Tuesday, February 26, 2013

Justin Case, WANTED, Dead or Alive

I hear about this guy, Justin Case, all the time. He is everyone's default and excuse. Usually when I ask someone why they follow a particular procedure, they refer me to Justin. Perhaps Justin should not trouble me so, because it is perhaps better safe than sorry.

Certified Mail is not in this category though. A single certified mailing was $5.75, but the U.S. Postal Service has recently offered a special price of "only" $4.12 per delivery (should we be suspicious when a monopoly offers a discount?). Pursuant to statute, each Petition for Benefits (PFB) must be served on the Employer and the Carrier by Certified Mail, or such "electronic means approved by the Deputy Chief Judge." in fiscal year 2012 61,354 PFB were filed. This represented a certified mailing expense to the Carriers of $252,778.48 (61,354 x $4.12) to $352,785.50 (61,354 x $5.75). The expense of Certified Mail to the Employers roughly doubled this amount. Side note, without the e-JCC allowance for electronic PFB, that figure would be tripled, instead, or $758,335.44 To $1,058,356.50)

Certified mail is similarly required for Responses to PFBs (RPFB). These are to be provided by certified mail to "to the filing party, employer, and claimant by certified mail." In most instances, the claimant is the filing party. The Carrier is likely to file RPFB in response to about half of the PFB filed (this is statistically true, but it is unclear why each PFB does not generate a response). The certified mail expense of these responses is between $252,778.48 (30,677 x $4.12 x 2) and $352,785.50 (30,677 x $5.75 x 2).

This means that a minimum of $758,335.44 ($252,778.48 PFB to Carriers, $252,778.48 PFB to Employers, $252,778.48 RPFB to Claimants and Employers) was spent on U.S. Certified Mail in fiscal 2012. It was likely much higher.

When you e-file your PFB or RPFB, the new e-JCC e-service Portal allows you to serve this on the opposing parties, at least through their attorneys. This is a free service, eliminating 100% of the cost of Certified Mail “to the filing party.” As the program evolves, we hope to add the Employer email addresses also, leading to further savings for injured workers. I can accept that smaller employers will not register with the OJCC, but I am as confident that the larger Employers will register.

Despite this cost savings, several attorneys have told me that they will continue to send Certified mail copies in addition to e-service, "Justin Case." As noted above, this guy Justin can drive you crazy sometimes. I cannot recommend this Certified Mail practice, even with the "better safe than sorry" admonition. If anything, send Justin Case a copy by separate email through your own e-mail, like Outlook, with a return receipt to show you when it was received. If this process is selected, I recommend sending a PDF image instead of a link with this second email.

Carriers likely have email addresses for their insureds (their clients) already, and can enjoy even greater savings on their Responses to Petitions for Benefits (RPFB), by serving the filing party (Claimant) and the employer through the e-JCC portal.

Perhaps Justin should not trouble me so, because it is perhaps better safe than sorry. Spending a million dollars a year on Justin is not necessary. Filers receive the same confirmation that their filing was received. To understand how, see “How Will I Know.”

There is no reason to burden clients with the cost of Certified Mail with Petitions and Responses any longer. Let Justin find a new purpose in life. And, just think, if everyone follows my advice, and every state follows Florida’s lead, the U.S. Postal Service may just discount their Certified Mail prices further. 

And in that regard, it is likely that the OJCC e-service came to the market similarly Justin Time. Use it, and save your money.

Friday, February 22, 2013

Your Name is your Greatest Asset

Disclaimer, the case discussed here is not before me, it is a circuit case with which I am nonetheless familiar. The subpoena discussed was served on the Clerk of the Division of Administrative Hearings.

The records custodian was served with a subpoena for trial. This compelled live attendance of the witness over four hundred miles away, just four business days later (the next Monday). Curiously, the documents listed in the subpoena had already been produced months before. All of the documents were produced under seal, so they were all self-authenticated. It was unclear what benefit could be gained from the custodian’s attendance. 

The OJCC counsel (the custodian’s attorney) called the issuing attorney. Emails were sent; messages were left. Calls were not returned. Counsel for the custodian puts aside that day’s work and drafted a motion to quash. Following the rules, more calls were made to discuss the dispute and the motion in good faith before filing. As Phil Collins said, “there's no reply at all, there's no reply at all.” On four days notice, it was impossible to get a hearing on the motion. The OJCC counsel filed it, unsuccessfully asked for a hearing, and left the office for the weekend. 

Monday came and went without any word from the issuer. The records custodian did not travel to the trial venue. She could not have, because she was on scheduled leave that Monday, something planned long before the delivery of this subpoena four business days before trial. 

The lack of inquiry or contact from the subpoena issuer on Monday was odd, and the subject of some curious discussion that day. Then the curiosity faded with time. Months later, in February, the subpoena issuer sends a letter and tells the custodian that she is still under subpoena and the trial will be next week (5 business days notice this time). No acknowledgement of the objection, the motion to quash or the unreasonableness of the requested presence. 

