Monday, September 24, 2012

Mileposts or "call me maybe?"

Life is full of mileposts. I was reminded of that this last week. "The only constant is change." That is not my quote, it has been credited to Isaac Asimov and Heraclitus of Ancient Greece, and others. I have watched the workers compensation adjudication system change over a couple of decades, and have made a living doing it. Early in my career I travelled little and was instead immersed in the microcosm of Jacksonville. As I ventured out to the panhandle, Daytona, Tallahassee, Gainesville, and eventually statewide, I was struck by how different things were in various districts. 

I found a mentor in Daytona Beach though. A judge who had patience with the exubance of a young litigator, who could be decisive without being harsh. A judge that followed the law and the rules, and before whom it was an honor to win or lose. I learned a great deal in those days from Tom Portuallo, and in retrospect I have learned much from him since. More on Judge Portuallo later. 

In July the OJCC lost our Senior Counsel Walter Havers to private practice and the lure of the big city. Walter had been with the OJCC for many years, and frankly seemed irreplaceable. Walter was the unsung hero of our efiling efforts, and a constant force in the management of the OJCC. 

We hired a new Counsel a few weeks back. Her name is Stephanie Hayes. She is an intelligent, enthusiastic, and articulate graduate of Florida State University's fine law school. On Tuesday this last week, like so many others, Stephanie learned that she had passed the Florida Bar Examination. We look forward to the translation of her intellect and enthusiasm into great things for the OJCC and our customers. Her excitement at learning she passed was refreshing, and I reflected Tuesday on how proud I was to join this profession some years ago. Have you reflected on that recently? 

On Thursday, I learned that Judge Lazzara, District Tallahassee, has agreed to teach workers' compensation at Florida State University. Judge Lazzara has been a mentor of mine for longer than I care to admit, and I know better than most his exceptional skill with teaching. I am proud to see him expanding his horizons with this new challenge. Judge Lazzara's excitement about this new frontier is likewise obvious. His enthusiasm at the prospect of challenging and developing legal scholars is inspiring. Have you thought recently about what you can do to expand your horizons? 

I received a call Friday evening as I drove across Interstate 10. Judge Portuallo calling to tell me he received a call from Governor Scott, and that he has been appointed to the Circuit bench. This is a great loss for the OJCC, and for me. I am simultaneously excited for Judge Portuallo, proud of his success, and worried that for the OJCC he is irreplaceable. 

Technically, I guess, no one is irreplaceable, but that does not mean replacing key people is easy for any organization. The Nominating Commission will meet next year, and three fine candidates will be sent to Governor Scott for his consideration. A new, excited, judge will take the bench in Daytona, and will do a great job as they grow into the responsibility as Judge Portuallo and so many others have. Just as our new Counsel Ms. Hayes will translate enthusiasm, excitement and hard work into replacing the irreplaceable Mr. Havers, some appointee will likewise grow into replacing the irreplaceable Judge Portuallo in Daytona. 

We wish the best of luck to Judge Portuallo, Judge Lazzara and Mr. Havers as they each challenge new horizons. We welcome Ms. Hayes to our OJCC team. And I ask you, will you be the one to step up to the challenge of replacing the irreplaceable Judge Portuallo? If I can answer your questions about this opportunity, the Daytona district, or the challenges of seeking and filling this position, "call me maybe?"

Saturday, September 22, 2012

What can I do?

I received an interesting question late one recent Friday afternoon. Essentially, the inquiry was on the subject of a Judge's request for certain information from an injured worker. The worker had filed a motion, and instead of an order, she\he received a phone call requesting more information. 

The injured worker did not think it appropriate that she\he was being asked to provide certain information to the assigned judge. The injured worker at least perceived that there was no basis in law or rule to require the information, as prerequisite to entry of an order. The original question to me from this worker was "what can I do?"

I receive similar inquiries from a variety of attorneys throughout the year. They have run up against something unfamiliar, or in their perspective downright inappropriate, and are unsure how to proceed. I try to preface all of my replies with the same "I can't tell a judge how to rule and I can't give you legal advice." I usually then try to provide some guidance, when possible. This is never legal advice, or specific instruction on how to proceed, but I find some attorneys are benefited by just sharing some ideas or perspectives. A little "brainstorming" can be very productive.

Unfortunately, too many attorneys contact our district offices and seek advice from staff. They find themselves uncertain how to proceed and they resort to calling a judge's secretary for advice. Attorneys should avoid this course. Secretaries are rarely able to provide advice that will move the case forward. It is not appropriate for the assigned Judge, through staff or directly, to tell you what to do, what kind of motion to file, what objection to raise, etc. If you find yourself considering such a call, I encourage you instead to reach out and touch some experienced practitioners and brainstorm for ideas. I am certain that their suggestions will be more helpful than those of secretaries at our offices. 

Imagine yourself in the converse situation. You find yourself at a motion hearing, status conference, or trial. Counsel opposite argues "judge, I didn't know what to do, but your secretary told me filing this motion would solve this situation." Or worse (yes, this actually happened) "judge, your secretary said if I asked for this relief, you would grant it; I don't see why we need a hearing." As opposing counsel on that argument, are you feeling like there is a level playing field? Do you feel like you got a fair shake when there is at least a perception that the other side is getting advice from the judge?

My final answer on Friday? Either supply the information as requested or file an objection. Simple rule of the practice of law, when all else fails, make a record. If the objection route is the one you elect, request a hearing. Under our rules, make that request in the "objection" or, if you prefer make it a "motion for reconsideration" of the judges request. Make the "exceptional circumstances" for this hearing self-apparent in the objection/motion. When I hear from counsel that are upset that there was no hearing on a motion, I often find that the motion either does not ask for a hearing or does too little to explain that there are "exceptional circumstances" that necessitate a hearing. This does not mean write a treatise. A few sentences will usually suffice to explain why this is "out of the ordinary." this could be "in my statewide practice, I have never had such a request for information on a motion like this. I fear untoward consequences for my client and others similarly situated. Conversations with other counsel has suggested this is a situation of 'first impression.' As this appears to be unique and with broad potential implications, the undersigned believes exceptional circumstances support a hearing on this objection."

