Thursday, May 30, 2019

Anger and E-mail

In April 2019, the Supreme Court of Florida (SCOF) rendered approval of a consent judgement in The Florida Bar v. Spradley, Case No SC18-1592. The case is instructive on several points, and worthy of discussion.

The Florida Bar instituted an investigation regarding complaints about this attorney in 2018. It made inquiries to the attorney, but she failed “to respond to investigative inquiries." As a result of that failure, the attorney was suspended on March 28, 2018. The failure to respond is itself an interesting point. Despite the attorney’s failure to respond the Bar inquiry proceeded.

In the Florida legal conduct process, a referee is appointed to hear allegations and defenses. Due process is afforded and ultimately the referee issues a report regarding the findings, legal authorities, and recommended outcome. Ultimately, in Florida, the decisions of whether and what punishment to impose rests with the Supreme Court.

This attorney was accused of responding to a motion filed in a case by opposing counsel. The responses were in the form of email. I have repeatedly noted that email is an outstanding, efficient, and effective communication tool. Unfortunately, it lacks some of the delays to which lawyers have heretofore become accustomed. In the old days, written responses were often dictated, typed by a staff member, and later provided to the attorney for signature. That delay was a burden, but also a benefit as it required time and time is often good for reflection and calming.

The email tool, and its cousin the text message, are far easier, and quicker. They are often produced by lawyers personally, quickly, and sent. Unfortunately, a great many people come to lament the content of email. An interesting scene in The Intern illustrated that remorse when the company CEO sends an email she wishes she had not. Her intern and other employees then break into her mother’s house to attempt to intercept that message before it is read. Once an email is sent, there is no retrieving it. But periodically we all get one of those "the sender wishes to recall" messages.

Returning to Spradley. In the first responsive email, the attorney labelled the subject motion a “sham.” She accused the opposing counsel of wasting her time and the adjudicator’s. She cautioned counsel that he would “not enjoy being in the same courtroom with me.” In a second email, she reiterated the “waisting [sic) my client’s money,” as well as the attorney’s time. Maybe our best guide is to never write an email you would not want your grandmother to read aloud in public?

The attorney went on to say that “your client will wish that she were able to afford to hire my [sic] rather than you.” Perhaps typos result from speed, but as likely perhaps from those tiny keyboards on mobile devices? She then devolves into a discussion of her father, noting he was a “famous world renown international environmental attorney.” She infers that she was therefore born with passion for the law, and that it runs through her veins. Some of this reminded me of Charlie Sheen and his now famous meltdown in 2012.

In another situation, the same attorney had withdrawn from a case and filed a charging lien. The judge entered an order denying that lien. That led this attorney to email the judge’s judicial assistant to express her displeasure. She referred to the judge’s treatment of her as “absurd and meritless.” She informed the assistant that the attorney would be reporting the judge and sharing the order with others.

The attorney typed this email to staff largely in capital letters (screaming). She lamented that the judge had not “practiced family law,” and had “admitted that she literally knew nothing of charging liens.” The attorney asserted that she would have prevailed if the judge “was at least somewhat competent.” The attorney alleged that the judge did not control a particular hearing, that she labelled a “sham,” in which she alleged she was “abused” by other litigants. She then threatened to air advertisements “about how” the judge “should have never been allowed to hold such an honorable position.” Judges will be wrong. When they are, move for reconsideration or seek appellate review. Insulting, threatening, or demeaning will not lead to positive results.

There were two additional complaints against the attorney, essentially related to diligence in moving client’s cases forward.

The Spradley referee found the attorney’s behavior inappropriate and violative of multiple Rules Regulating The Florida Bar. These included “competency,” “diligence,” “communication,” comments that were either “known to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge,” and “conduct . . . prejudicial to the administration of justice.”

The referee noted both aggravating and mitigating factors regarding various rules. Mitigating factors included the attorney’s “cooperative attitude toward the instant disciplinary proceedings,” and her remorsefulness. The referee cited The Florida Bar v. Norkin, 132 So. 3d 77 (Fla. 2013), in which an attorney was suspended two years for “rude and antagonistic behavior including disrupting court proceedings.” That case has become an oft-referenced touchstone in attorney discipline cases, as well as continuing education programs. The referee recommended an 18 month suspension in the Spradley case.

The referee also recommended that the attorney undergo an evaluation by Florida Lawyers Assistance, Inc. (FLA Inc.), and “abide by all recommendations made by FLA, Inc.” The referee recommended restitution in the diligence matters, and payment of the costs of the Bar’s investigation and procedure. Many think of FLA infrequently. It is there to help lawyers with issues of stress, and perhaps more should consider how FLA might benefit them.

This Spradley situation illustrates several points worthy of discussion. First, the practice of law can be stressful. Anyone who practices law and can say otherwise is indeed fortunate. There are a multitude of rules, processes, deadlines, and emotions that are intertwined in the process. Lawyers take on clients, but in the process they often take on the client's troubles, feelings, and frustrations. All of this can lead to lost sleep, anxiety, anger, and more. We have all seen the effects of the practice of law profoundly affect an attorney. We must all remain vigilant about how our own stress is affecting us.

Second, unfortunately, those who practice law are not merely victims of stress. Some are also “carriers,” and still others are the instigators of stress, anger, and frustration. It perhaps does not help that in a fair number of instances a lawyer’s financial well being, and that of the attorney’s family, are dependent upon successfully navigating a process and system that is replete with roadblocks, frustrations, complications, and opponents (some brilliant, others incompetent). People bring frustration and anger into the legal system, others spread it. It can become viral and spread unchecked. Everyone needs to be aware of symptoms and willing to confront them, or at least focus upon not spreading them.

Why is it worthy of discussion when an attorney lets loose an angry tirade at opposing counsel, a judge, or anyone else? Because, whether we admit it or not, we are all subject to human emotions, including disappointment, frustration, and anger. Can we manage it? For the most part the answer to that is yes. Can we spot our rising ire and find a way to check it. For the most part the answer is yes. But in today’s age of instant communication, we may react before we have that chance.

There are solutions. However, as the tools to react and respond are so handy, all of the solutions begin with self control. It may be that such control is elusive. So, perhaps the best tool that we have is time. Before we reach for the keyboard, or the telephone for that matter, perhaps the best salve is time. A mentor of mine once cautioned to never respond to any communication the same day. She advocated that the best advice was to always "sleep on it." That is perhaps easier said than done.

Perhaps there is catharsis in typing that response, venting the anger? Then, when you have done so, hit "save" or even "delete" instead of "send." Or, perhaps the best response to such an angry reaction would be to discuss it with a confidant, mentor, or friend. There may be relief in merely expressing the feelings and emotions that resulted from receiving someone's communication or motion. It is probable that sharing those feelings, before responding, would help one to work through the emotion.

