Friday, March 29, 2013

The National Association of Workers Compensation Judiciary

The National Association of Worker's Compensation Judiciary (NAWCJ)(www.nawcj.org) was founded five years ago. Many people may have seen the logo, but are not familiar with this effort. In forming the NAWCJ, we recognized that there was no educational institution focused on the issues that face workers' compensation adjudicators. When a new constitutional judge is appointed or elected in most jurisdictions, there is a "judge college" which she or he must attend within a short time thereafter. Not so for most, or perhaps all, workers' compensation adjudicators. 

As troubling, there is little in the way of specific adjudicator continuing education for workers' compensation adjudicators. This subject matter is  usually addressed by a very small group of adjudicators in each state. Typically, workers' compensation adjudicators are employed specifically for such claims and housed within a state's workers' compensation commission or board. These agencies have minimal resources for adjudicator training and education. In the world of workers' compensation, modernization and education have always been a budgetary challenge.

Certainly, there are a multitude of  educational seminars conducted around the country. Many are state-specific, which may be helpful for substantive legal issues. Many are medical, which certainly help us better understand mechanics of injury and new testing or treatments. What is missing in these programs and seminars, however, is a focus on the role of the workers' compensation adjudicator. States have Commissioners, Comp Judges, Administrative Law Judges, Deputies, Hearing Officers, Benefit Review Officers, and more. With all of these varied titles come varied responsibilities and authorities. The role of a workers' compensation adjudicator, with all of the nuances implied by these titles and responsibilities, is varied. 

Unlike most constitutional judges, workers' compensation adjudicators are both finder of fact and holder of law. Workers' compensation systems may have more pro-se litigants than are seen by constitutional judges. Workers' compensation systems may have different evidence standards than are used in constitutional courts, and may have multiple standards depending on the type of claim or whether all parties are represented. Workers' compensation statutes are often complex, sometimes self-contradictory, and seem to be constantly amended. 

In short, the job of a workers' compensation adjudicator is unique and challenging. 

The NAWCJ seeks to fill the educational void with adjudicator education, specifically for adjudicators. In 2013 the NAWCJ will offer its fifth annual Judiciary College in Orlando. The program will include participation in the Earle Zehmer Moot Court competition on Sunday, August 18, 2013, followed by educational programming Monday through Wednesday, August 21, 2013. Topics will include judicial ethics, evidence for judges, medical evidence and documentation, and effective judicial writing. Perspectives will be shared, and knowledge will be imparted. Attendees will have ample opportunity to discuss their personal challenges and perhaps will hear how colleagues have already addressed such challenges in distant jurisdictions. 

Over the three days of instruction, adjudicators from across the country, eighteen jurisdictions last year, will hear from exceptional speakers, with a specific focus on adjudicating workers' compensation matters. Each year, the goal is to present a better program than the previous year. To date, the NAWCJ has consistently delivered on that goal. 

The success of the NAWCJ is the result of the efforts of our board of directors and officers, and the members. Any adjudicator is eligible for membership, and the application is in every issue of the Lex and Verum, available on the website

With consistent significant help of Workcompcentral, the NAWCJ publishes this newsletter monthly. Workcompcentral publishes the ins and outs of workers' compensation across the country  daily.  The breadth and scope of their coverage or workers compensation is both vast an unparalleled, and they graciously allow the NAWCJ to pass a small sample of their news to our members each month. 

The Workers Compensation Institute (www.wci360.com) has provided an astounding level of support for the NAWCJ. The WCI provides the venue for each annual educational seminar, and has provided significant financial support in establishing the NAWCJ. Through their efforts, we are stronger and can offer a consistently exceptional educational program for adjudicators. 

Attorneys and others involved in the world of workers' compensation are welcome to join as Associate Members. The NAWCJ is grateful for the financial and moral support of so many attorneys, and others.  

The time is ripe for an organization serving to facilitate both education and collegiality among the adjudicators of workers' compensation claims across the country. The NAWCJ has undertaken that role, and the momentum is building. With the help of so many, the NAWCJ is here today. If you are an adjudicator or know an adjudicator, pass this along!

Thursday, March 28, 2013

Davis Productivity Awards Announced!

Florida Tax Watch and Prudential-Davis Productivity Awards winners were announced at a news conference this morning at the Capitol, moments ago. This year's awards competition will confer 468 individual and team awards to thousands of state employees statewide for their innovations and productivity improvements worth $514 million in cost savings, cost avoidance, and increased revenue for state government.

This year, the Prudential-Davis Productivity Awards recognizes the Office of Judges of Compensation Claims again. In the past, the OJCC has been recognized for development and deployment of our electronic case management database, electronic filing, the electronic appellate record process, the OJCC "case search" function for trial orders, the OJCC videoteleconference system, and the pilot project for electronic service. I am very proud of our OJCC team for their many achievements. Many have been recognized by Florida Tax Watch, but all of the achievements, award-winning or not, have been of great benefit to our customers and the State. 

This year, the OJCC is recognized by Florida Tax Watch with two awards. I am very proud of both of our teams that are recognized this year. The OJCC is made up of an incredibly diverse and talented group of people. Their achievements are the result of a never-ending drive for this agency to be the best that it can be. I feel that the Florida OJCC is a model for any adjudicatory organization, and I am so privileged to serve with such a group of people. 

