David v. City of Jacksonville, 534 So.2d 784 (Fla. 1st DCA 1988).

As a side note, the Florida Courts have no purview or authority for defining or enacting rules for practice before the OJCC, but the duly enacted Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications (R.Pro.Work.Comp.Adj.), Chapter 60Q, Florida Administrative Code, address discovery, specifically depositions, and how those may be “taken and used.” Rule 60Q6.114(2). The R.Pro.Work.Comp.Adj. adopt and incorporate by reference the “Florida Rules of Civil Procedure.” Thus, while written and adopted by the Court for practice in the Article V. Courts, those rules have been incorporated and are likewise rules of this Office. Two provisions are worthy of review. 

Rule 1.330(d)(3)(A) provides:
"Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time."
Rule 1.330(d)(3)(B)provides:
"Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind that might be obviated, removed, or cured if promptly presented are waived unless timely objection to them is made at the taking of the deposition."
Thus, the general rule is that failure to raise an objection is not usually waiver. But, it is incumbent upon an objecting party, when voicing a “form” objection to provide sufficient information to allow counsel to understand the basis for the form objection, and the opportunity to cure that error. See, Gatlin v. Argonaut Ins. Co., 360 So.2d 459 (Fla. 1st DCA 1978) ("Had they been objected to when asked, Mrs. Gatlin's attorney would have had an opportunity to reframe them."). See also Evans v. Perry, 161 So.2d 27 (Fla. 2nd DCA 1964); Clairson Intern. v. Rose, 718 So.2d 210 (Fla. 1st DCA 1998); U.S. Sugar Corp. v. Henson, 787 So.2d 326 (Fla. 1st DCA 2000); Weyant v. Rawlings, 389 So.2d 710 (Fla. 2nd DCA 1980); State v. Wells, 538 So.2d 1292 (Fla. 2nd DCA 1989).

In this regard, it is likely not sufficient to "object to form," as that does not provide edification to other parties as to what form failure is perceived. If the objection is to "leading" (a question that suggests the answer: "and you were at the bus stop looking at the intersection at that time, correct?"), it will likely not be sufficient to merely say "objection" or "object to form." It would be more appropriate to say "objection, leading." Then, the lawyer asking the question can re-ask the question in a more appropriate format ("were you looking at the intersection at that time?")

The same is true for "compound questions" (did you see Mr. Smith on Wednesday or Thursday either at the store or on the bus?). A single word "yes" or "no" answer to a compound question may leave everyone in doubt as to which question is being answered. If the question above was answered "yes," it narrows down that Smith was seen, but does not help to determine exactly where or when. Questions such as this are often encountered in expert depositions regarding medical treatment or recommendations. And, there may well be no harm. For instance, if the medical records show an office visit in April and the next in July, a seemingly compound "did he return to see you in May or June" might yield a "no" and save time in the process. However, in other contexts, a compound question may create confusion. A simple "objection" is not sufficient. It would be more appropriate to say "objection, compound question."

The objection to form is also important when questions are simply confusing or convoluted. In one somewhat famous quote, a lawyer struggles to get to the point:
LAWYER: When he went, had you gone and had she, if she wanted to and were able, for the time being excluding all the restraints on her not to go, gone also, would he have brought you, meaning you and she, with him to the station?
To which the opposing counsel is said to have replied:
OTHER LAWYER: Objection. That question should be taken out and shot.
Many will agree with that proposed fate for this confusing and rambling question. However, that objection does nothing to illuminate why that question was terrible. The objection makes a good point, and is humorous. But, though one might wish otherwise, sometimes the lawyer or party asking the questions is not so quick to spot the issue her/himself. 

More appropriately, the objection there could have been "object to the form, the question is confusing." It is not that there is a "right" phrase to state an objection, but that what is stated regarding such a form question must be sufficient to alert the person asking the question that there is a flaw or issue that needs to be addressed. The point of the objection is to allow the lawyer or party asking questions to fix the perceived flaw. In the event a lawyer or party fails to enunciate a competent objection to such a "form" question, it is probable that a later objection will be deemed waived. 

The right time to find out about such an issue is not at trial. By then, the witness that was deposed may well be unavailable to clarify any confusion or ambiguity from such a question. The parties or attorneys may find themselves in legal arguments and disagreement at trial over the meaning of questions and answers. That creates doubt for all involved. The better practice for "form" objections is to make the point during the deposition. This allows the person asking the questions to be forewarned and to perhaps ask a different question.

Tuesday, January 29, 2019

Thinking of Mollie Tibbetts

I was following a news story in the summer of 2018 regarding a young Iowa student named Mollie Tibbetts. It was a mesmerizing news story. She was staying at a home in Brooklyn Iowa in July, according to FoxNews. She went for an evening jog, and then disappeared. July and August brought various news stories and pleas for information. In August, CNN reported that she was found "in a rural area." An autopsy concluded the cause of death was "homicide resulting from multiple sharp force injuries." It was a troubling conclusion of the story for many. Several people since then have related to me how she reminded them of someone in their own lives. She seemed to have a certain familiarity to a great many people.

In August, FoxNews reported that an arrest had been made, Christhian Rivera. It reported that this suspect was not in the United States legally, and that he had worked at "Yarrabee Farms for the past several years," which was "less than three miles from where she was staying the night she vanished." The news reported that the employer is owned in part by relatives of Craig Lang, a "former 2018 Republican candidate for secretary of agriculture." To some, there was an undertone of employer responsibility in some news coverage of Mr. Rivera. 

The tenor of some news reports seemed to question Mr. Rivera's presence, and thus ability to allegedly be involved in Mollie's disappearance and death. A Des Moines Register story in September reported that Iowans were polled about the Tibbetts case, and placing responsibility. It concluded that by "almost 4-to-1, Iowans blame employers more than the workers when illegal immigrants are found working in Iowa." Sixty-three percent of Iowans reportedly blame employers compared to a 6% of Iowans that blame the immigrants. There appears to be a strong sentiment that employers must do more to verify the status of their employees.

According to FoxNews, One of the Yarrabee Farms owners, confirmed that Mr. Rivera was an employee. And, "that Rivera passed the government's E-Verify employment verification system, despite his status as an undocumented immigrant." FoxNews explained that E-Verify is "intended to maintain a database of I-9 forms and tax records of employees across the country." But, it was later reported by CNN that Mr. Rivera had used someone else's identification when he applied at Yarabee Farms. 

It is not unheard of for people to remain unnoticed. In 2015, there was ample discussion in Florida workers' compensation communities regarding the Brock and Hector cases. They each involved a criminal prosecution in Florida for the use of misrepresentations made in the hiring process. Ultimately, the Florida Supreme Court elected not to review these cases. There was a petition to the Supreme Court of the United States (SCOTUS), but it was declined. In Florida, it remains a crime to make false representations in obtaining employment. 