Finally, there is the simple fact that email, texting, and even typing a letter are all less personal and detached. This was discussed by Live Science in 2012. That focus is on Internet comments (which we have all seen unfortunate examples of), but a core point is applicable here: "people tend to antagonize distant abstractions more easily than living, breathing interlocutors."

That is, simply, it is easier to be angry and perhaps outrageous when the connection is impersonal and provides detachment. Why not schedule a time to speak to opposing counsel, in person or by phone? This would provide benefits including some delay ("schedule: a time, not a spontaneous call perhaps). It would also personalize the communication (there are benefits to facial expression, to inflection, which email does not deliver). And, many believe that such interpersonal conversation is a powerful tool for understanding.

The bottom line is that stress and emotions are with us. Much like the world changing around us, there is much in the practice of law that we cannot control. We will suffer disappointment and we will be hurt. We cannot prevent or control these truths. We can only hope to affect how we react to those situations. And, to be successful at it, we need to make decisions in advance, establish practices in advance, to facilitate our calm and professional reactions when we are confronted.

In all, we will be as imperfect as everyone around us. Though we will not achieve perfection, we must nevertheless strive to avoid the lure of the instant reaction, the angry email.

Tuesday, May 28, 2019

It has to be on the Menu

The OJCC Clerks recently got an order that told the clerk to change the carrier on a particular case from “AIG Claims” to “Commerce & Industry Insurance Co./AIG Claims.” The problem is, we do not have that carrier registered. We have each of those two carriers registered. 

The list of potential carriers is locked. The only way a new carrier is added to that list is by the carrier’s action in registering. They are thus taking an affirmative step to do business in this state. They are agreeing thereby to accept service by electronic mail (a benefit to all involved, the worker saves postage, the carrier does not scan documents, etc.). We do not create carriers based on what others (attorneys) tell us. 

There is a list of carriers in e-JCC (there is no distinction between a true “carrier” and a “servicing agent” or “third party administrator). To find the list, click on the “Registered Carriers” link in e-JCC.

There, for example, you will find that there is a “Commerce & Industry”:


But, there is no “Commerce & Industry Insurance Co./AIG Claims”

Thus, there is no way to effectuate the order discussed above. An order like this is similar to going to Baskin Robbins and ordering Pumpernickel ice cream. You can tell them all day long that is what you want (someone told you it is good), but they will not serve it to you. You can only get what they have. It does not matter if you get angry at the scoop operator, or if you tell them you are an attorney or a judge, or if you tell them you have it on good authority from a friend or colleague that there is Pumpernickel. There will still not be Pumpernickel on the menu. 

When someone wants to list a carrier in an OJCC case, they pick from a menu. If they want to change to a different carrier or servicing agent, they pick from the same menu. When they specify something that is not on the menu, the cooks in the kitchen (clerks) cannot help them. It is not on the menu.

Remember, though, there is no limit to how many carriers you can have on a case. 

The carrier on this case was already listed as AIG Claims, Inc. The OJCC did not make that up. One of the parties started this case by filing either a petition or a request for assignment of case number. That party selected "AIG Claims, Inc."

Thereafter, some party concluded that this selection was insufficient. The moving party could have something different: “Commerce & Industry Insurance Co.” (it’s on the menu). That would change the carrier from one to the other. 

But, the moving party could have something more by adding any of the AIG companies listed under that “AIG” name:


Or adding Commerce & Industry (which is what it may sound like they wanted with their motion and the resulting order). Or, the party could keep what they have “AIG Claims.” To accomplish what they appear to have wanted, the party could have moved to "add Commerce & Industry as a carrier in this case." The result would have been the combination sought "AIG Claims/Commerce & Industry" as the carriers on the case. 

But, they cannot have what is not on the menu. Even if that is what has been ordered. The solution in situations like this is to consult the list in e-JCC first. Pick from the list and file a motion that is specific as to what the party wants. Then the order can be granted if the assigned judge agrees, and that order can tell the clerk what you want them to do:
“the clerk’s office shall add Commerce & Industry Insurance Co. as a carrier on this case.” 
This would result in two carriers and they would be AIG Claims and Commerce & Industry Ins. That effect is seemingly identical, or at least very similar, to the party’s attempt to create a new "hybrid" carrier (AIG Claims/Commerce & Industry Ins.).

Or 
“the clerk’s office shall remove AIG Claims, Inc. and add Commerce & Industry Insurance Co. as a carrier on this case” 
But it cannot be “the clerk’s office shall add ‘Pumpernickel’ as a carrier on this case” (I checked the list, and we have no carrier called “Pumpernickel”).

The Clerk’s office will strive to make what a party orders from the menu, but it has to be from the menu (even if that means listing two or three or four carriers). Too often, it is apparent that attorneys are not taking a minute to check the carrier list in e-JCC before drafting a motion and filing it. If that motion seeks something that does not exist, then it is unlikely to move the party's cause forward. More likely, it will result in delay, frustration, and cost. All of which could be avoided by spending a moment first, and consulting the carrier list. 

If a party needs a carrier that is not on the list, email askojcc@doah.state.fl.us and the clerks will get to work finding and adding the carrier that is needed. It generally takes a few hours, but may take days if our efforts force us to writing letters. This occurs periodically as companies change names, combine in joint ventures, or begin offering coverage in Florida. It has even happened when a carrier that does no business in Florida nonetheless is implicated because an out-of-state employee happened to travel here, and was injured. 

The goal of this office is two-fold. First, to facilitate what the parties need in order to move their dispute through discovery, mediation, and adjudication. Second, to do so while minimizing costs and complication to the extent practical. Attorneys can facilitate that second goal by checking the carrier list when a change is desired, by being mindful about whether a change or an addition is actually desired, and by drafting accurate and complete motions. The benefits are clear. The process is simple.

Or, a party may simply use trial and error. It can just keep sending orders to the kitchen in hopes that, eventually, it will happen on a correct combination. Consulting the menu first is not mandatory. But, having elected not to consult the menu, a party should accept that any delay, frustration, or cost that results is its own responsibility. 

Sunday, May 26, 2019

Daubert's New Day

As I ponder In re Amendments to the Florida Evidence Code, No. SC19-107 (decided May 23, 2019), I cannot seem to shake Yogi Berra's voice from my head. He is credited with such sayings as "the future ain't what it used to be," "it ain't over till it's over," and "you can observe a lot by just watching."

The admissibility of evidence is a critical matter in the trial of cases. It often involves conclusions about scientific issues and topics that are involved in a lawsuit. It is common for  workers' compensation cases to involve expert evidence regarding the causation and diagnosis of injury, the appropriateness of medical care, the existence and extent of impairment or activity restrictions, and more.

Long ago, the Circuit Court for the District of Columbia issued a decision in which it outlined parameters for the admission of "expert opinion evidence," in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). For seventy years that analysis and logic was applied in federal courts, and was adopted by jurisdictions for use in state courts also. In 1993, the standard in federal courts changed, directed by the Supreme Court of the United States in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). There are those who feel that the Supreme Court of the United States' (SCOTUS)  standard may lead to constitutional issues in some cases. 