The first OJCC Florida Tax Watch award for 2013 is for the development of the Voluntary Mediation Program. The development of this process involved much brainstorming, organizing, and contributions from many in and outside of the OJCC, most notably in the form of feedback and ideas. However, the effort was led by OJCC Mediators Stuart Suskin (GNS) and Paul Harwood (PSL). These leaders were integral to the development of the process and the implementation of the Rules and forms that are critical to this program. Their efforts and this voluntary mediation process will save workers' compensation system participants money and time as they engage the services of our talented team of State Mediators throughout Florida. The two will receive a Certificate of Achievement.  

The second OJCC Florida Tax Watch award for 2013 recognizes some of our "behind the scenes" team members in Tallahassee. Jeff Russell, our web programmer and information technology expert teamed with our Information Technology Director, Susan Brown, to implement the process of having the Department of Revenue (DOR) share their child support data with the OJCC. In this process, Andrew Ellis of the DOR also played a critical role. These three are being recognized by Florida Tax Watch for this effort.

This project was the foundation upon which the OJCC developed your ability to obtain child support arrearage information from our Office rather than from DOR. With the support of the OJCC electronic filing program and e-service program, we have made it cheaper (free, e-filing) and easier to request this data, cheaper (free, e-service) for the State to provide this data, and we are delivering this service with more rapid turnaround times. A double benefit of this new paradigm is that whichever attorney requests the data, all attorneys of record receive the response. Our IT team that developed this process for sharing data and for facilitating our staff access to that data are receiving an Honorable Mention from the Florida Tax Watch recognizing their innovation. 

We will be presenting our 2013 award winners with certificates memorializing their efforts and the contribution they have made to the more efficient operation of the Office of Judges of Compensation Claims. I appreciate and applaud their efforts, and the efforts of all of our team around the State.  

Wednesday, March 27, 2013

How Do You Litigate?

According to Mirriam-Webster online, the phrase “carpet bomb” was first coined in 1944.  Their definition is

1 : to drop large numbers of bombs so as to cause uniform devastation over (a given area)
2 : to bombard repeatedly, widely, or excessively <carpet bomb the country with advertising>

Carpet bombing is indiscriminate. A process of dumping as large a volume as possible over that “given area” in hopes that in the process of covering the entire area you will be lucky enough to hit the actual target. It is a messy, inefficient process. It puts minimal faith or trust in skill and maximum faith in luck (lucky enough to hit the target). By comparison, a sniper spends significant time in preparation for her or his effort, and then fires a single shot. The sniper’s shot is focused, precise, and affects the target without destroying the entire “given area.”

There is a great diversity in the manner in which various attorneys try a case. Some present at trial with a planned, concise, relevant package of evidence. Their goal is to prove the point for which they came to trial. They are efficient, effective and persuasive. Their approach to litigation is focused like the sniper. They ask the five questions they need, and then tender the witness; no long explorations of the marginally relevant. 

On the other end of the continuum, there are attorneys that bring as much evidence to trial as possible, often with no apparent consideration of the concept of relevance. They swoop through the trial and deposit piles of paper, like a carpet bomber, hoping that somehow quantity will prevail over quality of evidence. In the words of one Florida Judge, “they throw it all against the wall and hope something somehow sticks.”

I recently heard a war story from an attorney. He related that on a decades old claim, he was recently litigating a reasonably simple medical authorization issue. At the conclusion of the treating physician’s deposition, the opposing counsel had the doctor authenticate his “entire file,” and then asked that the entire chart be attached to the deposition as an exhibit. 

Counsel relating the story asked why the six inches of paper would be relevant to the limited issue that would be addressed at trial. He explained to his opponent that there was much in the stack of documents that would not be admissible as evidence. The response was  essentially that counsel would nonetheless attach the entire chart and “let the judge sort it out.”

At a seminar I attended this month, one of the presenters opined that two detrimental technological developments of the twentieth Century were the air conditioner and the Xerox machine. He explained that air conditioning provides the comfort to allow attorneys to spend hours in depositions, when the heat (here in the south anyway) might otherwise lead to greater focus, asking only the relevant questions, and more expeditious conclusions. The Xerox machine, he posited, allowed attorneys to ignore the analysis of what is really needed or really relevant, and instead to just “copy the whole file.”

I hope that we will not look back and feel that electronic filing is  a similar technological “enabler.” We see huge volumes of documents filed with the OJCC using the electronic filings system, e-JCC. This system makes it much easier and cheaper to send documents to the OJCC. With the addition of the e-service component in 2013, this system makes it much easier and cheaper to send documents to opposing parties and counsel. That this facilitates sending and filing documents should not encourage counsel or parties to indiscriminately file documents without regard to relevance, and focus.

A side note, which should be obvious, e-filing or filing a document with the OJCC does not mean that the document will be admissible as evidence. Several times in recent months I have heard judges recount arguments (in response to admissibility objections) that were essentially “judge it is on the docket” (or as some are fond of saying “it’s on DOAH) so "it is in evidence already." These lawyers have apparently forgotten their law school training in authenticity, hearsay, relevance, and more. Just because a document is filed, "in the docket," does not make it admissible.

To be effective, trial counsel must understand the issues which the adjudicator will be asked to resolve. Counsel must then develop and prepare evidence that tends to prove or disprove the material facts (that is “relevance” defined). That evidence should then be carefully and thoughtfully prepared for submission to the Judge.