In a Kansas case somewhat similar to Brock and Hector, the Kansas Supreme Court reviewed a prosecution in which Ramiro Garcia was prosecuted for "identity theft for using another person's Social Security number to obtain employment." The Kansas Court concluded that he could not be prosecuted for that under state law. It concluded that federal law preempted state law. Though Garcia had not been convicted of violating federal law, the Court concluded that state law enforcement could not use his statements on federal immigration forms such as the I-9. 

In 2019, the issue of immigration may arise in Florida's legislature. In the Senate, two bills have been filed, by Senators Gruters (Senate Bill or "SB" 168) and Bean (SB170). Each begins with various findings and definitions. Each imposes duties on state law enforcement agencies and personnel to cooperate with federal authorities. The e-verify database is not specifically mentioned in either bill. 

However, WWSB7 in Sarasota reports that under the proposed legislation, "Florida businesses would have to use a federal database to verify the immigration status of new employees." It quotes one sponsor as concluding that "Florida is one of the only states in the Southeast that currently doesn't ask our employers to use that system." 

But if the legislative debate proceeds, will there be further discussion of Mollie Tibbetts and Christhian Rivera? Is is possible that someone like Mr. Rivera could have their information submitted to e-verify repeatedly and not be identified? Or, is it simply that people are generally smarter than to use their own information? How widespread is such activity? Mr. Rivera's crime, and the tragic death of Ms. Tibbetts, seem to illustrate a disconnect. Is there value to checking a database if people are able to present false information?

From a variety of standpoints, false representations are precluded by law, often referred to as "fraud." There are those who do not perceive the use of someone else's information to obtain employment as "fraud" or even as wrong. Some contend that prosecution of such activity is immoral or anti-immigrant. At least for now, the Florida precedent allows for prosecution of such misrepresentation, but that appears to not be the case elsewhere in the nation.

It is important to remember that crimes are committed by a variety of individuals, regardless of immigration status. Furthermore, there may be various reasons for concealing one's identity in the workplace; perhaps to avoid implications like child support collection, taxation, or otherwise. It is possible one might do so to engage implications like credentials, qualifications, or even licenses. Despite those potentials, there is some sentiment that checking identity and prosecuting those who make misrepresentations is inappropriate.

Will the coming debate conclude that mandated database checks regarding whether someone is legally present are necessary in Florida? It will be interesting to watch.


Saturday, January 26, 2019

Working and Living, Finding Balance Ourselves

In August 2018, the British Broadcasting Company (BBC) reported that Emails while commuting 'should count as work. The topic is not new, and has garnered coverage in American publications also. More on that follows.

The BBC focus is on commuters. It notes that we have seen an expansion in "wi-fi" availability in recent years, coupled with the ubiquitous nature of smart phones. These two have "extended the working day," according to a recent university study in Britain. This involved a reasonably broad population of "5,000 rail passengers on commuter routes into London." It concluded that "54% of commuters using the train's wi-fi were sending work emails," either getting a head start on the day or catching up on the way home. 

There is supposition that this pattern has been present with smart phones and those who purchase digital plans. However, the train systems have recently been upgrading wi-fi connections on the commuter trains. This change facilitated access for those who had not purchased a digital plan, or who were reluctant perhaps to use their digital plan budget to perform work. This wi-fi expansion provided a somewhat controlled population whose use could be studied.

The BBC contends that the results of the study "raise questions about the work-life balance." And, it questions "if the journey has become part of work, should it also be recognized as part of working hours?" That may be a question of deceiving simplicity. At first blush, time spent working should be considered "working hours." That is the easy part. The harder part is the "blurring of boundaries," as to what is or is not work; The BBC also noted concerns of how that time is counted or accounted for. There is some suggestion that employers paying for such work would want increased "surveillance and accountability" regarding that time on the commute. 

The BBC also sees greater societal benefit in the inclusion of this commute time in the official workday. It contends that the resulting shortening of the "in office" work day would facilitate flex-time. The person who has to be "in office" by 8:00 a.m. and working until 5:00 would necessarily be on the train before 8:00 and again after 5:00. This is familiar to everyone, the dreaded "rush hours." The BBC contends that if a worker is working on the train, that employee could board at 8:00 and could depart from work before 5:00. Thus, some volume of workers shifting their commute time and easing "rush hour" congestion. 

These balance and compensation issues may include examination of employer expectations, employee understandings, and the source of the technology. If an employer is providing the smart phone or other device, should that matter in this discussion? If an employee's performance evaluation includes the promptness of message response regardless of work hours, should that matter?

In America, the compensation issues may be different based upon the type of employment responsibilities of the particular employee and the application of the Fair Labor Standards Act (FLSA). That law may require compensation for some employees, while not for others ("exempt"). And the accounting may be an issue as well. But, what is clear is that technology is empowering people to connect to communications and data. The question is not whether people can connect anymore (in most geographical locations), but whether and when people should connect, and what they are accomplishing when they do. 

There are issues of "down time," with some suggesting that there is mental health benefit to a defined break from the challenges of the job. They see weekends and evenings as time that should be personal, and encourage a balance in work and non-work time. The work environment, in their perspective is a stress generator, which should be switched off periodically. This sentiment was recently discussed in Stress and the Workplace, from the perspective of finding balance in our lives. One critical point of that post is focused on whether work stress affects us at home, and likewise whether home stress affects us at work. 

The BBC notes that "working abnormal or long hours" may have significant impacts upon us. It notes that such work "has long been linked with depression, anxiety and even coronary heart disease," without citing any studies or authority to support those broad conclusions. It similarly extols the benefits of "psychological detachment during off-work time," on reducing "emotional exhaustion" and on improving our productivity when we return to work. Thus, there may be real benefits from clear delineations. 

The BBC notes that this will be a challenge for employers, employees, and regulators. It cites a French law enacted recently, which affords certain workers "the ability to negotiate the responsibility to check emails outside standard working hours." The BBC contends that the effects of this law are "gradually gaining ground." Elsewhere in Europe, employers have placed outright bans on after-hours emails. Some have even configured their email systems to enforce limitations on when email can be sent or received. 

The BBC sites a second survey of 2,000 employees, regarding how often they check their work email during off hours. About 40% said "they checked their emails outside of working hours at least five times a day." As a side-note, I probably average at least twice that. The survey also revealed, consistent with the work balance discussion above, that "a third said they couldn’t mentally switch off at home, with work always looming over them." 

In 2013, Forbes addressed the work compensation issue in America. It focused on a police officer "required" by his employer "to regularly check" email "beyond scheduled work hours." The case went to trial in 2015, and the court concluded that the officers were "performing work" by checking their email. However, the court also concluded that the officers failed to prove that they were "not properly compensated," according to the California Public Agency Labor & Employment Blog

In a Chicago Tribune article regarding that litigation, an employment lawyer was quoted that "it's naive to think no one is going to check their email after work." One company CEO noted the challenge of stopping the practice: "we can't separate work and life," he said. "If it's going to happen, it has to be mandated." Thus, we again reach the earlier conclusion that people are inevitably checking their email or other work communications during their off time. The recent news from the BBC seems to support that as technology is increasingly accessible, we seem to be eager to embrace it and thus work more. 