"The future ain't what it used to be."

Florida has talked about the Daubert decision for years. I tried several years ago to explain the Daubert standard in Daubert Better Explained. According to the Expert Institute, 24 jurisdictions have adopted Daubert outright, while 14 more either adopted some modified form of it or apply it in some circumstances. Notably, only 5 jurisdictions remain clear adherents to the Frye standard. Just over two years ago, the Supreme Court of Florida (SCFL) rejected adoption of the Daubert standard that was enacted by the Florida Legislature in 2013. This is discussed at length in Daubert, We Hardly Knew Ye, Or do We?

In short, since the time that court rules came into vogue in the 1960s and 1970s, there has been some degree of potential friction regarding the separation of powers in Florida. That constitutional construct essentially holds that the three branches of government have their own responsibilities and authorities; they are constrained by the constitution to both remain within their boundaries, and not to delegate their authorities to each other. In We Hardly Knew Ye, there is discussion of the enactment of Florida's evidence code (a statute), and the SCFL initial adoption of that code as "evidence rules." Since then, most statutory changes have likewise been adopted into the rules. 

In February 2017, the SCFL rendered its opinion In Re: Amendments to the Florida Evidence Code, Case No. SC16-181 (Fla. 2017). Justices LaBarga, Pariente, Lewis, and Quince "decline(d) to adopt, to the extent they are procedural," the statutory changes to sections 90.702 and 90.704, Florida Statutes. This was characterized as "Daubert like language" by the Expert Institute, which also suggested that "while Florida remains a Frye state as of this writing, Florida is a state to watch as changes may be coming."

Justice Lawson did not participate in that 2017 decision. Justice Polston wrote to agree in part, but dissented in part also. Justice Canady joined Justice Polston. Thus, the majority rejected the legislative adoption of the Daubert standard; and the Florida evidence "rules" as regard expert testimony departed from the "code." From this, there was some expression in the legal community that the Frye standard would remain, that Daubert was no more in Florida. That conclusion was likely premature. The SCFL merely decided not to adopt the Daubert standard as a rule. For a decision regarding the applicability of that standard, there would have to be a "case or controversy," that is a chance for the Court to consider the application of that standard in the context and facts of a case.

In January 2019, I penned Dissing Daubert? That followed the Court's decision in October 2018 in Delisle v. Crane Co., No. SC16-2182 (Fla. 2018). The Court there accepted jurisdiction on the basis that two Florida appellate decisions were directly contradictory to each other. See Express and Direct Conflict, a discussion of Glass v. Nationstar Mortgage, No. SC17-1387. In DeLisle, the Court concluded that the the legislative enactments adopting Daubert in Florida "infringe(d) on this Court's rulemaking authority." As such, it was unconstitutional under the doctrine of separation of powers. Justices Canady, Polston, and Lawson dissented in DeLisle

And, after that decision in October, there was even more sentiment in the Florida legal community that Daubert was no more in Florida. I was even sternly lectured by one attorney that my ongoing analysis of, interest in, Daubert was a waste of time. My discussion of it remaining of potential impact to workers' compensation was "misplaced" according to this attorney. This attorney's read on Dissing Daubert was something short of complimentary. 

"I ain't over till it's over." 

In Dissing Daubert, I discussed the Florida Evidence Code, the DeLisle decision, and the distinction between the Office of Judges of Compensation Claims (OJCC) and the state's courts. The Florida OJCC is part of the executive branch, not the judicial branch (that point is periodically or even methodically lost on a great many people). Thus, the "infringement" of legislative action was perceptively, potentially, different. See, every power of this Executive Branch Office, and the judges that serve in it are delegated by the Legislature. Since publishing that post, I have had several robust and intriguing conversations about the question of whether Daubert is indeed the standard for expert evidence in Florida workers' compensation. 

Then, on May 23, 2019 the SCFL published In re Amendments to the Florida Evidence Code, No. 19-107. That opinion admittedly came as a surprise. This "adopts" the 2013 amendments to "sections 90.702 (Testimony by experts) and 90.704 (Basis of opinion testimony by experts)." The opinion recites the procedural process that led to the 2017 rejection decision, the conclusion that the statutory amendments were "procedural" and thus within the authority of the Court rather than the legislature, and the decision of the Court in DeLisle. The Majority then receded "from the Court’s prior decision not to adopt the Legislature’s Daubert amendments."

In doing so, the Court quoted significantly from the dissenting opinion of Justice Polston in 2017. The Court noted the dissent's conclusions regarding arguments about the "grave constitutional concerns" expressed in comments submitted during that rules process regarding Daubert. It is easy for some to forget that  the Daubert standard comes from the Supreme Court of the United States, the ultimate arbiter of constitutionality. The SCFL in its May 23, 2019 decision specified that it was not "decid(ing), in this rules case, the constitutional or other substantive concerns that have been raised about the amendments." The Court reiterated that such concerns should not be the subject of conjecture or hypothetical discussions, but should instead be decided in "a proper case or controversy." That "case or controversy" path to analysis is a bedrock principle of American judicial review. 

And thus, Daubert is the law in Florida. As regards the admission of expert evidence, expressing opinions about a variety of potential topics, the Daubert analysis has been adopted by the Legislature as "code" and now by the Court as "rule" to "the extent it is procedural." Two of the Justices, however, dissented from the decision. Justice Labarga dissented, citing some of the "constitutional concerns" that had been raised originally when the Court considered the matter in 2017. This dissent raises and discusses issues of the potential effects of Daubert.

Justice Luck also dissented, expressing however that the Court's decision in DeLisle "is wrong." This dissent says that the Court should "overrule it when we have a proper case and controversy." However, Justice Luck concluded that adopting these legislative changes in this way, at this time, was not consistent with the Rules of Judicial Administration, specifically Rule 2.140. As the majority relied in part on the process and public comments leading to the 2017 decision, Justice Luck concludes that the Court should adhere to that same process in 2019 rather than adopting the Legislative amendments at this time, without further public comment and other procedural processes. 

Any doubt that Daubert is the applicable Florida standard is perhaps removed, or at least cast in some doubt. But, remembering Yogi Berra, perhaps the debate is not as yet truly over. There is the potential, recognized in various statements in both the majority and dissent, that the application of that standard could potentially nonetheless effect an untoward result. Thus, in some "proper case and controversy" the Court might revisit the effect, or application, of Daubert yet again.

As discussed in A Procedural Progeny Potential of Castellanos, most constitutional challenges are either "as applied" or "facial." Ultimately, however, the SCFL eschewed both of these and instead implied a presumption analysis in deciding Castellanos v. Next Door Co.,  192 So. 3d 431 (Fla. 2016). Thus, the effect of Daubert might yet be challenged in regards to the manner in which its application in a given case or controversy impacted the outcome of the case. The "application" of the SCOTUS' standard might be viewed as unconstitutional in some proceeding. 