Ask yourself, is there any relevance in the nurse’s notes from the injured workers’ hospitalization, four years prior to the work injury, faithfully documenting body temperature and other vital signs every four hours during that hospitalization? Does the injured workers’ vital signs four years before the work accident tend to prove or disprove whether the worker was or was not injured, whether that injury is or is not related to work, whether the injured worker does or does not need the currently claimed treatment?

Logically, there is no reason to put this irrelevant data into the record. As logically, there is no reason to submit repetitious copies of the same medical records. I have seen attorneys attach those six-inch stacks of medical records to the deposition of each physician to testify in a case, and then file a separate Motion to Admit with another identical set of those records. It is frustrating to the process when the six-inch stack includes correspondence, subpoenas, and old irrelevant treatment records. It is even more frustrating when multiple iterations of that six-inch stack are included. I have seen trial records that were thirty inches tall and taller.  

Counsel should remember that their goal is to prove or disprove material facts at trial. Your goal is to guide the adjudicator as precisely as possible to the target. In this regard, the efficiency of the sniper is a better goal than the indiscriminate carpet bombing methodology that we too often see. 

If this practical reason for being precise with your evidence is unconvincing, there is a rule specifically on the topic. Rule 60Q-6.121(4) cautions that “voluminous or cumbersome exhibits shall not be received in evidence unless their use is unavoidable. Not “inconvenient.” The Rule does not allow voluminous exhibits if they are “easier,” “quicker,” or less work for the attorney. Their use is acceptable only if “unavoidable.”

Are you an efficient, careful and focused litigator, or a carpet bomber? Know that the focused, targeted approach will be less distracting, more convincing, more efficient, and more effective. Take the time to prepare your case for trial, to know your issues, to focus your evidence, and you will enhance your chance of prevailing. 

Monday, March 25, 2013

Child Support, Tell us What You Know

Some interesting questions about child support lately. They bear addressing in a public manner as many may find both the questions and answers helpful.

If an injured worker has multiple dates of accident, and thus multiple OJCC case numbers, does a request for child support data need to be filed in each such case number in anticipation of potential settlement? 

The Short Answer (TSA) is No. 

When an attorney submits a request for information on the past child support owed, this is merely a request for information. The process has not changed, all that changed is that the OJCC is now the source instead of Department of Revenue (DOR). When you submit a request, our staff will check the data we received from the DOR, and will then upload that information to the injured worker's case docket. That is the only effect of such a request. You ask for information, our district staff provides the information. When the information is uploaded to the docket, it is served to the counsel on the case also. 

Requesting this data multiple times, that is by filing an identical request under each case number, is merely repetitive and accomplishes nothing (except making unnecessary work for our staff). It also begs the question in many cases, why are these OJCC cases not consolidated. There may be good reason, but ask yourself the question, what is that "good reason" in this case? Now, when the cases settle, a copy of the child support information should be included with each settlement motion or joint petition, see Rule 60Q6.123. If the cases are consolidated, then there will only be one motion or petition; consolidation saves everyone work.

We have also seen instances in which one attorney requests child support information on a claimant in a particular case, the data is researched and a report is uploaded and served on both attorneys. Then, within a matter of days (in one case I know of, that same day), the other attorney uploads a request for child support information. This is redundant and unnecessary. The data will not change hourly, and will be likely to change on a daily basis (our data from DOR is updated weekly, usually on Thursdays). 

If an injured worker has no Social Security Number, or if the Social Security Number provided does not match their name and other data, what do we do?

TSA is just let us know. 

We recognize that data will not always match. That is not a fatal flaw to the process, but not communicating what you know, up front, may lead to delay as our staff asks the questions that will inevitably follow. 

We have attorneys submit requests for child support information, upon which they put the information that has become part of the case. This may include a Social Security Number (SSN) that does not "match" the injured worker. This may be because the injured worker has no SSN or it may be because a typographical error has occurred somewhere along the way. It may be because there has been a name-change.

Certainly, the easiest way for the OJCC to search for child support information is using the SSN. However, we can search for an injured worker in our DOR database using their name, date of birth, address, and other identifying information. This process is not as fast and easy as the SSN search, but it is a practical alternative way for our staff to do the necessary research. 

A problem arises when we are provided a SSN, and that SSN results in a database response with a different person's name. This result will likely cause the district staff to pause and email the attorney(s) with the result that "the SSN you gave us does not match the Claimant's name." This response is an inquiry. Our staff cannot tell why the SSN does not match the name. They are not faulting you or complaining. It might be a name-change, a typographical error, or an invalid SSN. If you know one of these, or some other issue, to be the case, let us know when you file the request for child support information. Putting that explanation on the form, or even "no SSN," will save the time for an inquiry by our staff and a response by you or yours.

By giving the OJCC staff as much information as possible on the request form, you will expedite our response. If there are multiple addresses for the injured worker, provide them all. If the injured worker has changed names recently due to divorce, marriage, or otherwise, provide both names on the request form. If there is no SSN, simply say so. If you believe the SSN will not match the name for whatever reason, simply say so on the request for information form ("it is believed that this SSN is incorrect but it is provided as it is the only SSN provided"). The more we know, the easier it will be for us to be responsive to you. 

As always, email me with questions, comments or ideas. david.langham@doah.state.fl.us

Wednesday, March 20, 2013

Don't call us, we'll call you

Sugarloaf immortalized this lyric in its 1975 hit. 