From the standpoints of work/life balance, stress, and compensation, there are concerns for the employer/employee relationship. The after-hours work may be disruptive, stressful, and possibly the lack of compensation might be illegal. 

The Converse, similar to that discussed in Stress and the Workplace, may be worthy of discussion also. Although rare, it is likely that some people receive non-work emails, texts, and calls while they are at work. Does personal life invade the work environment? I know one worker that has a signal worked out with a teenage child. The worker receives a telephone call or text every day when the child arrives home safely from school. The employee assures me she never replies or responds, it is merely the "notice" of arrival she desires. Possibly that is the most minimal example of non-work communications in the workplace?

I knew a manager at a business who had, through mutual acquaintances, become "connected" on social media with someone that happened to work for her company, though in a different department. As we chatted one day waiting for a meeting to begin, she asked me what I thought her obligation was regarding her noticing that this "connection" often engaged in social media during the workday. We discussed the potential that her "friend's" postings might be generated through an uploading program, and not actually performed at the times represented. Her point, however was whether she should even alert the "friend's" supervisor. Her concern, was that the employee might be disciplined for accessing social media during the workday. Whether real or not, this manager perceived work time being diverted to personal use and acknowledged that discipline might result. 

Perhaps the commentators cited by the Chicago Tribune are correct, that it is inevitable we will do personal tasks at work and work tasks at home? Certainly, doing personal tasks at work may lead to repercussions. Conversely, should doing work tasks at home necessarily lead to some reward, such as overtime or, for the "exempt" employee something like "comp time" away from work? That would not be dissimilar from the BBC suggestion of a shortened work day.

In the broader context of stress, though, it is possible that these wi-fi, and email message issues are merely the tip of the iceberg. Even without a text or email, how many of us spend our commutes or evenings ruminating over the tasks or assignments of the day? How many of us struggle to put work out of our minds in the evening and on weekends? Similarly, how many of us allow personal issues to cloud our heads during the workday?

A worthy read is The Mindful Lawyer, featured in The Florida Bar News recently. On the subject of "leaving work at work," this provides some thoughts on how to disengage your mind from work when you arrive home. Some of those suggestions might apply equally to cleansing your thoughts upon arrival at work (though, likely not the "take a shower" or "Sit . . . with a glass of wine" suggestions). Perhaps the most helpful approach would be to individually, thoughtfully, evaluate how we are each separating work from life, and focusing on drawing those lines for ourselves. 

In this regard, I would suggest that the Chicago CEO's conclusion that "if it's going to happen, it has to be mandated" is likely asking too much of others. If I am eating excessive amounts of M&Ms,  maybe it is my personal responsibility to recognize the implications and regulate my own behavior? If our employer locks us out of email, it will not prevent us from ruminating upon or worrying about work. If we are to make this work/life balance separation, it will require our recognition, analysis, commitment, and attention. If we are to have a balanced work/life relationship, the answer likely lies with us and those who surround and care about us. 


Thursday, January 24, 2019

How About Just a Sincere Thank You?

California's First District Court of Appeal recently rendered Canovas et. al. v. State Personnel Board. In it, three employees of the California workers' compensation system sought judicial relief after they were fired by the Department of Industrial Relations (DIR). The case involves some allegations that are downright disturbing, some that might be mere errors of judgement, and it is worthy of discussion both substantively and because of procedural observations of the Court.

Three "long-term employees" were investigated. All three worked in a unit that was responsible for settlement of certain workers' compensation claims. The DIR had a policy that prohibited those employees from receiving gifts "from vendors with whom the DIR employee regularly does business." The prohibition is qualified, prohibited only "if the gift is intended to reward the DIR employee for doing business with the gift giver." (In other states prohibitions on gifts may be more absolute). The employees received training on the rule and were required to complete an annual form regarding "gifts of $50 or more."

Apparently, there was a period during which enforcement of the rules was somewhat lax, until 2012. A pattern or practice had therefore evolved of vendors "sometimes taking DIR employees to lunch," giving them "gift cards," and "edible treats" delivered to the "DIR offices." In 2012, a supervisor (one of the three employees) was reminded of the gift policy, and instructed to review the policy with those she supervised. She elected not to do so.

Thereafter, the lunches, "promotional gifts," and "food to DIR offices" continued. The supervisor was later "again reminded . . . of the gift policy," and a "confirming memorandum" was sent. The supervisor then held a meeting and instructed her team "not to accept gifts from vendors." Despite this, the behavior continued. In 2013, the three employees each elected "not (to) disclose vendor gifts in their signed (disclosure) Forms." Later, there were allegations beyond the accepting of gifts. An "anonymous letter" accused the supervisor "required vendors to bring food and gifts." Thus, gifts were allegedly accepted, but also solicited. 

During the ensuing investigation, the three "denied knowledge of the lunches and gift cards." The DIR later "heightened its investigation by conducting investigatory interviews and advising those interviewed that failure to provide accurate, honest, and thorough answers could result in discipline, up to and including dismissal." The three were thereafter interviewed, and "each denied, in their separate interviews, knowledge of the vendor lunches and gift cards."

In August 2014, each was terminated, for the receipt of gifts, falsifying their reporting forms, "falsifying time sheets, and being dishonest in their investigatory interviews." Other employees admitted their dishonesty, and were suspended instead. The three claimed that they were terminated because of a discrimination allegation that the supervisor had previously made against her superior.

One interesting side issue is discussed in the opinion regarding investigation notes prepared by a DIR attorney involved in the investigation. The three employees sought those notes through discovery, but the state declined to provide them. They also tried to force the attorney to appear as a witness. The Administrative Law Judge (ALJ) denied their motion to force the state to produce them, and did not make the attorney testify.  

A second interesting side issue raised by the plaintiffs was there perception that the ALJ was intemperate or biased. 

Ultimately, the ALJ concluded that the three employees "were dishonest and that retaliation was not the primary basis for the termination, and he upheld the termination as proper." A constitutional trial court declined to change the ALJ's conclusions, and the matter was ultimately reviewed by the California First District Appellate Court. The Court concluded that the ALJ's findings, that the firings were not retaliatory or related to the discrimination complaint, were supported by competent evidence. It conceded that the timing of the investigation was "suspicious," but upheld the ALJ conclusions. There were thus serious implications of receiving gifts, soliciting gifts, and attempting to hide gifts. 