"You can observe a lot by just watching."

The legal community is full of amazingly bright, articulate, and deep individuals. In this regard, I hearken back to the several very insightful conversations I have had since publishing Dissing Daubert earlier this year. It is likely fair to remember that in any discussion, on any topic, we can learn from each other. Certainly, we can observe by watching, as this Yogi Berra quote reminds. But, I would stress we can as certainly learn a lot by just listening to each other. I think we may spend too much of our time speaking and conversely too little listening, really listening, to others. 

There is no way to know whether or when there will be appellate challenges based upon the application of Daubert. We do know that the Florida First District has previously affirmed the application of Daubert in a workers' compensation case. See Baricko v. Barnett Transportation, 220 So. 3d 1219 (Fla. 1st DCA 2017). The explanation comes in that instance in a concurring opinion, which is not necessarily controlling law. However, that concurring opinions cites several court holdings that reinforce the applicability of "the Florida Evidence Code . . . in workers' compensation proceedings."

Therefore, at least for now, it is likely that workers' compensation practitioners will be thinking and talking about Daubert for some time to come. This change may be intellectually challenging. There may be different questions to pose regarding expert analysis and opinions. However, the bright and articulate attorneys that practice workers' compensation will undoubtedly adapt to the application of this standard just as practitioners already have in the majority of U.S. jurisdictions. 



Thursday, May 23, 2019

Rules and Practices

In April 2019, the Florida Supreme Court issues its decision in In Re Dennis Daniel Bailey, SC18-2060. It it instructive and worth of discussion, though it is not about a workers' compensation trial, but a jury trial. 

The matter arose from a "side bar" conversation during a jury trial a year earlier. The "side bar" is a conversation between the presiding judge and the attorneys in the case, in which they gather at the bench and speak about something that the jury cannot hear. This is how small issues are resolved without the jury having to leave the courtroom. In the past it was held in hushed tones so that the jury members would not hear. More recently, courtrooms are equipped with "noise" machines that strive to mask those voices. Of course, the judge could always have the jury retire from the courtroom for arguments, but that is a time consuming process. During the course of trial these "side bar" arguments are reasonably common. 

In this instance, one party had two attorneys present. During the argument, "one of the attorneys tried to help his colleague articulate a point." The judge instructed that lawyer to stop, saying “one lawyer at a time,” “only one lawyer argues,” and “you have a hard time understanding me? Two lawyers can’t argue one argument.” From this recitation, it would appear possible that the second attorney attempted to interject more than once. When the attorney spoke again to apologize, the judge "ordered his courtroom deputy to . . . return this attorney to his table." The Court noted that "all of this was in full view and hearing of the jury.” 

That parties second attorney then asked for time to file a disqualification motion, which the judge allowed. When that was filed shortly thereafter, the judge "denied it as legally insufficient." The judge saw no reason to remove himself as he felt "he could be fair to the parties." He admitted he did not view the situation from the perspective of the defendant. 

When the ensuing complaint was investigated, the judge admitted "his conduct was not patient, dignified and courteous." He admitted that his behavior did not "promote confidence in the integrity and impartiality of the judiciary." He admitted that his actions did not "preserve the integrity and independence of the judiciary." The Court accepted those admissions and added that he should have granted the motion to disqualify. 

The Court quoted extensively from the report of the Judicial Qualifications Commission. First it noted its agreement that it is appropriate to "to place restrictions on the presentation of cases or arguments; such as a one-person-per-argument policy." The Commission noted, however, that any such rule "should not be enforced arbitrarily, and never under the threat of physical force." The physical force element, "in full view of the jury," was "egregious enough that it harmed the integrity of the judiciary." 

The Commission and the Court reminded that judges have a variety of tools available during proceedings. There is a tacit recognition that a judge must preserve order during proceedings. However, the Court specifically noted that the judge did not resort to any of the available tools before proceeding as he did. As an aside, contempt proceedings were mentioned by the report and the opinion. That is the one tool which workers' compensation judges do not have, but one which she or he might access as discussed below. The Court accepted the Commission recommendation in this case and will deliver a reprimand publicly at the Supreme Court. 

This reminds of several issues in the trial setting. First, there is a natural exuberance or eagerness to make one's point. Humans, for the most part, are willing and ready to explain what they think and why. Certainly, some are more reserved and shy; but, most are eager to say their piece. That is likely exacerbated by the fact that it takes time to get to trial. At least in part, the people at trial are there because they have not been able to reach their own resolution of the issues. There is disagreement and perhaps even frustration at the delay. And, they are all ready to be heard. 

In Florida workers' compensation proceedings, and in many other trial settings, microphones have become ubiquitous. They are recording everything. Lawyers recognize that there is purpose to that. The microphones are there to record the proceedings and thus make "a record" of what was or was not said. I find myself repeatedly reminding people in hearings (1) not to put things on top of microphones, (2) not to flip papers or books next to microphones, (3) not to mistakenly think they can have a brief private conversation with their client (microphones are very sensitive), and most of all (4) I can only listen to one person at a time and microphones may not produce clear recordings if everyone speaks at once. That last one is a good reason in any trial to observe the "one-at-a-time" rule, which is certainly different from the "one-person-per-argument policy." 

That said, there is no rule about who can or should speak when. That is the role of the judge. The judge should provide appropriate verbal cues for the attorneys in trial: "Ms. _____ call your first witness?" or "Mr. ______ are you ready to provide your opening statement?" When the judge is not anticipating your need or request, the way to interject depends on what is occurring at the time. To this point, there are rules and law in trial but there is also some nuance, some "art."

If someone else is speaking (lawyer or witness) when that need arises, then it is best to "object." Having said that word, or a concise combination beginning with that word, one should strive to make eye contact with the judge and await an invitation to proceed further. If it does not arrive, and one wishes to expound further, a "may I speak to that judge?" is a recommended follow-up. If this arises when someone is not already speaking, begin with the "judge, may I . . ." The scene is often important. One might gain great perspective from the appearance and posture of opponents or the judge. As an aside, that is one of the great disadvantages to telephonic appearance at hearings, depositions, and otherwise. The visual element is eliminated.

Should more than one lawyer speak to a particular issue? Should a judge enforce that objections may only be voiced by the attorney on each side that will question a particular witness? Should a judge interject to instruct attorneys in the course of trial? Those remain within the discretion of the trial judge. Though in a jury setting, it would be appropriate to do any instructing, reminding, or reinforcing privately either at side bar or with the jury retired to the jury room.

The Court was not critical of having process and procedure in the courtroom. The point may be that the trial judge should be clear about such process at the outset. If there is departure from any instruction, or if a judge elects to limit attorney participation even in the midst of trial, that should be communicated evenly, and calmly. It clearly should not ever involve "the threat of physical force" or any threat. Threats simply have no place in the trial process. A judge may have to remind participants of process, or rulings, and of enforcement, but should no more make threats than any of the other trial participants should. 