I was reminded of it when I had a conversation recently, updating me on the efforts of our Clerk's office. As you know our Clerk's office has been working hard clearing up the thousands of duplicate carrier addresses in our database. We are making great progress on that effort.

In the course of that communication, I learned that the clerks are receiving a fair volume of calls and emails each day from carriers and third party administrators. They are calling to tell the Office of Judges of Compensation Claims ("OJCC") that a particular claim, about which they received a document link email,  is not their claim. Some callers are asking that we take their company off of that particular claim, on their verbal advisement that this claim is "not theirs."

The OJCC is serving (that is delivering by email) pleadings that are filed by parties in a case. This may be a Petition, a motion, or any other document. The OJCC is sending the link to the carrier or third-party administrator that was selected by the filing party. The same is true when a carrier's adjuster files a Response to Petition for Benefits ("RPFB"). When the RPFB is uploaded by the adjuster, the link is e-served on the claimant's attorney.

In this regard, the OJCC is but a conduit, a path, for the transmission of the document link. The attorney that files the PFB selects the name of the carrier from the list of carriers in e-JCC. The attorney selects the carrier. It is this selection that controls who will receive the email link to the document. If they select the wrong carrier, the email will go to the wrong carrier. 

The OJCC in this regard is like the post office. We are "delivering" to the carrier that the attorney designated. You would not call the post office if you received a piece of mail that was addressed to you correctly, but which was not yours. It was delivered to you because it was addressed to you. Calling or emailing the OJCC to tell us that you do not believe you belong on a particular case is no more effective than calling the post office when they deliver an envelope addressed to you. It is coming to you because it is addressed to you. We cannot change this any more than the Post Office can alter the way an envelope is addressed.

Carriers (or anyone) that receive link emails from the OJCC, which lead to documents that are not theirs, should contact the sender (the party or attorney that uploaded the document).  The title of this blog should perhaps not have been "don't call us, we'll call you" by Sugarloaf, but instead "Return to Sender," by Elvis, 1962. That, the sender, is who needs to know that their mail went to the party to whom it was addressed, although that is the wrong party. The sender can correct this by finding the correct addressee and have the change made in the OJCC database. 

It is not that we do not want to know, it is just that we cannot correct their mistake. I can tell you that finding the correct carrier for a particular employer is not always easy. I recommend that people use the "Proof of Coverage" database maintained by the Division of Workers' Compensation, 

This sometimes yields different results than the paperwork which injured workers present when they consult an attorney. The reasons for this are complex, and in the end the real point is finding the right one to serve. When errors are made, we need to get them corrected. The "right carrier" needs to be served, and the case will proceed on its merits thereafter. 

Understand that errors will occur, no one is perfect and neither is any source of information. When mistakes happen, contact the sender and it will hopefully be resolved. After all, it is in the best interest of all parties that the correct carrier is identified, noticed, and engaged in the process of the claim. 

Tuesday, March 19, 2013

Who should follow the Rules?

The easy answer is everyone should follow the Rules. 

Why should we have rules of procedure? There are many answers to that. The easiest one is that the statute says so. Section 440.45(4)  Fla. Stat. says "the Office of the Judges of Compensation Claims shall adopt rules to carry out the purposes of this section." 

Beyond the easy answer though, the purpose of procedural rules is essentially transparency and consistency. Any litigant or attorney should be able to answer many "what if" and "how do I" questions by referring to the Rules. They are a road map to the appropriate destination, which one should follow. Judges should expect attorneys and parties to comply with the Rules. Many Judges know the rules better than I and can quote them from memory. 

When the Rules say “Any request for an order or for other relief shall be by motion” (60Q6.115(1)), Judges require motions, and decline to act on verbal or correspondence requests for relief or change, except from unrepresented parties. When the rules say “no less than two business days prior to the final hearing, each party is required to file a brief memorandum consisting of a statement of relevant facts and written argument” (60Q6.116(7), Judges expect parties to file their memoranda and materials. When the Rules require that settlement motions include child support documentation from specific counties (60Q6.123(1)(a)5.), Judges will not approve the motion without that documentation. 

The whole point in having the Rules, is they make practice predictable. At least they should. When the Rules provided that Judges would not generally enter orders upon stipulations, we nonetheless had Judges who ignored the rules. Some even encouraged attorneys to disregard and break the Rules. 

In the current Rules, there is a cost reimbursement “safe harbor” intended to expedite the processing of settlements in which the parties are represented. It is a simple Rule, 60Q6.123(5):
“(5) The judge shall consider the disclosed costs to the extent necessary to determine they do not include the attorney’s overhead or other fees. A claim for cost reimbursement in the amount of $250 or less need not be set forth with specificity or detail.”
Despite this Rule, I am hearing from attorneys that Judges are requesting details about costs within this $250.00 parameter. 

I just returned to the office from a trip to an ABA educational conference in Miami. One of the chores associated with travel in my job is the completion of reimbursement forms regarding my expenses. The State has very specific rules regarding reimbursement, and generally I have to have receipts for everything. However, if I am missing a receipt, I can complete a “missing receipt” form, which takes time. 

On this trip, I had some toll receipts. When I returned my rental car, I left them in the console. Yesterday, as I completed my reimbursement paperwork, I realized they were missing. I elected not to complete the missing receipt form though. I do not recall the toll (something less than a dollar), and the time I would spend researching the amount and completing the form is not worth the reimbursement for the toll. This is a classic cost-benefit analysis from high school economics. My time (cost) is worth more than the money that I would recover with the research and the form (benefit). The point is, some paperwork is not worth the time it requires to complete.