On the first side issue, the Court concluded that DIR attorney was acting as counsel through the investigation. It noted particularly that she was "listed as counsel on many" pleadings, and that the other attorneys involved corresponded with her as counsel. It held "whatever information she had, therefore, she gained as counsel of record for a party." Furthermore, it noted that the interviews the attorney attended were also attended by another DIR employee, whose notes were provided to the three plaintiffs. Thus, there was support for the ALJ decision not to compel her to testify or to produce her notes from the investigation. 

The Court concluded that there was no justification for calling the attorney as a witness, or compelling the production of her notes, saying that plaintiffs:
"fail to show how an examination of (attorney) Holton would have furthered the search for the truth, rather than the sport of targeting opposing counsel with hostile questioning in retaliation for doing her job."
It appears that the Court viewed the attempt to involved the attorney as a witness as a ploy, a litigation strategy, a "sport." Litigation is not a pleasant environment. It depends on professionals and professionalism. Everyone involved should perhaps remind themselves of that periodically. 

As to the second side issue, the ALJ's handling of the plaintiff's claims and litigation, the Court concluded that their allegations were an "argument of last resort." The Court found that no evidence supported bias, but reminded that "Judges, of course, have the sometimes difficult job of maintaining discipline and running an orderly proceeding." In that process, the Court said, "litigants may sometimes confuse the exercise of a firm hand with a display of bias or intemperateness." It reinforced a critical point that it is "not 'unfair' of " an ALJ to "credit the testimony of" particular witnesses over the testimony of others. Determination of which witnesses to accept or credit is ultimately what judges have to do in deciding disputes. 

This is an interesting decision. It reinforces and describes the roles of attorneys, and appropriate application of the work-product privilege that may protect them from disclosing their thoughts or testifying. It reminds us that litigation can become involved, heated, and perhaps personal between parties. It is the role of the judge to maintain order and assure a fair hearing throughout, balancing the rights of all involved. Those procedural reminders are worthy of reading. 

But substantively, the decision also reinforces a point that is worthy of remembering. State employees are bound by the rules of state government. Those rules often preclude the acceptance of gifts, not to mention the solicitation of gifts. Florida rules certainly do. It is not appropriate to offer gifts to Florida state employees, and it is not appropriate for such employees to seek them. Time and again I am told that attorneys and others merely wish to acknowledge and recognize our public service when offering some token of appreciation. 

But, to avoid the kind of issues illustrated in Canovas, why not just offer a sincere and heartfelt "thank you?" Whether verbally delivered, or on card, or in an email, that thank you will let someone know you appreciate what they do. It is by far a more  appropriate acknowledgement than offering some gift which might be misinterpreted and which could lead to untoward circumstances for the employee. 

Tuesday, January 22, 2019

Limine and Workers' Compensation

In American legal proceedings there are debates of law and facts. The fact debates can be illustrated easily enough. Imagine that two motorists are involved in a vehicle collision at an intersection. Each claims that their signal was green and that they therefore had the right-of-way. The fact to be determined is who had the green light. Both may assert they had it, but after adducing evidence on this topic, someone will have to make a "finding of fact" deciding which actually had the green light. The "finder of fact" determines which driver had the green light.

There are also debates of law. But those only describes "what was so?" That is, was the light was green, yellow, or red. The law must then be applied to that fact, and someone must determine "so what?" That is, what does the law say about the driver with the green light and the right-of-way, and the other driver who did not?  

In a large volume of cases, these two roles are separated. A judge presides over the dispute and generally makes decisions about the law. She or he decides disputes about who may testify, what documents are admissible, what may be too inflammatory to be admitted even if it is in fact relevant. But, those fact decisions, whether a particular driver had the green light, are very often decided separately, collectively, by a jury. Though the judge in that setting will provide instructions on the law to the jury, the jury will make various ultimate decisions about applying the law in reaching its ultimate conclusions as well. 

By the time a case reaches trial, the judge may have presided over numerous preliminary disputes between the parties, usually raised by motions. The judge may be reasonably familiar with the case, the specific disputes, and the lawyers involved. The jury, conversely, will be selected shortly before presentation of evidence begins. Within at least a somewhat confined period of time, it will learn the admissible facts and evidence, make its determinations, and then be dismissed. Any post-judgement issues will again be the responsibility of the judge. 

It is critical that the jury, as "finder of fact" is afforded access to the admissible evidence in the case. From that evidence it will collectively, and hopefully collegially, make its factual determinations. However, it is also important and sometimes critical that the jury is shielded from information that is not admissible for whatever reason. This may be because the information lacks trustworthiness for a variety of reasons or that the evidence is so inflammatory it is inappropriate (often phrased "more prejudicial than probative). 

There exists therefore a vehicle by which lawyers can bring the judge's attention to disputes about evidence prior to trial. It is among the many types of motions that may be determined by the judge in the course of developing a case for trial. It is called a "motion in limine." LegalDictionary.net defines this as:
"A motion in limine is a motion made to the court before a jury has been selected in either a civil or a criminal case. Motions in limine ask the court to order the opposing party, its counsel, and witnesses not to talk about, or even mention, certain facts or evidence in the presence or hearing of the jury."
By definition, a motion in limine is about the jury.

In order to succeed, that is in order for the judge to grant a party's motion in limine, the evidence that is seen as objectionable will have to be described to the presiding judge. That judge will likely have to review and evaluate that evidence in significant detail. Once the judge understands the substance, purpose of, and objection to that evidence, then the judge decides if the jury should in fact hear or see that evidence. 

But, not all legal proceedings involve a jury. A great many trials are conducted only by a judge, referred to as "bench trials." In such proceedings, the judge fulfills a dual role of making the legal determinations and simultaneously being the "finder of fact." Among the proceedings that generally involve bench trials are workers' compensation proceedings in the vast majority of American states. 

In a bench trial proceeding, one might validly question the value, purpose, or even propriety of a motion in limine. This may seem obvious. Without a jury to protect from the information, what is the point? The Florida appellate courts have described that 
“The purpose of a motion in limine is to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial.” Dailey v. Multicon Development, Inc., 417 So.2d 1106, 1107 (Fla. 4th DCA 1982); Buy-Low Save Centers, Inc. v. Glinert, 547 So. 2d 1283 (Fla. 4th DCA 1989)."
The purpose of the tool is to shield the finder of fact from inappropriate or inadmissible evidence. However, in a workers' compensation, or other bench, proceeding the only way to have a motion in limine granted would be to show that very evidence to the finder of fact (the judge). The idea of showing a judge evidence for the purpose of convincing the judge that this judge should not even hear the evidence mentioned is antithetical: "look at this, this is bad, look at this carefully, then please enter an order that prevents us from even mentioning to you what we just showed you and told you all about." 