History has taught that this subpoena issuer does not respond to phone calls or emails or motions. I write a letter to the subpoena issuer, with copies to some partners in the firm. The situation is described and conclusions are stated, essentially that the behavior is inappropriate, unprofessional and unappreciated. 

I noted in the letter that our Supreme Court revised the Attorney Oath of Admission in 2011. At that time they added “to opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.” The motivation for this change is discussed in a Bar News article by Jan Pudlow, essentially “lawyers don’t always play nice.”

The subpoena issuer called back within minutes of my emailing this letter, our first return call. He starts with “I just got this file,” and “I saw the motion to quash in the file, but do not know why it was not responded to when received.” I point out to him that he signed and issued the subpoena himself months ago; he was served with the motion; he was repeatedly called last fall. The “I just got the file” is not going to fly.

He moves to “I signed it, but I sign lots of things,” and suggests that this is all the paralegal’s fault. He promises to counsel her on such situations. This “just because I signed it doesn’t make me responsible” argument is meritless. I reject it out of hand and explain that as the attorney he is responsible for any actions by the paralegal. I also point out that we called repeatedly last fall, and that he knew then of the problem.

He moves next to “I never got any calls.” I offer to get the phone records that document the calls to his office. He retreats to “I never got any messages.” I remind him that he was served with the Motion to quash, and I ask again why he never called or responded upon receipt. He realizes that his “I never got any messages” argument is also not going to fly.

He finally retreats to “let me explain the situation to you.”And then proceeds with “I had been on the job a month then (last fall); I am a newly admitted lawyer after taking the bar exam last July; I was overwhelmed when this and other files were dumped on me.” He gets no sympathy in reply. The “feel sorry for me” argument is his best yet. 

I did feel a bit sorry for him, but that is not the point. The point is he has finally told me the truth. I therefore readily accepted his apology and took him at his word that he will release the clerk from the subpoena. 

I then stepped out of Deputy Chief Judge mode and slipped into mentor mode. I briefly explain (1) it is never your staff’s fault, monitoring them is your job. (2) Reviewing incoming pleadings is your job. (3) Returning phone messages is your job. (4) Being courteous to parties and non-parties is your job. (5) Fixing problems is your job. 

I cautioned him that I have known some good attorneys who were disbarred or suspended because their subordinates or staff acted inappropriately. I tell him of others I have seen disciplined for neglecting responsibilities, like returning phone calls. 

I cautioned this young attorney that in this profession our word must be our bond and pointed out the disingenuous (at best) representations he had just made to me of “I just got this file,” which were not true. I reminded him that the only thing he would ever have worth anything in this profession would be his name, reputation and integrity.

I hope I got through to him. There is no room in this profession for discourtesy. When you are on the cusp of trial, certainly issue your subpoenas. Certainly prepare. Certainly be aggressive. But do not forego the courtesy. Some of the most effective trial lawyers I have ever seen were the most courteous with witnesses and parties, even as they eviscerated them on cross. A phone call takes little or no time. The Attorney Oath pledges “fairness, integrity, and civility,” to opposing parties and their attorneys. I pointed out to this young lawyer that no less is appropriate when dealing with witnesses and others. 

Do you wonder why attorneys have the reputation that we do? Gallup took a poll and asked “how you would rate the honesty and ethical standards of people” in various fields. Eighty-five percent of respondents rated Nurses “very high.” Police officers received 58% “very high.” Chiropractors received only 38%. Journalists received only 24%. Attorneys? We received only 19%. At least more people rated attorneys “very high” than they rated Insurance Salespeople (15%), Senators (14%), HMO Managers (12%), Stockbrokers (11%), Advertisers (11%), Members of Congress (10%) and Car Salespeople (8%). 

Lawyers cannot lie (“I just got this file”). Lawyers cannot equivocate (it’s the paralegal’s fault). I make mistakes every day. My workload is sometimes unbearable and that’s an excuse. But in the end, I just make mistakes. I am human. I recognize and accept that you are also. I expect you will make mistakes and overlook things. I will forgive you, and ask the same of you. 

I hope you will join me in accepting these mistakes we make. Own them, admit them, then fix them. I am happy with people if they want to fault me for being imperfect; I can live with that. I cannot accept that people would find me dishonest or unethical however. The “little white lies” lead to bigger problems. There is a workers’ compensation lawyer in Florida whose mother passed away three times in one year recently. Tragic. He got each of his three continuances; he lost his reputation in the process. 

What do you care about? I hope you will join me in putting integrity, honesty, civility and courtesy at the top of the list. Whether you are dealing with other attorneys, witnesses, or the public, our civility and courtesy will say it all. As we each act individually, so will the public perceive our profession. Life is too short, and your name is your greatest asset.