The same logic is behind Rule 60Q6.123(5). That is, the Claimant’s attorney’s time (cost) is more valuable than the benefit (less that $250.00 in costs). The delay for the carrier (cost) in seeing the settlement approved is more valuable than the benefit. The effort of the Judge or staff (cost) in reviewing any details of the costs when they are less than $250.00 is more valuable than the benefit. In short, the costs to the worker’s compensation system, associated with documenting or reviewing minimal (less than $250.00) costs, outweighs any benefit. 

The simple solution, let’s not waste time with costs under $250.00. The merits and detriments of this simple solution were vetted by claimant’s counsel and defense. The Florida Bar Workers’ Compensation Section and Florida Workers’ Advocates leadership weighed, debated and commented. The Florida Bar Rules Advisory Committee had the opportunity to comment. The Rule was published and commented upon. 

Rule 60Q6.123(5) is the considered and vetted procedure published by the Office of Judges of Compensation Claims in Rule, pursuant to statute. Despite that Rule, there are allegedly some judges who continue to demand detail and specificity on costs that are within the $250.00 threshold, or who deny cost reimbursement within that threshold in the absence of documentation. If this is true, then there are judges who are not following the Rule. 

If there are Judges who are not following the Rules, then it is my hope that their order(s) explains why they have elected in a given instance to not disregard the Rule. The core of Judicial independence is your absolute obligation to support the Judge even when they rule against you. No one wants anyone telling Judges how to rule, and I will not do so. However, I think we all have the right to expect Judges to either follow the Rules or to have their rulings explain why they did not. 

If Rules are ignored without explanation, and this is the example we are setting, it troubles me. I think judges have every right to expect attorneys and parties to follow the rules. By the same token, I think the citizens of Florida have every right to expect that their judges likewise follow the Rules or explain why they are not. 

Or should everyone just be free to obey the rules that they personally find convenient and ignore the ones which they do not? I would like to hear from you, david.langham@doah.state.fl.us

Wednesday, March 13, 2013

Read the Rules - Effective E-Filing

Disturbing to say the least. Recently, a Judge was preparing for a final hearing. District staff sent an email to the two attorneys reminding them of the requirements for uploading trial exhibits, directing them to Rule 60Q6.108(1)(g).
(g) Any document filed electronically shall be uploaded individually, except that exhibits, supporting documents, and proposed orders for any motion may be filed along with the motion. In naming uploaded motions, counsel shall specifically identify the type of motion by naming the relief sought. In naming depositions filed electronically, counsel shall include the deponent’s name and the date of the deposition. If an uploaded document is specifically intended as a hearing exhibit at the time of filing, the name shall also include “proposed hearing exhibit” and the date of the scheduled hearing. All uploaded documents shall include sufficient specificity in naming to allow identification of the document from the docket remark.
The District Office received an almost immediate telephonic reply: “I don’t have a copy of the rules, I’ll have to Google it.” This response could almost be comical, but it is in fact disturbing at best. Many calls to our District offices can be answered by reading the rules. Lawyers and paralegals alike should know the rules and consult them when practicing workers’ compensation in Florida.

The 60Q rules have been in effect just over ten years now. The effective date of the original rules was February 23, 2003. Attorneys and staff have had a decade to get used to the fact that these Rules exist. The rules are easy to find, they are on the OJCC website, www.fljcc.org.

Despite this, we still receive pleadings that cite the Florida Rules of Workers’ Compensation Procedure as published by the Florida Supreme Court. These rules are no longer in effect, nor are the “Uniform Practice and Procedures.” If you are citing these, change your forms. Citing rules that are no longer in effect does not advance your case.

Certainly, the content of the 60Q Rules has changed over the last decade, with revisions in November 2006, October 2010, and October 2012.  However, the existence and the location of the rules have been consistent.

Back to 60Q6.108(1)(g). The labeling of documents on the case docket is no different than the name on a paper file folder, or the title on a pleading. It is a clue to what is inside. When the Judge or District staff prepares for a trial, they rely upon the title of documents in the case docket. (Side note, when you file something it is then “in the Dockey,” it is not “on DOAH”). Documents named “notice of filing” are far too common in the Docket. The rule seeks to prevent this, “all uploaded documents,” that is all inclusive. This “all” means each and every document. The rule says “shall,” not “may” or “can,” but “shall.” This is mandatory. And “sufficient specificity” is required.

The label “notice of filing” is not sufficient under this rule. The label “deposition” is not sufficient under this rule. By the same token, please do not use other non-descriptive terms like “motion,” notice,” or “exhibit” by themselves.

The Rule, for motions, requires counsel to “specifically identify the type of motion by naming the relief sought.” Therefore, not “motion,” but “motion to compel,” or “motion for protective order.”

The Rule, for depositions, requires counsel to “include the deponent’s name and the date of the deposition.” Therefore, not “deposition” or even “deposition of Dr. Jones,” but “deposition of Dr. Jones taken 01.15.13” or “deposition of Dr. Jones taken January 15 2013.” If you strive for brevity, “01.15.13 depo of Dr. Jones.”