It can be confidently said that a motion in limine in a workers' compensation proceeding (without a jury) is neither effective for its definitional purpose (shielding the jury) nor logical. Perhaps, there will be instances in which some evidence is inflammatory, embarrassing, or too prejudicial. It may be that such evidence should be excluded on the basis of being "more prejudicial than probative." However, that decision can generally be raised for determination at trial. In general, the topic is not one for a motion in limine

That does not mean that a motion might not be required regarding particular evidence. In preparation for trial, it may be imminently helpful to all parties to have an understanding of what evidence will be admitted and what will be excluded. However, those issues are more aptly considered by the trial judge through a "motion for evidentiary determination," or a "motion to strike," or a "motion to exclude" evidence, or a "motion to admit" evidence. The point there is not preventing mentioning the evidence in front of the judge (in limine), but gaining understanding of what will or will not be admitted. Certainly, understanding the scope of evidence in advance can be a great assistance in preparing for trial. 

Having presided over hundreds of bench trials, my perception is that the vast majority of evidence disputes are raised at the trial, and efficiently resolved at that time. Though there may be various issues appropriately raised for ruling prior to trial, that has not been the norm in my experience in workers' compensation. Whether to raise the issues in advance or not is up to the party that wishes for that advance ruling, and depends upon how much that party values or needs the piece of mind that comes with it. 

Armed with an advance ruling, an attorney and party may be better able to make sound decisions about their own litigation plans. For example, if there is discussion that one driver was "under the influence" or "impaired" in the hypothetical car accident described above. Perhaps that discussion comes from a single, peripherally involved, witness who lacks any training or scientific data to support the conclusion of impairment (more "prejudicial than probative"). A motion to strike that testimony, before trial, may clarify whether such "impairment" testimony will be admitted. Armed with that evidentiary conclusion, that driver and her/his attorney can make an informed decision as to whether they must prepare to present evidence to counter the allegation of "impairment." And, that may save the party time and money in preparation. The value is clear. 

However, in the bench trial setting, this would not be a "motion in limine," but a "motion to strike testimony regarding impairment," or a "motion to exclude evidence of impairment." The effect, that is foreknowledge of the ruling and the ability to better plan for trial, is the same perhaps. However, the labeling ("strike" or "exclude") of the request is both more descriptive and clear. 

As a final thought, applicable to all motions, the clarity with which a lawyer expresses how such a ruling is important and helpful, the explanation provided to support such a motion, and the citation of legal authority (statutes, rules, case law determinations) in support, will all likely be helpful to the trial judge in making a sound decision regarding that particular dispute. In other words, state clearly what is desired, explain clearly why it is important, and provide legal citations in support.

These tips will help the party to get a determination. They apply as aptly to the opportunity (Rule 60Q6.115) for the other party to file a "response" to that motion. That response should as clearly explain the opposing view (why no ruling or a different ruling is appropriate), what outcome the opposing party seeks, and should cite legal authority. It is surprising how often the opposing party declines or neglects to file any response to a motion. 

Sunday, January 20, 2019

Epic New Prime

That headline sounds like the title of a new Transformers movie. But, alas, it is merely a reference to another discussion of the law. (curmudgeon in the gallery "what does the law have to do with workers' comp?" - I miss the Muppets too). The Supreme Court of the United States (SCOTUS) issued a decision recently in New Prime Inc., v. Oliveria, No. 17–340 (January 15, 2019). Not a workers' compensation case, but an employment case of significance. The decision illustrates adherence to the meaning of words. It also may provide guidance in the context of employment generally, independent contractors, and employees. It is noteworthy in that the court was unanimous, though Justice Ginsberg concurred and wrote a short opinion as to why. 

The decision regards a relationship between a trucking company and a truck driver, memorialized in a written contract. The driver sued New Prime, claiming the agreement deprived him of appropriate wages, and asked the court to certify the case as a "class action," essentially allowing a single case to represent the interests of more than this one driver. 

The written contract referred to the driver as "an independent contractor," and it required all disputes regarding the contract to be arbitrated rather than litigated. Arbitration is a form of alternative dispute resolution, in which the two disagreeing parties hire a private adjudicator(s) to hear the case and render a decision. The process limits various legal rights contractually. Less than a year ago, the SCOTUS noted the benefits of arbitration: "its speed and simplicity and inexpensiveness" in Epic Systems Corp. v. Lewis, No. 16–285 (May 21, 2018). 

In Epic Systems, a five to four decision authored by Justice Gorsuch, the court concluded that the "Federal Arbitration Act generally requires courts to enforce arbitration agreements as written." That is, in most employment contracts such a clause will be given effect. The Court in Epic Systems was unpersuaded by arguments that the National Labor Relations Act contradicts that law or compels an outcome unfavorable to arbitration in employment contracts. Justice Ginsberg dissented there and wrote an opinion explaining her disagreement with the outcome and concern that the Court's decision left employees with claims "small, scarcely of a size warranting the expense of seeking redress alone," without a viable remedy. The dissent urged the legislative branch to act, and change the law in response to the Court's interpretation. 

New Prime was also authored by Justice Gorsuch. Similarly, New Prime asked the Court to enforce the Federal Arbitration Act to compel arbitration. The driver/worker, however, contended that the Act was not applicable because its terms exempt certain contracts involving "transportation workers." New Prime contended that "'contracts of employment' referred only to contracts that establish an employer-employee relationship and not to contracts with independent contractors." Thus, its conclusion that the driver was not an "employee" would render the Arbitration Act seemingly moot as to exempting contracts from enforcing arbitration. The Court concluded that the fundamental issue was whether the driver was an employee or an independent contractor. 

Justice Gorsuch noted that the Arbitration Act "does not extend to all private contracts." It applies to the contracts and agreements that fall within the definitions and parameters of that law. The Court also noted that “'nothing' in the Act 'shall apply' to 'contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Presuming that a truck driver may engage in interstate commerce (the U.S. Supreme Court analyses have traditionally been very broad in defining connections to interstate commerce, see, Wickard v. Filburn, 317 U.S. 111 (1942); Katzenbach v. McClung, 379 U.S. 294 (1964); and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), the Court analysed the content of the New Prime contract. 

Thus, the real dispute in New Prime is whether the driver's contract as an "independent contractor" is or is not a "contract of employment." In deciding a threshold question of whether an arbitrator or court should decide that question, the Court reminded that it is "a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’” The interpreters of the law, the courts, are to give meaning to the words used by legislators, the meaning those words had at the time they were chosen and used. 

Explaining the importance of that maxim, the Court noted that "if judges could freely invest old statutory terms with new meanings, this Court would risk amending legislation" through interpretation. It noted specifically that people rely upon statutes, and such judicial amendment, assigning words new and unintended meanings, would upset the stability of the very people for whom laws exist. The predictability of the legal system is one of its great strengths. Thus, the Court turned to analysis of the phrase "contract of employment" "at the time of the Act’s adoption in 1925." 