There are times when attorney exuberance and excitement may evolve to anger and even aggressiveness with a witness. That too is for the trial judge to control and ameliorate. I have witnessed some fine judges interrupt an attorney with a simple question, such as "excuse me Mr. _______, but how much longer will we require for this witness?" That innocuous pause in questioning may itself be sufficient to remind an attorney of appropriate demeanor. 

However, I have found that the very best answer to exuberance of witnesses or attorneys in that context is usually a short break. It is helpful for people to leave their seats, stretch, and get some water. In that brief pause, it is possible to also get back some perspective. A judge should strive to make that, a break, a "go-to" when she or he feels tempers rising, tension building, or frustration reaching a marked point. More than once, I have had an attorney return from such a break and pointedly express thanks, with a recognition to the effect of "it was becoming tense before that break." 

It is important that everyone remembers that trial is a stressful time. That this is true for witnesses and attorneys is perhaps obvious. But, it is true also for judges. Judges want to have effective proceedings. They want the recording equipment to be effective (and thus have to remind lawyers not to put files on the microphones, and to speak one at a time, etc.). They are responsible for a myriad of legal rulings, keeping the case on schedule, and enforcing order. In the OJCC, they are also monitoring the equipment that is recording the hearing, or operating the video-teleconference equipment. 

Attorneys should appreciate that judges, witnesses, and parties are under stress. Likewise, everyone should appreciate that lawyers are similarly under stress. Ultimately, it is the judge's role to remain calm, professional, and measured. If the judge remains calm and collected, that will encourage the same from others. 

Ultimately, the best rule of trial from any perspective, is fairly simple. If everyone involved treated everyone else with the dignity, decorum, and respect with which we would want to be treated, then troubles and tribulations would be minimal. Judges, lawyers, and others should simply strive to treat others as we wish to be treated. It sounds simple. Perhaps it even sounds trite. But, it is sound advice. The judge disciplined in this case would not have wanted security to "return (him) to his table." And thus, the judge should not have exercised that option as regards someone else.

Finally, it bears noting that this judge erred in denying the motion for disqualification. The point is not whether the judge believes the asserted grounds for disqualification or believes he or she can nonetheless be fair. The point is whether the motion, on its face, is timely and legally sufficient. The truth of what is alleged in such a motion is not for the trial judge to determine. The trial judge accepts the allegations and determines if they are legally sufficient, and promptly addresses the motion. There is some exception to that if a previous disqualification has occurred in the case, that is if the trial judge is a "successor judge." See Fla.R.Jud.Admin., Rule 2.330(f) and (g).

Thus, Bailey is instructive and provides reminders for judges and lawyers alike. Ultimately, treat others as you would like to be treated and the process of litigation and trial should remain reasonably smooth and productive for the resolution of your disputes.









Tuesday, May 21, 2019

The Striking of an EMA

In April 2019, the Florida First District Court of Appeal decided Falk v. Harris Corp., -- So. 3d --, 1D18-2176 (Fla 1st DCA 2019). The case is relevant as it perhaps answers a question that many have asked. 

Several years ago, I was presented with a Motion to Disqualify Expert Medical Advisor (EMA). There had been a motion to appoint EMA; the EMA was not appointed of the Judge's own motion. The injured worker had been evaluated and a report issued. The injured worker then moved to disqualify the provider making various allegations about the evaluation process. There was also a complaint filed by the worker against the doctor with licensing authorities as I recall. 

The injured worker thus sought the removal of that physician from the case and the appointment of a different EMA provider. The worker raised allegations and accusations based upon her perceptions of the physician, and asserted that she lacked both faith and trust in that provider. The employer/carrier insisted that this Office lacked jurisdiction or authority to appoint another EMA, and in that process to effectively disregard the opinions of the initially appointed EMA. 

The employer/carrier argued that the statute, section 440.13(9) requires that when a conflict is presented the appointment of an EMA is mandatory. Furthermore, it asserted that the report of an EMA shall be received in evidence. Section 440.25(4)(d). Furthermore, the opinions of the EMA are 
"presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims." section 440.13(9)(c). 
On this path of logic, the employer argued that once appointed the authority of a particular physician remained inviolate. 

The injured worker argued that the EMA was judicially appointed and essentially that physician became "judge like" upon appointment. This argument was based upon the presumptive correctness of the EMA physician opinion. The worker argued that the EMA effectively became the judge regarding medical issues. Therefore, the worker argued, the EMA could be disqualified pursuant to Rule of Judicial Administration just as a judge might be. See Rule 60Q-6.126. I rejected that argument, concluding that while the EMA opinion is presumptively correct, that does not render the physician judicial or even quasi-judicial. 

However, I concluded that the authority of a particular EMA in a particular case is the result of this Office making an appointment pursuant to the statute. In concluding that this Office necessarily remains engaged in the EMA process, I noted that after an appointment of an EMA there could be a variety of instances which might necessitate the appointment of an alternative EMA provider. 

As examples, I cited that following such an appointment, the EMA is required to complete a certification of "no conflict." That essentially requires that the physician assure all parties that she or he is not disqualified from participating in that particular case. If the medical issue involves some drug, device, or modality, it is possible that the physician could have prior involvements advocating or experimenting with such that could lead the physician to conclude she or he has a conflict of interest. 

Alternatively, it is possible that the physician might discover that she or he had been previously consulted in the case, unbeknownst to the parties. A treating physician might have called upon the EMA physician for advice. The insurance company or its attorney might have consulted with the EMA physician for advice. The physician is obligated to consider the implications of an appointment, and certify the absence of conflict of interest. If the doctor does not, then it is only logical that physician is not the EMA, despite the order appointing her or him. 

Similarly, it is possible that prior to trial the appointed EMA might fall ill or even pass. A foundational part of our litigation system is the Constitution's recognition of the right to due process. That right includes the ability in many instances to confront witnesses, the process of cross-examination. It is often through just that process that a party may seek to establish the very "clear and convincing" evidence that might convince the trial judge to disregard the EMA conclusions despite the statutory presumption of their correctness. 

If an EMA were to become incapacitated during the EMA process, prior to the parties' opportunity to take the provider's deposition and thus confront the conclusions, then it might be appropriate to appoint some other EMA provider. However, the right to cross-examination is not absolute and such a development might not necessarily require disqualification. That is an intriguing point. See IMR and Due Process

To conclude an EMA could not be dismissed, I found, might be to accept an absurd result: the appointment of the EMA is mandatory, but the incapacity of the EMA devolves the conflict back to the trial judge for medical determinations as there is no stated statutory authority for appointing a second (substitute) EMA. Or, if the incapacity is not permanent, the disability of the EMA provider and resulting unavailability for deposition, report preparation, or even examination might result in delay of deciding the case. If that delay were too extensive, it too might implicate due process and other statutory demands. 