The Rule, if you are using this particular filing for a hearing, says you should include that in the docket remark. So the deposition of Dr. Jones mentioned above should add the phrase “proposed hearing exhibit” and the hearing date. So “deposition of Dr. Jones taken 01.15.13,” if intended as an exhibit for the March 14 hearing, should become “deposition of Dr. Jones taken 01.15.13, proposed hearing exhibit for 03.14.13.” There is no magic in this naming, but get the message across.

Many people do not know, but computers interpret “/” as a divider in file names. Whenever you use the internet, you see “/” in the address bar. An example from a story about football I read this morning: http://search.yahoo.com/search?cs=bz&p. each “/” divides the address. The same is true when you save a file on your computer, each “/” delineates a directory or folder. I know, way too much computerese. The bottom line, please do not use “/” in your file names when you upload. Use periods instead. So, 03/14/2013 becomes 03.14.13 or 03.14.2013. The “Employer/Carrier” becomes the “Employer.Carrier.” using periods instead of “/” will keep the dockets clearer and will facilitate easily saving documents for later use.

It would also help if you please quit screaming at us. In the internet, ALL CAPITAL LETTERS ARE THE SAME AS SCREAMING! USING ALL CAPS MAKES THE DOCKET REMARK HARDER TO READ. It would help us all if you refrained from using ALL CAPS unless they are absolutely necessary. ALL CAPS provide emphasis when they are necessary. When all you use in every docket remark is ALL CAPS though, you are not emphasizing, you are just SCREAMING AT US, and ALL CAPS THAT ARE BOLD UNDERLINED AND IN ITALICS CAN BE WORSE, ESPECIALLY WHEN IT IS ALL THREE!

Finally, it is a docket remark, a comment. It is not a novel, and really should not even be a short story. Keep the comment brief, just what is needed to describe the document that you are filing. We find docket remarks that are so long and detailed that they are literally incomprehensible. Keep it simple and descriptive. For example, if you say it is the “Employer.Carrier’s response to 03.14.13 motion to compel,” that is sufficient. We do not need (the italics) “the Employer.Carrier, Smith Amalgamated Production Facilities and United International Claims Administration and Adjusting Enterprises response to 03.14.13 motion to compel production of items 3, 7, 15, 29, and 32 of the request to produce documents filed by Claimant, the injured worker herein, on December 12, 2012 regarding the medical records, employment file, earnings reports, and photographs . . .” You get the point. If the detail, such as the employer name or carrier name is needed because there are multiple E/C, then specify. If not, then adding the names of the E or C do not help, they just clog up the docket. 

Monday, March 11, 2013


What was introduced initially as a committee bill, has now been filed by Representative Stone and the Civil Justice Subcommittee, now designated HB7033. 

The full text of the bill is here.

This will amend Fla. Stat. §43.291 and Fla. Stat. §440.45. 

The changes to Fla. Stat. §43.291 would clarify that all commissioners appointed by the Governor would serve “at the pleasure of the Governor.” The statute would specifically exclude “those selected from a list of nominees provided by . . . The Florida Bar” from this authority. Essentially, each Governor would be free to appoint five members to each commission, and to remove and replace those five members at will. 

The changes to Fla. Stat. §440.45 are multifaceted.

Currently, each judge of compensation claims is appointed by the Governor, from a list of three nominees. The nominations are made by the Statewide Judicial Nominating Commission for Judges of Compensation Claims, or SJNCJCC. Judges who seek reappointment are interviewed by the SJNCJCC every four years, and the SJNCJCC may recommend reappointment or not. If the SJNCJCC recommends reappointment, the reappointment decision ultimately remains with the Governor, who is not bound by the SJNCJCC reappointment recommendation. If the SJNCJCC does not recommend reappointment, however, the Governor does not currently have discretion to reappoint, and therefore a judicial vacancy results from any SJNCJCC vote that does not recommend reappointment.

HB7033 would remove the nominating commission requirement from the process for appointment of the Deputy Chief Judge. Fla. Stat. §440.45(1)(a).

The bill would eliminate the SJNCJCC completely. The nominations for Judges of Compensation Claims would be made by the “nominating commission for the First District Court of Appeal.” The provisions of Fla. Stat. §440.45(2)(c) remain. Therefore each JCC would be reviewed by the “nominating commission” (now the First DCA Commission) prior to the expiration of their term. Arguably, this reappointment requirement would apply equally to the Deputy Chief Judge; potentially the Deputy Chief would be appointed without commission nomination, but would require commission review and nomination for reappointment.

The bill also eliminates from Fla. Stat. §440.45(2)(c) the phrase “the statewide nominating commission does not find the judge’s performance is satisfactory” from the circumstances in which the “Governor shall appoint a successor.” Arguably, this deletion gives the Governor greater discretion to reappoint a JCC, regardless of the Commission (first DCA commission) conclusions regarding the Judge’s performance. 

The bill eliminates the requirement for the Office of Judges of Compensation Claims to provide an annual report to the “statewide nominating commission,” which is consistent with the bill’s elimination of that body corporate. However, the bill does not require that the OJCC annual report would be provided to the First District Court of Appeal Commission that is substituted into the performance review role by the bill. It is unclear if this deletion is simply ancillary to the removal of the SJNCJCC from the law, or if it is intended to shift the focus of the First District Commission away from the analyses of that report, which would still be required by the amended law, but which would be issued hereafter only to the Governor, House, Senate, The Florida Bar, but not the Commission (First DCA Commission).

An interesting bill.