In analyzing dictionary definitions from that time, the Court concluded they "tended to treat 'employment' more or less as a synonym for 'work.'” Its research did not support that '''contract of employment'” necessarily signaled a formal employer-employee relationship" as opposed to an independent contractor relationship. In reaching that conclusion, the Court found support in Congress' use of other words surrounding that term, such as "workers," rather than "employees" specifically. That conclusion may be of interest in the context of a system labelled "workers" not "employees' compensation" in various jurisdictions? 

The Court rejected the contention that when the Act was passed that "'employee' and 'independent contractor' had already assumed distinct meanings." It concluded that the specific "employee" has a relationship to the term "employment,” but that the scope of "employment" in 1925 was not specific to, limited to, employees as opposed to other workers. It conceded that "contract of employment" certainly referred to employer/employee relationships, but concluded that did not mean it could not refer to more. This argument of New Prime is important. It is essentially similar to arguing that various court cases perhaps interpreted that "vehicle" includes cars, and that therefore that should be all that "vehicle" includes. But, the Court's conclusion is essentially that certainly those authorities confirm cars are vehicles, but that does not foreclose that "vehicle" might nonetheless equally include trucks, bicycles, or skateboards. 

In rejecting the arguments of New Prime, the Court acquiesced in the contention that the Arbitration Act may not be a model of legislative drafting. But, it concluded "courts, however, are not free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal(s)," such as "speed and simplicity and inexpensiveness." The Court stressed that the role of Courts is instead to "respect" the action which Congress did take, to interpret the law Congress did pass. And, that interpretation should be based upon the plain meaning of the words and phrases that the people's elected representative chose to use. 

Justice Ginsberg, who dissented along with three others in Epic Systems, concurred in New Prime. In New Prime, She did not call upon Congress to address and adjust the "bumpy statutory texts," or provide better clarity or definition. She wrote to reiterate that “[W]ords generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute,’” as the unanimous Court held. However, she cautioned that Congress may "design legislation to govern changing times and circumstances." Therefore, she reminds, Congress may, when selecting a particular term, "authorize courts to oversee a term’s ‘dynamic potential.’” 

Therefore, while agreeing with the outcome in New Prime based upon a strict reading of the actual words and their meaning, she contends that generally a "statute should be construed not technically and restrictively, but flexibly to effectuate its remedial purposes.” There may be critics who read this dissent as essentially "when it leads to the outcome I want, stick to the actual words and when the actual words fail to reach the result I want, then let's be flexible and get to my preferred outcome instead," as she would have in Epic Systems

The two cases, the two outcomes, and the writings of Justice Ginsberg in each provide insight into the Court and the interpretation of statutes. There are those who perceive that adjudicators too often arrive at outcomes or conclusions, and then craft an explanation to justify that outcome. In other words, they pre-determine the destination and then back-track to develop the route. Instead, it is more appropriate to analyze the evidence and the law, and allow them dictate the outcome. That is, to follow the evidence and law, the route, and arrive at the destination to which they lead. 

It is worthy of note that the New York Times was less than complimentary of Justice Gorsuch and the Court's "more conservative justices" when reporting on Epic Systems. It quoted the perspective of a single law professor concluding Justice Gorsuch “appears to have put his cards on the table as firmly in favor of allowing class actions to be stamped out through arbitration agreements.” Perhaps, instead, Justice Gorsuch instead is "firmly in favor" of following the law, as written by the people's elected representatives? That may be the real lesson of New Prime

When one does follow the law, there will be instances in which arbitration is mandated (Epic Systems) and others when it is not (New Prime); not because of some visceral feeling or sentiment about arbitration, but because of what the legislators wrote. In the interest of separation of powers, the people's elected representatives' laws should be respected by the courts. In the interest of people being able to rely upon the law and plan their business and personal interactions, the plain meaning of laws should be respected by the courts. 

There may be times when those statutes are not clear. There may be times when those statutes are contradicted or superseded by other statutes or constitutional constraints. But, absent those exigencies, perhaps it is more appropriate for courts to respect the legislative function, follow the law and evidence, and consistently go where they lead?

Thursday, January 17, 2019

Cascading Errors and our own Humanity

I advocate that judges should prepare orders. My feelings about how lawyers and parties seek relief are as clear. The Rules of Procedure for Workers' Compensation Adjudications are consistent with both of these. And, these are not new topics, see On Motions, Sanctions and Recriminations

This came back to me recently when I was presented with a riddle to solve. An OJCC staff had uploaded an order regarding approval of attorney's fees, but the order was uploaded to the incorrect case docket. As I dug back through the paperwork in search of the disconnect that had resulted in this, I located the Motion for Approval. It had been filed appropriately, but the attorney had included a "proposed order." The attorney, I am certain, did so with the best of intentions, seeking to minimize the time required to receive an order back from the Judge's office. However, in a spectacular error, the attorney put an incorrect case number on that proposed order. 

That led me to question how such an error could occur at the lawyer's office. There are two ways to begin a case in the Florida workers' compensation adjudication system, the OJCC. First is to file a Petition for Benefits (PFB) and second is to file a Request for Assignement of Case Number (RACN). These choices are in Rule 60Q6.105(1) and (3). And, in this situation, an attorney had filed an RACN, a case number was assigned, and the case was assigned to a Judge of Compensation Claims. 

About a month later, the other attorney involved in the case filed a second RACN for the same injured worker, which the OJCC database accepted. Generally, the database and e-filing system will catch an error like that. But, in this case, the second attorney used a different date of accident, a few days after the date of accident used by the attorney that filed the first RACN. Thus, at that moment, the same injured worker had two open cases for what was the same claim (albeit with two different accident dates stated). 

Within minutes, the second attorney noticed the error and filed a Notice of appearance in the case that had been created by the first RACN. About two hours later, the attorney filed a "Notice of Error" in the second case, regarding the second RACN. This stated that the lawyer "files this Notice of Error in requesting case number files this Notice of case number filed in error." And, that redundancy would create no real harm, except that redundancy is all that this notice said. It did not say (1) what the error was, or (2) what perhaps could be done to alleviate the error. This was an attempt to follow Rule 60Q6.108(1)(h). But, a notice of error is not of significant help to anyone if it does not describe the error. 

The Judge's office did not notice that there were now two cases pending with the same injured worker. When the second RACN was filed, it could perhaps be hoped that staff would notice its duplicate or redundant nature. But, the OJCC staff process many incoming filings every day, in a multitude of cases. If the document does not make a statement, describe a problem, or ask for relief, there is not much for staff to work from. But, about a week later, one of the Central Clerks noticed the duplication, the second case number was closed, and an Order Closing File was issued by the Deputy Chief Judge regarding the second case number. 

About two weeks after that, the attorney filed the Motion for Approval of Child Support and Attorney Fees in that first case. As a side note, the attorney that filed the Motion also included a two-page cover letter that essentially said "here is a motion," followed by a series of documents, the first of which was titled "Motion." We do not need or want cover letters, see Rule 60Q6.108(1)(c) which specifically says do not file "correspondence to the judge or judge's staff." The cover letter was two pages long and conveyed nothing of value or substance. It was, essentially, a waste of everyone's time and of data storage space. 