Of course, ultimately, the recourse might be a writ filed in the District Court of Appeal. This is no ones' choice. It is time consuming, expensive, and lots of work. I would suggest that one not take this route until the "objection" route described above has been tried. This is in the same vein as not filing an appeal until a motion for rehearing has failed. The "objection" or rehearing route is cheaper, faster, and may provide insight for the judge or litigants that will move the issue forward.

I often hear criticism that the process moves too fast. While that could be good news, as a complaint it is troublesome. Speedy trial is virtuous as people need their concerns addressed (which is why they brought them to us to begin with), but trial without appropriate preparation can be a due process issue. More on this in later posts.

David Langham

Thursday, September 6, 2012

The Old Gray Mare She Ain’t What She Used to Be

Change is inevitable. Sometimes change means improvement, sometimes not. Most often what it means depends upon your vantage point. The practice of workers’ compensation may not be what it used to be, and perhaps referring to it as an old gray mare is not fair. However, I hope the headline caused you to read at least this far.

The September 1, 2012 edition of the Florida Bar News announced that three attorneys were recently awarded the distinction of Board Certification in Workers’ Compensation.  There are Daniel Gonzalez of Miami, Michael Rabinowitz of Tampa, and Russell Young of Sarasota. As I try to do each time such an announcement is made, I drafted a quick congratulatory letter to each this week.

I was posting the letters when I encountered some attorneys. I mentioned the purpose of my correspondence and mentioned I would like to write them a letter also. One replied that there is no reason to counsel a client to take any case to trial when it can be settled advantageously. This is certainly true. Another intimated that workers’ compensation trials are not the way to keep the lights on at his office (suggesting that settlements are). Certainly there is merit in negotiated resolutions through settlement or otherwise. 
Their comments got me wondering about the practice of Comp and whether the environment today allows certification and recertification, with the perceptions of fewer trials each year.

Coincidentally, work began in earnest this week on the 2012 OJCC Annual Report. Do the statistics support that trials in workers’ compensation are declining? In fiscal year 2012 the OJCC conducted 1,903 “trials.” Trials include merit hearings on benefits requested by injured workers, fee hearings, and a variety of evidentiary motion hearings such as motions for advance, motions to enforce settlement, and motions to appoint expert medical advisors.

Review of prior reports illustrates that the volume of Florida workers’ compensation trials has not changed markedly in recent years.

2006-2007    1376
2007-2008    1760
2008-2009    1920
2009-2010    2080
2010-2011    1888
2011-2012    1903

Although, the 2006-2007 volume seems low, that figure resulted from data reported by the various districts, without any uniform definition of what constituted a trial. It likely included only the merits hearings conducted that year. Certainly, there are fewer trials now than there were in the 1990s. However, the evidence supports that there remains a significant trial volume. I suspect that there are attorneys out there who have prosecuted or defended 25 trials, and are eligible for certification.

There are currently 207 attorneys Board Certified in Workers’ Compensation in Florida. As of June 1, 2012 there were 93,895 members of The Florida Bar. That number has likely changed since that time, and the results of the July 2012 Bar Exam will certainly change those numbers in coming weeks. However, using that figure as a benchmark, roughly two-tenths of one percent of Florida lawyers is Board Certified in workers’ compensation. 

Overall, about 4,880 attorneys are Board Certified according to the bar website, www.flabar.org.  This is roughly 5% of all Florida attorneys. The various areas of specialty are

Admiralty and Maritime
Adoption Law
Antitrust and Trade Regulation
Appellate Practice
Aviation Law
Business Litigation
City, County & Local Government Law
Civil Trial
Construction Law
Criminal Appellate
Criminal Trial
Education Law
Elder Law
Health Law
Immigration & Nationality
Intellectual Property Law
International Law
Labor & Employment Law
Marital & Family Law
Real Estate
State & Federal Government & Administrative Practice
Tax Law
Wills, Trusts & Estates
Workers Compensation
Total Board Certified Attorneys

To be Board Certified in workers’ compensation, an attorney must have practiced for 5 years, with 30% or more of their practice over the preceding three years in the practice of workers’ compensation law.  A minimum of 25 contested workers’ compensation trials, all involving substantial legal or factual issues, a peer review, 45 hours of continuing legal education within three years prior to the application, and successful completion of the Board Certification examination.

Admittedly, the application is a challenge. However, with the case-search now available on the OJCC website it is much less of a chore than it used to be. An attorney can search their name in the Google search and find those trial orders. This will provide you the case numbers, the opposing counsel details, and the issues that you need for that application.

I am proud to be Board Certified. I am proud of our Judges who are Board Certified, Judges Lorenzen, Murphy, Rosen, Sculco, and Sojourner. I am proud of our Mediators who are Board Certified, Mediators Suskin and Witlin. I am proud of our former Judges who are Board Certified, Juan Bello, Gary Frazier, and Richard Thompson. I am proud of our newest Specialists, Daniel Gonzalez, Michael Rabinowitz, and Russell Young. I am proud, in fact, of all 207 attorneys that have achieved and maintain this designation of “Specialist.”

 It is my hope that attorneys will read this and conclude that they would be proud to be Board Certified also. If you reach that conclusion and I can assist you with research on your trials and trial orders, contact me at david_langham@doah.state.fl.us