Friday, March 8, 2013

Airspeed and Altitude

I knew a pilot once. He explained to me a couple of maxims of that profession that ring true. First, he told me that it is important not to run out “of airspeed, altitude and ideas” simultaneously. Second, he told me that being a pilot involves “hours of boredom, punctuated by moments of stark terror.” These and many other pilot quotes and cliches are memorialized on the internet.

Is the practice of law really any different?

The case that walks in the door is rarely the case you take to trial. Each case is a journey, and along the way things change. In some ways it is similar to a plane trip; in that it is sometimes hard to see where you are going, and you have to put your faith in the professionals that can see the whole horizon. In some ways it is similar to a car trip; in that you may make wrong turns, it may take longer than expected, and you have multiple opportunities to get out an walk away.

Litigation can be months of boredom, punctuated by days of stark terror. This is particularly true for young lawyers. Examples might include (1) the day you realize that the deadline for amending the pretrial, or to file this complaint or answer, was last Friday, (2) the day your expert admits on cross that everything your opponent argues makes perfect sense, (3) the day the appellate court issues new authority, which kills your case, and trial is tomorrow or next week.  The list is virtually boundless, and we have all had those days.

It is challenges, these “days of stark terror,” I would suggest, that lead back to the test-pilot maxim, that it is important not to run out “of airspeed, altitude and ideas” simultaneously. There are cases that cannot be won, clients that cannot be pleased, and mistakes that cannot be fixed. Fortunately, these are the minority.

In the hit movie Finding Nemo, Dory presses through life with her motto “just keep swimming.” She has no clue where she is going or why, but at least she is as consistent as she is persistent. Unfortunately, she will never know when the journey ends as she has no idea where she is going. Henry David Thoreau said “It is not enough to be industrious; so are the ants. What are you industrious about?” Likewise, it is not enough to just keep swimming, where are you swimming to? Airspeed alone is not enough, in flight or litigation.

Altitude is a luxury. With altitude comes the flexibility to change directions, recover from mistakes, and maintain the progress of your journey. A pilot flies along at 30,000 feet. A mechanical failure with an engine or a wing might come at any time. In the 2012 hit Flight, our hero Whip Whitacker (sidenote, pilots always get the great nicknames) encounters a catastrophic failure with his plane. Had this occurred at 1,000 feet, the movie would have been much shorter. 

However, it occurred at cruising altitude and our hero traded altitude for time, as he dealt with the problem. Because he was at cruising altitude when catastrophe struck, he had time to respond as he lost altitude. The lesson for lawyers? Get the case to altitude as quickly as possible. Don’t put off until next month thinking “this is a new case and I have time.” If you get the case moving, despite how far away trial may seem at the beginning, you will be ahead, that is have "altitude" when disaster strikes, and you can trade that for time to deal with the problem.

Imagination and ideas are critical to successfully trying a case. Donatella Versace said “creativity comes from a conflict of ideas.” This is illustrated when two or more really good attorneys’ skills converge in one case. They try and test one another. Their skills are challenged and their intellect is honed. There is no greater day for a  trial judge than a trial with two imaginative and focused advocates, each of whom is prepared and zealous. They conflict, but this feeds their creativity; it is inspiring to witness.

One key to litigation is to have ideas in the back of your head, ready for the unexpected, the moment of "terror." This becomes easier as one gains experience. Despite it being easier perhaps for the more experienced, any attorney should have a series of “plan b” ideas. Try to think these through early in your case. A great source for such ideas can be discussing your case with another attorney, be it a partner, an associate or just a friend. A partner of mine once had a coffee cup that said “old age and treachery will overcome youth and skill.” If this is true, it is only because the old age brought a wealth of experience, scars, and therefore ideas that could be readily referenced and engaged. If you lack the scars personally, find a mentor with whom you can discuss your case. 

So from this maxim we can remind ourselves that hard work (airspeed) is critical, but it must be focused. It is insufficient to just "keep swimming."  We recognize that altitude is our friend. Having that altitude when terror strikes affords us time to react. A side note, as you approach landing (trial), and altitude is naturally decreasing, you will have less time for reaction. Try to avoid being surprised when you are close to your destination, trial. Finally, ideas need to be readily at hand. Experience should make that easier, but no attorney can afford to ignore the “what ifs” of litigation.

Focus on the maxim of “of airspeed, altitude and ideas,” and both the frequency and duration of your days “of terror” will be decreased.

Another side-note. Back to our "journey" analogy. It is important to know when to park the car and walk away, that is to settle the case and end the journey. It may be tough, when you have so much invested, but it is sometimes still the best thing to do. We may need a mediator or other outside perspective to help us understand when that time has come. Just another reason to seek out that perspective from a mentor or partner.

Thursday, March 7, 2013

Buddy, Can You Spare Me a Million?

The Florida Bar News recently featured an article “Mandatory e-filing in civil cases begins in April.” This article also described how the e-filing Authority Board has “asked the Legislature for $1.1 million to fund a help desk to assist lawyers with e-filing.” Perhaps I am naive, but this funding request seems unnecessary.

Lawyers are smart people. I find it difficult to believe that there are many attorneys out there that really need significant assistance with such a rudimentary process as e-filing.  Most have purchased books from Amazon, plane tickets from Travelocity, or items from eBay. They are already familiar with the internet, and their staff likely moreso. The Leon County Clerk is quoted in the Bar News article. He says “My full expectation is come April 1, most of the filings will come in by paper . . . most of the attorneys will ignore it [the e-filing deadline].” He explains that despite his office’s effort at educating attorneys, only 10 percent of his Circuit’s filings are being submitted electronically.