Thus, we return to the recent appellate decision. In Falk, the Court concluded that the expert medical advisor did not render an opinion regarding the medical questions asked. The Court noted that the worker had been evaluated by three neurologists. The judge appointed an EMA neurosurgeon in the case. The EMA, according to the Court "offered no independent opinion regarding the head injuries." Furthermore, the neurosurgeon EMA did not conclude "that Dr. Tatum’s (one of the neurologists) opinion was correct." Instead, the EMA "simply deferred to Dr. Tatum." Thus, the EMA did not fulfill the role of EMA. The Court concluded "a blanket deference is not an EMA opinion." 

The Court did not instruct the trial judge on remand, to provide the EMA physician with instruction or to request clarification of the EMA's opinions. The Court instead concluded that "the JCC should have stricken him as the EMA and appointed another." The statutory authority to strike an EMA is not clear. As discussed above, there have been instances in which litigation over such an action have ensued. But, the authority to strike an EMA is now clear, from Falk, that not only does a JCC have the authority to appoint a new EMA the judge is obligated to do so. 

The facts of Falk might be worthy of consideration. Did the EMA render opinions and deference only in the EMA report, or was there testimony? This might be pertinent in the decision of whether to seek to strike an EMA. If an EMA report is not sufficiently conclusive or is a "blanket deference," is a motion to strike immediately appropriate? Or, would the parties be obligated to explore those opinions through the testimony process in a search for clarification or explanation before moving to strike? 

There may also be those who will see the absolute of Falk, "blanket deference" and question whether the EMA physician is similarly subject to being stricken if there is deference of any degree whatever. They may ask what extent of deference is appropriate, if any. May an EMA defer in any event, to any degree? To one of the doctors involved in the conflicting opinions, or to a neurologist that interpreted an MRI, or to a pathologist that examined a biopsy? If the EMA may defer to some extent, but not adopt a "blanket deference," then there may be factual disputes as to whether any particular EMA's deference was or was not too extensive. That might need the interaction of a deposition to define and describe. 

Ultimately, however, Falk answers one question clearly. The EMA appointment of the OJCC is not an absolute. The provider is empowered by the authority of this Office and remains subject to it. Thus, the trial judge is empowered in the right circumstances to strike an EMA after appointment and even after rendition of opinions. While the statute is less than clear on this, the outcome is logical and consistent with the purpose of the EMA statute, and the due process concerns inherent generally to litigation.


Sunday, May 19, 2019

Lawyer Threatening Criminal Charges

In March 2019, the Florida Supreme Court rendered The Florida Bar v. Vujin, No. SC17-1949. There, the Court accepted the findings of the referee, but declined to adopt the recommended sanction. Instead, the Court permanently disbarred the attorney. The case is worthy of consideration on two points. 

As a matter of foundation, when there is a complaint regarding a member of The Florida Bar, a decision may be made to conduct a proceeding. In those instances, a “referee,” a constitutional judge, is appointed to conduct proceedings, determine the facts of the allegation(s) and defense(s), to draw conclusions regarding the application of Bar rules, and to make recommendations regarding disposition. 

The complaint resulted from a civil lawsuit in which the attorneys apparently had discussions regarding settlement or compromise. Mr. Vujin sent correspondence by mail and email demanding “$9000.00 Plus Attomey's Fees within seven days, $13,000.00 Total,” from Mr. Touil. And, such demands are mailed all day every day in a variety of disputes (some of which are actively litigated and others that are not). 

This compromise demand included more, however. It “presented threats of criminal charges in order to obtain an advantage” in compromising the “civil dispute.” Essentially, the “letter discussed several alleged criminal statutes,” and stated that Mr. Touil (the defendant) would "most likely face deportation for your obvious commission of several aggravated felonies." 

The letter made clear that unless the case was resolved, compromised for the $13,000, that “my clients will have no other choice but to report you to the authorities and take you to Court.” The letter closed with a “final threat”: "Your failure to comply with the law in this matter will have disastrous, irreparable consequences in one week." So, a threat and a deadline. 

The attorney’s defense against the Bar complaint was essentially that only if the “sole intent is to gain an advantage in a civil proceeding,” (emphasis added) is such a communication forbidden. Also, because the lawyer believed that his “clients never contemplated a civil resolution here," then the Bar rule was not applicable and his statements not actionable. He seems to believe that the rule become effective only after a civil proceeding is filed, or subjectively is contemplated. The referee was unpersuaded. 

The referee concluded that the attorney had violated Rule 4-3.4(g)(“A lawyer must not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.”) After review of various authorities, and the presence of a “prior disciplinary history” of this attorney, the referee concluded that the attorney “is either not willing or not capable of conducting himself in a professional manner.” That, the referee said posed “a threat to the public and/or the legal system.” 

An interesting aside is the referee's description of multiple “aggravating factors” including past behavior, pattern of conduct, and motive. Of particular note was the lawyer “failing to acknowledge the wrongfulness of the conduct.” And, in seeking to delay the proceedings, the attorney "in his untimely motion, . . . continues the same pattern of scandalous, outrageous, and unfounded attacks on his prior counsel, opposing parties, and opposing counsel,” that had been noted by the referee in a previous disciplinary case involving the attorney. 

Upon receipt of the report, the Supreme Court of Florida (SCOF) issued an order to show cause (an opportunity for the attorney to address the referee's conclusions). The attorney elected not to respond to that order. Then on March 22, 2019, the Court “approve(d) the referee’s findings of fact and recommendations as to guilt.” Instead of suspending the attorney immediately, pending consideration of the recommendation of disbarment, the unanimous Court disbarred the attorney permanently and ordered the attorney to reimburse The Florida Bar for the cost of the proceedings. 

The case reminded me of a presentation I observed some years ago at an Inns of Court meeting. There was discussion of making threats of criminal prosecution in order to encourage settlement of a case. I was surprised then that several seasoned attorneys expressed surprise that the Rules Regulating The Florida Bar preclude such threats. There was discussion among attendees about innuendo and discussion to suggest such potentials without making threats. I was disappointed in the seeming acquiescence of those attorneys regarding this patently inappropriate behavior. 

I was also reminded of the news coverage that has recently brought to light allegations of immigration law becoming implicated in workers’ compensation matters. That is discussed in Criticism of Enforcing the Law, The Forgotten 2014 Supreme Court Workers' Compensation Case, and Kansas Cannot Prosecute Identity Theft.

Why is Vujin worthy of consideration? First because every lawyer should know that it is inappropriate to threaten criminal action for the purpose of obtaining advantage in a civil matter. This is true whether the civil matter has been filed, is imminent, or even if it is merely seen by the Court as a probable outcome if discussions fail. The standard is not "solely," and there is no "bright line" that allows such behavior to some point, and then forbids it once a lawsuit is filed. It would appear that workers' compensation cases are a "civil matter," though some appellate decisions have case doubt upon that, particularly in the application of the Supreme Court's Uniform Guidelines for Taxation of Costs. 