Somehow the process in the lawyer's office had been tainted with that second case number. The unnecessary cover letter had the correct (first) case number stated upon it. The documents were all filed in the correct (first) case docket. But, the Motion and the proposed "Settlement Order" had the incorrect, second, closed case number on them. 

Notably, the proposed order should never have been submitted with the motion. Rule 60Q6.103(4) clearly states:
Except as provided in subsection 60Q-6.115(3), F.A.C., proposed orders shall not be submitted unless requested by the judge. 
They shall be clearly indexed in the docket as “proposed orders” and shall be sent to all other parties or, if represented, their attorneys of record prior to being submitted to the judge. 
Proposed orders shall be a separate document and not be included as a part of a motion.
This order (1) was not requested by the judge, (2) was not apparently sent to other parties prior to filing, and (3) was an integrated part of the Motion for Approval filing, not a separate filing. It was inappropriate in each instance. The Judge and staff did not notice (1) that the order stated a case number different from that in which it was filed. Perhaps, they were misled by that unnecessary cover letter that listed the correct case number?

And, if the OJCC staff or judge had keyed that case number, to prepare an order, it is likely that the error would have been noticed. That the Motion was not present in that case docket would likely have been a red flag that stopped the process and resulted in some investigation and review. But, the proposed order alleviated that check and balance in the process. 

The erroneous proposed order was signed by the judge. The OJCC staff then uploaded that order based upon the erroneous case number that was stated on it. Thus, the order approving fees and child support allocation was uploaded to the wrong (closed) file. Days later, apparently upon discovery of the error, the order was uploaded again, but again in the wrong case. The point of that repetition remains unclear (there is no documentation or explanation). 

A complication with service and notice then occurred. Since the first attorney had been working using that first case number, and since that second case number had been rapidly closed, the first attorney never filed a Notice of Appearance on that second case. Thus, when the order was uploaded in error to that second case, the first attorney did not receive a copy of the order. Unfortunately, it was this first attorney whose client was to make payment pursuant to the order. The implication of that attorney receiving no notice of the approval will be readily apparent. 

The first case number remains "active" with this office today. Nothing has occurred to close it (such as an order approving the settlement). The second case has been "inactive" since the order that closed the file about a week after it was established and the second attorney's error was discovered. It remained inactive all that time, despite the uploading of two Orders Approving Attorney Fees and Child Support Allocation. And, to this day, the date of accident stated in that second RACN has been settled, while perhaps the (different) date of accident stated in that first RACN remains potentially active and unsettled. 

The lessons of this long description are several. First, filing documents is effective only if they say something. If filing a Notice of Error, Rule 60Q6.108(1)(h), say what the error is ("this was mistakenly filed when Claimant already has an open case for this accident, case YY-000000, and this case should be closed and deleted"). Or, if you seek relief from the Judge, file a Motion, Rule 60Q6.115(1), state the error as above, and "move for entry of an order closing" the file or "consolidating the erroneously instigated case" so that there is some connection established and noted between the two. This "motion" advice is likely the best. Whenever action is needed from this Office, a motion is likely a good place to start. 

The second lesson is being careful and diligent. Certainly, this series of unfortunate events illustrates that multiple people had opportunities to catch the various errors. Everyone involved, attorneys, judge, and staff might have caught the errors and made corrections. Errors included opening the second case number, the misstatement of accident date, the misstatement of case number on the Motion, the inclusion of a proposed order against the rules, the misstatement of the case number on that proposed order, the filing of the cover letter, and the uploading of the order to the wrong case docket (albeit the one with which that proposed order was labelled). There were multiple errors and multiple opportunities to prevent the ultimate outcome. That is true in every case and diligence has to be the ultimate goal of us all.

But, the third lesson, or reminder, is that accidents will happen, errors will occur, and nobody is perfect. We are all human, and will make errors. Thus, once you have accepted lesson three, refer back to lesson one for the advice on how to alleviate the effect of our collective and individual humanity. File a motion or a notice, be specific as to what needs correcting, and ask for the assigned judge to rectify the error. That methodology, with details, will both help to correct the error(s) and will establish a record that documents both how the situation occurred and how it was concluded. And that may be helpful to someone in years to come when that still "active" OJCC file comes back to someone's attention. 





Tuesday, January 15, 2019

Dissing Daubert?

In 2016, I penned To D or not to D? That It appears is the Question. The evolution of constraints on evidence in Florida legal proceedings has been an interesting one. It has come to the fore again recently with consideration of the Florida Supreme Court's recent decision in Delisle v. Crane Co., ___ So.3d ___, 43 Fla.L.Wkly S459 (Fla. 2018). The conclusion of the Court was essentially that the Legislature's adoption of the Daubert" standard for Florida courts was unconstitutional. The Court concluded that it, and not the Legislature, is empowered to determine the procedural processes applied by Florida courts. 

Thus, despite the enactment of the Daubert standard by the elected representatives of Floridians, the Court struck the standard. It was not a unanimous decision. Three of the Justices dissented: Canady, Polston, and Lawson. Some who watch the Court may perceive that these three have joined together in dissent in other previous cases. And, with the recent retirement of Justices Quince, Lewis and Pariente, some observers perceive the potential for different analyses in future decisions. 

Delisle is an intriguing decision, written by Justice Quince. Two of the Justices in the majority, Pariente and Labarga penned separate concurring opinions (agreeing with the outcome and providing explanation of why). Coincidentally, Justice Pariente agreed with Justice Labarga ("concurs"), and Justice Labarga agreed with Justice Pariente (a minor curiosity in itself with multiple judges writing and agreeing with each other). The decision was recently featured prominently in a news report on WorkCompCentral: High Court's Ruling Could Trim Legislature's Plans on Comp Rules, December 27, 2018. 

Notably, Delisle is not the first time that the Florida Supreme Court has considered the Legislature's adoption of the Daubert standard. See In re Amendments to the Florida Evidence Code, 210 So. 3d 1231 (Fla. 2017). And, since Delisle was decided various Florida appellate courts have rendered decisions following that directive. There are only eight states that cling to the Frye standard that Delisle reinstated in Florida (CA, FL, IL, MD, NJ, NY, PA, WA); according to The Expert Institute. The Daubert standard comes from the United States Supreme Court, Daubert v. Merrill Dow Pharmaceutical, 509 U.S. 579 (1993). Some will struggle with how a standard created by the nation's highest court, applied in the vast majority of U.S. states, could be unconstitutional; but, Florida's recent decision is not that the standard is, but that the method of adoption by the Florida Legislature is unconstitutional. 