If e-filing saves attorneys money, they will come. If e-filing saves attorneys time, they will come. As the voice kept telling Kevin Costner in Field of Dreams, “if you build it, they will come.” This is likely true, but only if “you build it right.” That is, build it so that it saves lawyers time and money. The corollary will naturally be true. That is, build it right, to save lawyers time and money and it will likewise save the clerks, courts, and state money.

The Office of Judges of Compensation Claims initiated electronic filing in 2005. Early adopters were admittedly few and far between. The early adopters will remember that the OJCC did not even publicize the existence of e-filing, the early adopters fortuitously found the new process on our website. This handful of practitioners saw the benefits of the program and became regular users. They saved time and money. They were complimentary, and their enthusiasm was infectious. They spread the word and others followed. Attorneys followed those leaders to the process because it saved them time and money. They followed because using e-filing made sense economic to them.

In 2006, we began promoting e-filing. We conducted seminars in multiple cities. We used some commercial software and built some  online tutorials. From a few hundred e-filed documents monthly, the OJCC grew to about 40,000 e-filed documents monthly. In 2010, the Florida legislature made e-filing mandatory for represented parties in workers’ compensation. This was the culmination of a gradual process. The benefits of e-filing drew users to the process. The mandate to use it followed years of voluntary transition. During those transition years, people learned to use and accept the process. During those years the attorneys who advocated for the process showed their friends, partners, and even opponents how to use this process to save time and money.

The Florida Supreme Court has set an April 1 deadline for mandatory electronic filing in the state civil trial courts. E-filing was mandatory with the Supreme Court on February 27. The Court’s transition over months will be more traumatic than our OJCC transition over years.

The courts e-filing Authority Board admits that fine tuning of the e-filing portal remains. It is unclear whether the Clerks can or will enforce the April 1, 2013 deadline. Will they turn away paper filings? According to the Bar News Article, the Clerks remain unclear on whether they have the authority to do so. The Supreme Court Clerk says he will do so, effective February 27. How the Clerks handle this transition will affect how attorneys and staff react to civil e-filing. The more assistance and patience they provide, the better the transition will go. 

Of all the issues the Authority is currently discussing, the most troubling is their request for a $1.1 million dollar appropriation from the Legislature, primarily to fund a ten-employee “help desk to assist lawyers with e-filing.” The personnel for this help-desk will perhaps require some training, in order to be the new trainers for attorneys. 

However, the e-filing Authority Board needs to recognize that e-filing creates a variety of economic benefits for litigants and for the clerks. When e-filed documents arrive at the clerk’s office, for example, there is no need to open paper envelopes, straighten pages, pull staples or scan documents. These tasks are avoided, and the e-filing process allows clerk staff to instead manage images of documents which have been scanned and filed by the case parties. In short, processing images (PDF) is much less labor-intensive than processing paper.

This means that clerks across Florida will have less workload managing and processing paper. These existing employees already have a significant knowledge in the filing process. They can be trained to better understand the new electronic filing alternative. They can then put that knowledge base to work assisting the attorneys, and their staff, who require help with e-filing. These existing clerk employees, already funded in current budget allocations, can easily provide the assistance that is required through the transition to e-filing.  They can transition from opening envelopes and scanning documents to being the local “help desk” in their community, and can assist their customers.

The Office of Judges of Compensation Claims made the transition to e-filing eight years ago. The OJCC has never requested any special appropriation to support this new electronic paradigm. No help desk funding has been sought. Existing resources within this agency have been scraped together, effectively managed, and leveraged for the good of this marketplace. To date, the OJCC has not yet invested a total of $1 million in developing, deploying and marketing this sophisticated and efficient e-filing system. Just as the deployment of this program was done with existing resources, the OJCC has retrained and reallocated existing human resources to provide support and training for attorneys and paralegals.

Granted, we are a small agency. Granted, the volume of attorney customers and the volume of documents will be larger in civil proceedings. However, the volume of clerk support in the civil system is likewise much larger. The impact of e-filing on civil clerk’s workload will be proportional. As the need for paper-handlers in the various clerk’s offices decreases, those people can be trained to provide phone support for the attorneys that remain unsure of how to proceed. Thus, the agency that enjoys the benefits of e-filing reallocates its resources to support it. At the outset, this will stress existing clerk resources. However, the benefits of e-filing will rapidly follow, and a million dollar help desk investment can be foregone.

Attorneys should note the February 27 deadline for Supreme Court electronic filings and April 1 date for civil trial court e-filings. Attorneys should note the October 1 deadline for all criminal filings. And the deadlines for the District Courts, July 22 for the Second District Court of Appeal, September 27 for the Third DCA, October 31 for the Fourth DCA, November 27 for the Fifth DCA, and December 27 for the First DCA. Notably, the First and the Fifth have been using e-filing for years, to the delight of their customers. The Federal Courts have been likewise.

Between all of these experiences, on the net generally, OJCC e-filing (e-JCC), Administrative Law e-filing (e-ALJ), the appellate courts (e-DCA), and the Federal Courts (PACER), there are a great number of Florida lawyers and paralegals who are already comfortable with e-filing and ready to proceed with the new paradigm in Florida’s trial courts. Those that are not will transition rapidly. A great many attorneys have already proven that they can do so on the platforms mentioned above.