The second point is perhaps more elementary. In Vujin, the SCOF was provided a report that recommended serious sanctions. The Court provided Mr. Vujin an opportunity to refute and dispute, the Order to Show Cause. Instead of making a case for leniency, instead of expressing acknowledgement and regret, he elected not to respond. He elected not to "show cause." Certainly, it is possible that a response would not have been efficacious. But, when an adjudicatory body, be it judge or court, affords someone the opportunity to speak, to explain, to seek accommodation, it is highly recommended that the person respond. 

Lawyers can benefit from reading Vujin. However, it is probable that the benefits of understanding the preclusion of lawyers engaging in such threats would be of some benefit to a few litigants that are not lawyers. Those clients might be benefited by knowing of the constraints of professionalism and prohibitions under which attorneys must practice. Those clients might benefit from understanding that, despite their own desires, there are things lawyers cannot, and should not, do. 







Thursday, May 16, 2019

Inadvertently Creating Delay and Making Work

Technology is a boon. Too many reading this will have lived their entire life in a world in which word processing is ubiquitous. A fair few may well struggle to remember a time when we did not complacently carry around super-computers in our pockets and remained connected to the world wide web incessantly. But, a handful may remember the old typewriter, the Dictaphone, and even the fax machine. Perhaps those were the "good old days?" These machines and technologies make our communication efforts easier, quicker, and we leverage this to our advantage. 

With technology comes great power, the advantage. But with that power comes responsibility. With the benefits of technology comes our tendency to rely upon technology. There is an advertisement tag line that seems old hat: "what happens in Vegas stays in Vegas." That was coined in 2003, and has since become part of our culture. The tag line has inspired imitators, one noting that what happens on social media stays on Google forever." The point being that technology may inspire and enable us, but it may also memorialize what we do, keep records perpetually, even of our mistakes.

Yes, we also make errors, that is human nature. And just as these technologies allow us to communicate more rapidly and inexpensively, there is a downside when we make mistakes. Mitch Ratcliffe famously said:
“A computer lets you make more mistakes faster than any other human invention in history...with the possible exception of handguns and tequila.” 
That same speed and efficiency that benefits us can likewise burden us when we make errors. Our efforts are magnified and broadcast so effortlessly and efficiently, but so are our mistakes. 

This came back to me recently when reviewing a series of pleadings and orders in a case. An attorney filed a petition on behalf of an injured worker. It named the employer as "ABC Corp." (note, the names have been altered), and the carrier as XYZ Insurance. Within a few days, XYZ filed a response to petition explaining that XYZ was not responsible, and indicating that PDQ is instead. The response asked "please remove XYZ and amend filings to reflect PDQ only." The attorney did not file any response. 

A week after that response was filed, the claimant's attorney filed a second petition. This one also named ABC and XYZ. Whether the response had gone unread, or whether there is a reason for continuing to pursue XYZ is not known. Certainly, there may be good reason for a party to disagree with the position taken by some other party. 

About three weeks after that initial petition, just days after the second petition, the Employer/Carrier (ABC/XYZ) filed a "motion to correct employer/carrier." This explained that an employee leasing company "leases employees to ABC" and thus this leasing company, QWE, is the appropriate employer. Furthermore, the motion says, JKL is the carrier for QWE. There may be redemption seen there. The first response said "not ABC/XYZ, but PDQ"; the motion said essentially "not ABC/XYZ but QWE/JKL." 

The motion reflects that the two attorneys had discussed this situation (which is appropriate, see Rule 60Q6.115(2)("the movant has personally conferred or has used good-faith efforts to confer with all other parties"). The motion states that the two attorneys agree to this change, "claimant does not object to this motion." An order was entered the next day. 

The order is lamentable. Instead of drafting a simple order on the issue, the assigned judge attempted to add information to what is apparently was a proposed order submitted by the Employer/Carrier. Of course, the rules forbid filing such proposed rules. Rule 60Q-6.103 ("proposed orders shall not be submitted unless requested by the judge."). However, many lawyers refuse to follow the rule. That order was served on the parties, as reflected in the OJCC database. And, to reiterate that it was served, the judge's staff signed a superfluous certificate on the document before sending it. 

Thus, the problem was seemingly solved. 

A week later, the claimant's attorney filed a third petition. In this one, the employer was named as "ABC Corp." and the carrier as "XYZ" (remember XYZ? the one that has been trying to alert everyone it has been named in error, an error that apparently everyone in the case agrees). At this point, there is perhaps no longer a suspicion that "there is a reason for continuing to pursue XYZ." The claimant's attorney had just days before agreed that XYZ be removed from the case.

This third petition added ABC and XYZ back to the case in the OJCC database. After the effort of an informative response to the first petition that was apparently overlooked or ignored, after the time and expense of a motion to correct, after the good faith consultation for the motion certification, after the entry of the cobbled together order, the parties were right back where the case started, by the filing of this third petition. 

Thus, two weeks after the judge's order correcting the employer/carrier to QWE/JKL, a second motion is filed to "correct the employer/carrier." This one was also accompanied by a proposed order titled "Order on Motion to Motion to Correct Employer/Carrier." (Sic). That proposed order was typed upon, entered, and essentially ordered the parties to pay attention to the order entered two weeks before and to "correct the employer and carrier." That is frustrating. An order that essentially says "read the last order."

The situation is a great illustration of the perils of technology. It is likely that the claimant's attorney is not intentionally reiterating error. It is more likely that a computer in either some form or database is saving information. We know that the OJCC database, in the e-JCC function saves the name of the employer and carrier as the initial filing (a petition or a request for assignment of case number) presents it. 

When corrections are made in the OJCC database, that will affect the information in orders generated by this office (but not the ones submitted by attorneys in violation of the 60Q rules, see Rule 60Q6.103(4)("proposed orders shall not be submitted unless requested by the judge"). But, when a party selects the e-JCC function to file a "subsequent petition," that form will populate with that data that was submitted with the first petition. For now, "what happens in eJCC stays in eJCC forever." The attorney has to remain aware of changes, has to pay attention to the data the form prompts, and has to make corrections to that data where appropriate. 

Each time this attorney uses e-JCC to file a petition, the form will suggest ABC and XYZ. The computer will prompt the same data every time. It is up to the attorney to (1) know this, (2) pay attention to any changes that occur, and (3) correct the petition she or he is going to file. The attorney is expected to read and verify that what she or he is filing is correct. Certainly, the computer database might as conveniently instead pull data that has been corrected, and ignore the old ABC and XYZ. That is a software remedy that the OJCC is working on (maybe the program can be made more assistive). But, ultimately, no matter what the computer programs do for us or to us, it is our responsibility as attorneys to verify the accuracy and completeness of what we are filing. 