It is pertinent that in Florida the Judges of Compensation Claims are required to follow the “Evidence Code.” Perry v. City of St. Petersburg, 171 So. 3d 224 (Fla. 1st DCA 2015); See, e.g., Alford v. G. Pierce Woods Mem'l Hosp., 621 So. 2d 1380, 1382 (Fla. 1st DCA 1993). See also, U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 107 (Fla. 2002)(“First, the Florida Evidence Code applies in workers' compensation proceedings.”); State Department of Corrections v. Junod, 217 So. 3d 200 (Fla 1st DCA 2015)(“an EMA opinion also must comply with the Florida Evidence Code”). This evidentiary standard issue is potentially important in consideration of a variety of expert medical opinions in Florida workers' compensation. Despite these iterations, might the appellate courts have meant to say the OJCC is to follow the Court's evidence rules? Would that be consistent with the Court's conclusions regarding its authority over the OJCC?

As discussed in To D or not to D, the Florida Legislature adopted “the Florida Evidence Code.” in 1976. The Florida Supreme Court avoided any debate as to the applicability of those requirements by adopting the "code" as Florida's evidence rules in 1979. There is some tension as to what is or is not "procedural" and thus whether and what the Court or Legislature may define and require respectively. And, since 1979, the Legislature has occasionally made amendments to the Code, many of which the Court has endorsed through similar adoption. Those are detailed in that previous post, and so are not repeated here. 

As an aside, it is interesting that when the appointed Court considers those changes, it relies upon the recommendations of The Florida Bar, an agency interrelated with the Court. Recently, there has been discussion of states requiring lawyers to belong to bar associations, and thereby seemingly endorse or at least finance their positions and recommendations. See Bar Membership Debate. As The Florida Bar took its "majority" position on Daubert, was that the position of each member of the bar? According to the Court, Bar members were split on the issue Daubert adoption, but the Bar adopted a position nonetheless. 

In 2017, the Court returned again to the Florida Evidence Code, regarding the Legislature’s adoption of the Daubert standard. See In re Amendments to the Florida Evidence Code, 210 So. 3d 1231 (Fla. 2017). The Court then “declined to adopt” the “changes to sections 90.702 and 90.704 of the Evidence Code” (The “Daubert Amendment”). And, the Court similarly declined to adopt legislative “amendments to section 766.102.” These decisions were each “to the extent they are procedural.” 

The Court expressed deference to the “case and controversy” foundation. That is, a preference to decide issues of constitutionality in a real case situation, rather than merely in consideration of adoption of a rule. This was not the first time. There are various "In re Amendment" decisions in which the Court has noted that the appropriate process for considering the merits of a statutory change would be in an actual case. In 2017, the Court commented that “the Court does not address the constitutionality of a statute or proposed rule within the context of a rules case” (noting four previous instances of such judicial restraint). 

The Court’s various determinations to decline adoption of elements of the Evidence Code, as Rules of Evidence, have all been upon the foundational conclusion that those are procedural court rules over which the constitutional separation of powers furnishes unfettered and plenary authority to the Court rather than the legislature. There are those, as discussed recently by WorkCompCentral, who see a similar separation of powers argument regarding legislative delineation of rules or procedures in workers' compensation. 

For decades, the Florida Supreme Court promulgated procedural rules for workers’ compensation. In 2004, however, the Florida Supreme Court concluded that “separation of powers,” constitutional constraints, precluded it from doing so. It held “this Court has no authority under the Florida Constitution, nor has this Court ever had the constitutional authority to promulgate rules of practice and procedure for” the OJCC. Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474, 478 (Fla. 2004). The Court has plenary power to establish rules for the courts, and no power to establish rules for the OJCC. 

This returns us to the 2018 Florida Supreme Court decision in Delisle v. Crane Co., __ So. 3d __, 43 Fla.L.Wkly S459 (Fla. 2018). There, the Court discussed the distinctions between substantive and procedural law, and noted “the distinction between substantive and procedural law, however, is not always clear.” The Court reiterated the constraints of separation of powers in this regard (Article II, section 3 of the Florida Constitution). It concluded that “the Legislature exceeded its authority in adopting statutes we found to infringe on the authority of this Court to determine matters of practice or procedure.” (Emphasis added). 

Finally, the Court concluded that “Section 90.702, Florida Statutes, as amended in 2013, is not substantive,” but “this statute is one that solely regulates the action of litigants in court proceedings.” That is, the statutory Daubert standard is entirely procedural. On that basis, the Court concluded that the Daubert standard enacted by the legislature, that procedural process, is not constitutional as it is the Legislative branch dictating procedure to the co-equal Judicial branch, contrary to separation of powers. The unconstitutional element is no Daubert, but the fact that the Legislature adopted that procedure for the Courts. 

Admittedly, on this basis, one might conclude that the Daubert standard does not apply to any legal proceedings in Florida, that it is “unconstitutional” as enacted by the Legislature. However, Delisle is a conclusion that the Legislature may not dictate procedure to the Courts. Delisle did not involve workers' compensation, a process and procedure that is clearly not a court, according to the Supreme Court. Though the Court determined the Legislative imposition of Daubert on the Judiciary to be unconstitutional, diligent research has found no such determination regarding the Legislative adoption of that standard in the “code” as opposed to the “rules of evidence.” Nor has research identified any decision that holds the Legislature may not dictate procedure regarding workers' compensation. 

It is noteworthy that all authority of the Florida OJCC is the creation of legislative delegation. The Legislature has authority over a great many facets of Floridian's lives. In various instances, it acts to delegate that authority to some state agency. The same legislative delegation occurs in the federal government. Every state agency must have authority to even exist. Some may be created by the constitution, a delegation by the people, while others are created by the legislature. 

Chapter 440 is a statutory delegation, in which Florida workers' compensation is created, defined, and described by state law; that is by the Legislature. That Chapter includes a variety of procedural processes, processes created by the legislature and different from court processes. An excellent example is Section 440.29(4): 

“All medical reports of authorized treating health care providers relating to the claimant and subject accident shall be received into evidence by the judge of compensation claims upon proper motion. However, such records must be served on the opposing party at least 30 days before the final hearing. This section does not limit any right of further discovery, including, but not limited to, depositions.” (Emphasis added).

This statute directs that certain medical records will be evidence in Florida workers' compensation proceedings. Certainly, that direction must be analyzed mindful of the multiple admonitions of "the Florida Evidence Code applies in workers' compensation proceedings” (see supra) This is not the only example. In another, the Legislature has limited which experts may express opinions in Florida workers' compensation disputes, see Section 440.13(5)(e) 

Thus, it may remain unclear whether Daubert and the duly enacted Florida Evidence Code apply to workers' compensation disputes. It is possible that just as the Legislature may not delegate its authority regarding workers’ compensation rules to the Court, neither can the Court regulate workers’ compensation procedure regarding evidence. However, statutory procedural constraints on workers' compensation proceedings are numerous. And, as yet, there is no decision clearly addressing whether Daubert applies in workers' compensation. Perhaps in time there will be.