Thursday, February 21, 2013

West Palm Beach is Moving

The OJCC is so fortunate to have the team we have. Specifically, in this instance, the support team. For over a year, the Administrative Services department at the Division of Administrative Hearings has been working to secure office space for our West Palm Beach District Office. The construction is underway. On April 1, 2013, the West Palm District will be in new surroundings at

One Clearlake Centre, Suite 200
250 S. Australian Avenue
West Palm Beach, Florida 33401
Phone: 561-650-1040 

The new surroundings will be different than our old premises. The public areas of the office will include hearing rooms, videoteleconference hearing rooms and mediation rooms. Staff work areas will not be accessible to the public however. This will make West Palm Beach consistent with the format that we have been using with all of our office relocations over the last ten years. 

Make a note about the date. If you receive a notice of a proceeding, trial or mediation to occur before the West Palm judges or mediators after April 1, 2013, note that the proceedings will be at this new address. 

We will have free parking in the attached garage (so you don't have to go out in the weather when entering or leaving the office). Remember to get your parking ticket validated so that you do not have to pay as you exit. 

There is a nice coffee-shop in the ground floor of the building. The view of the lake from there is quite pleasant. A great place to meet prior to or after a mediation or hearing. 

Overall, I think you will find the new location most accommodating. I look forward to your feedback on the new District Office. 

Monday, February 11, 2013

DAY Nominees Named

The Statewide Judicial Nominating Commission met February 11, 2013 in Orlando.

Four Judges sought nomination for reappointment. Judges Beck (SAR), Hill (GNS), Remsnyder (MEL) and Roesch (PMC) were unanimously nominated for reappointment to their respective positions.

A fine group of applicants sought nomination to the position of Judge of  Compensation Claims in Daytona. The Commission has had the chance to interview several of these individuals before as recent vacancies occurred in Jacksonville, Melbourne, and Lakeland.

I am consistently struck by the tremendous level of experience that comes to the table when we have an OJCC vacancy.  The volume of applicants is variable, but the quality is consistent. I am encouraged when individuals with this level of experience, in comp and in life, are willing to step forward and undertake what I think is one of the most professionally rewarding careers in law.

After a long day of interviews, the Commission voted to nominate Wilbur Anderson of Daytona Beach, Robert Dietz and Steven Pyle, both of Orlando. To have prevailed in this interview process, against such stellar completion is worthy of compliment. However, all of the applicants are to be complimented for their willingness to serve and commitment to our system.

The next step in this process will be interviews at the Governor’s Office. If you have a perspective to share regarding these nominees, I encourage you to write to Governor Scott. If you do not engage in the process, it is hard to expect to be heard later if you are disappointed in the outcome.  

Sunday, February 10, 2013

OJCC WCI Seminar, Tallahassee

We had a great program last Friday. The First District Court of Appeal hosted our program. The Workers' Compensation Institute provided support, lunch, and logistical support. Our presenters were exceptional. James McConnaughhay or WCI kicked the program off. First District Court Chief Judge Robert Benton welcomed the attendees and reiterated the importance of both the workers' compensation system and the effort to continually refresh skills through educational opportunities.

Judge John Lazzara organized the program and was our master of ceremonies. Judge Lazzara deserves all of the credit for making this program a reality.

Our presenters included Steve Coonrod, Mary Cruickshank, Randall Porche, Tara Sa'id, Jake Schickel, Christopher Smith, OJCC State Mediators Susan Bisbee, Alan Gordon, Workers' Compensation Judges Beck (SAR), Condry (ORL), Lazzara (TLH), Lewis (FTL), Medina-Shore (MIA), and Sojourner (LKL), and First District Court Judges Ervin (retired) and Wetherell.

The team from Resource Managers Incorporated provided on site logistical support. Kathy Shelton and her team set-up, monitored audio visual technology, organized breakfast, lunch and snacks. Our thanks to Kathy, Cathy Bowman, Woody Douglas, and Shirley Kendall. The program would not have succeeded without them.

The Division of Administrative Hearings provided logistical support with the live program and the recording and playback processes. Our thanks to Administrative Services Director Lisa Mustain and her team. They coordinated our videoteleconference sites, arranged the recording, broadcast the recording, prepared the handout materials, and anticipated and solved a myriad of issues with the program preparation.

Six hours of CLE credit were available for those that attended live in Tallahassee. The Florida Bar CLE credit number for this six hour program is 1301008N (New Reality of Workers' Compensation Litigation; 6 hours total, 1 hour of ethics, 4.5 hours Board Certification in Workers' Compensation).

The OJCC recorded and rebroadcast the ethics panel over the OJCC video teleconference system at noon on Friday. Viewers attended in Miami, Ft. Myers, Port St. Lucie, Orlando and Tampa. The video will be made available on Youtube soon. If you want a copy of the printed program materials mentioned by the panelists, email me david.langham@doah.state.fl.us. The Florida Bar CLE credit number for this one hour recorded program is 1301009N (Judicial Panel Discussion of Ethical Practices; 1 hour general or 1 hour ethics).

I am thankful to all who participated Friday. Through educational opportunities like this we all grow. I learned things Friday that I will use for the rest of my career; I hope you did too. It is my hope we can continue to enjoy the partnership of WCI and the Court. We look forward to presenting more programs like this in coming years.