Certainly, we all make mistakes. The point of this post is not to suggest otherwise, or to single out any particular attorney (the names have been changed to protect the innocent). The point of this post is to assist with "(1) know this." If you file petitions, then know this. If you defend petitions, then know this. And, if you find yourself in the process of changing the employer/carrier in a case, remember this and the obligation to review your work to assure that subsequent filings are accurate and complete. 

Technology helps us, but it is fallible as are we all. It empowers us to do so much, and to do it so much faster than we could in the dark ages (back in the 1980s). But it is a tool for us, not a substitute for us. We have to engage ourselves, verify information ourselves, and correct the errors that machines and software makes. The attorney has to check her or his own work to prevent such errors. When we do not, it will cost everyone time and money that could be productively be put to work elsewhere.





Tuesday, May 14, 2019

Express and Direct Conflict

On April 18, 2019 the Supreme Court of Florida (SCOF) released an order in Glass v. Nationstar Mortgage, No. SC17-1387. This order superceded a decision rendered by the Court on January 4, 2019

The SCOF in April granted a motion by the Respondent to recall the mandate, withdrew the opinion of January 4, 2019, and concluded that "jurisdiction was improvidently granted." The case had come to the SCOF based upon the decision of the Fourth District Court of Appeal: Nationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA - 2 - 2017). 

The Petitioner, Glass, had asserted that district court decision was in  direct conflict with the decision of the First District Court of Appeal in Bank of New York v. Williams, 979 So. 2d 347 (Fla. 1st DCA 2008). Upon accepting that premise, the existence of conflict, the Supreme Court undertook review and issued the January decision. The January decision quashed the decision by the Fourth District Court. 

As a side note, the "conflict" jurisdiction of the SCOF exists because any decision of a District Court of Appeal is "controlling" in the geographic area served by that Court. Outside of that geographic area, such a decision is "persuasive," meaning it is given some degree of deference, but is not controlling. Thus, it is possible that two District Courts may disagree about what the law says. The law might be different in two cases because of where in the state those cases occur. So, the SCOF has the authority to hear  and resolve such conflicts and thus bring uniformity across the state. 

The Glass case began when a lender filed suit to "foreclose a mortgage on real property." After multiple amendments to that suit, prompted by Glass' motions to dismiss, the trial court in 2015 dismissed Nationstar's suit with prejudice. Thereupon, Glass sought attorney's fees from Nationstar related to her defense of the lawsuit. Nationstar appealed the dismissal to the Fourth District. 

In 2017, "after briefing" (that is after the parties had written their arguments and legal citations and submitted them to the court), Nationstar dismissed its appeal. Glass then filed a motion seeking appellate attorney fees. Glass asserted that she was the "prevailing party" on the appeal. The Fourth District denied that motion. Glass asked for rehearing en banc (heard by the whole court as opposed to a three-judge panel), which the Court granted. Thereafter, it "issued a nearly identical opinion on rehearing en banc." Therefore, Glass sought review of the Supreme Court. 

The original Supreme Court analysis notes "mischaracterization of the procedural history of this case by the district court." The Supreme Court quoted the District Court opinion, in which there were conclusions regarding arguments raised by Glass in the trial court. There, Glass alleged that Nationstar lacked "standing," in other words the right to bring the suit. The SCOF concluded that the Fourth District had decided that entitlement to attorney fees was dependent upon "reciprocity provision of section 57.105(7)." Since Nationstar lacked standing, it was not entitled to enforce the contract under consideration, and thus the "reciprocity" was not present. 

However, the SCOF noted that "Nationstar did not seek review of the attorney's fees order in the district court." The appeal was about the dismissal of the underlying lawsuit by the trial court. The SCOF concluded that this distinction was critical. It directed attention instead to the dismissal of the appeal, and the "prevailing party" statute. The SCOF also iterated three additional allegations Glass made in support of dismissal by the trial court, in addition to the standing issue. 

The SCOF restated that "when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party." Citing Thornber v. City of Ft. Walton Beach, 568 so. 2d 914 (Fla. 1990), and a prior decision by the Fourth District (omitted). The SCOF noted precedent supporting the award of prevailing party fees under statute and under a contract provision, even if the contract is rescinded or unenforceable. 

Justice Polston dissented from the original SCOF decision, joined by Justices Canady and Lawson. The dissent concludes that there is no express and direct conflict between Glass and Williams. It explains that statute sets two requirements. The Fourth District addressed the "second requirement," whereas the purportedly conflicting analysis in Williams instead "only addressed the first requirement" of that statute. 

The Glass case is pertinent for several reasons. First, the Florida First District Court has concluded that section 57.105 is not applicable to workers' compensation proceedings. See Lane v. Workforce Business Services, Inc., 151 So. 3d 537 (Fla. 1st DCA 2014). In reaching that conclusion, the Court noted that Chapter 440 does not incorporate that statute. Rather, 
"The essentially self-contained workers' compensation law in chapter 440 already provides a host of specific sanctions and remedies which includes attorney's fees for frivolous claims and defenses under section 440.32, Florida Statutes (2011)."
That distinction may be worthy of consideration by parties that have perceptions of the validity of either claims or defenses in Florida workers' compensation proceedings. 

Second, The SCOF ultimate decision states that its jurisdiction is dependent upon "express and direct conflict." That is a significant burden for any party to demonstrate, while seeking Supreme Court review. In another conflict case, a workers' compensation proceeding several years ago, the issue of conflict was similarly raised. In Sanders v. City of Orlando, 997 So. 2d 1089 (Fla. 2008), the underlying case involved both present claims and an effort to set-aside a prior settlement in another claim involving the same worker. The trial judge set-aside the settlement. 

The employer/carrier, Orlando, contended that the 2001 amendments to Chapter 440 "divested the JCC of the authority to vacate or set-aside" a settlement. The Florida First District Court of Appeal agreed and reversed the trial judge. The SCOF accepted jurisdiction concluding that decision was "in express and direct conflicts with multiple decisions of all the district courts," (citing decisions of the Second District and Fourth District). The SCOF reversed the First District. 

In Sanders, Justice Cantero dissented. He explained that the cases cited from the Second and Fourth District did "not interpret the particular subsection of the statute at issue here." He contended that therefore there was no "express and direct" conflict and therefore there was not jurisdiction. Some might argue that analysis in Sanders perhaps foreshadowed the decision in Glass. That is, a very focused and strict interpretation of conflict.

Glass is worthy of consideration as regards workers' compensation. Statutorily all appeals regarding decisions of Florida's Judges of Compensation Claims are vested in the First District Court. Section 440.271, Fla. Stat. Though the SCOF found conflict in Sanders, in two other Districts, it is perhaps less likely that the Court would so conclude today. The Glass analysis of jurisdiction may suggest that SCOF review of workers' compensation cases is less likely on "conflict" grounds.