Wednesday, July 31, 2013

Filing Volumes are down Again for Fiscal 2012-13

The OJCC annual report is months away. However we have begun gathering the data, which will be reported in late October or early November. One statistic for which we receive multiple annual requests is the filing volumes. As explained in numerous annual reports, it is difficult to define the precise relevance of the filing volume information. This is because the two statutorily required matrices each provide a measure of volume, but it is doubtful that either provides a precise, accurate, measure of litigation activity. These two matrices are "Petitions for Benefits" (PFB), and "new cases." Neither account for the volume of litigation which enters our system by motion, for costs, for fees, etc.

Petitions for Benefits are the jurisdictional document by which injured workers seek payment of specific benefits, determinations of compensability of accidents, or awards of medical care and treatment (these are examples, there are many varied benefits that an injured workers might seek in Florida). Each PFB could include a single issue, upon which the injured worker seeks adjudication, or a single PFB could include claims for a vast volume and diverse character of individual specific benefits.

New cases are defined by the OJCC as those PFB which reflect a date of accident and injured worker combination which is new to the OJCC. IF an injured workers has never had a prior workers' compensation accident, then when they file it is a "new case." If an injured worker has a prior claim, and files for a different date of accident, this is likewise a "new case," despite the fact that we have prior knowledge of the injured worker's existence from the prior claim. Petitions filed in such case after that "new case" petition would be accounted for in the PFB volume. So PFB volumes each year are inclusive of all claims that year, on new cases and any that are already known to our system. 

This does not mean these "new case" claims cannot have been ongoing in an administrative fashion, with benefits being administratively delivered by an employer or carrier without dispute(s). Many claims are handled in that administrative fashion with the OJCC never learning of them as there are no disputes for us to mediate or adjudicate. It is critical to understand that the role of the OJCC is strictly limited to the mediation and adjudication of disputes. Therefore claims upon which benefits are being administratively provided, do not enter the OJCC system. 

These two volume measures are interesting. And notably the PFB volume measure has been much more elastic than the new case volume. The following figures are preliminary, and we have just begun the audit process that will eventually result in the final figures we will report in October or November. According to this preliminary data, in 2012-13, the PFB volume decreased by approximately 5.4 percent, to 58,041. This is consistent with the decrease in 2011-12, which was 5.1 percent. Likewise, the decrease in new cases was consistent in 2012-13, at approximately 1.52 percent, compared to the 1.5 percent in 2011-12.

The "new case" volume metrics is a recent addition to the data collection process, and was only collected after the OJCC became a part of the Division of Administrative Hearings in October 2001. It is therefore difficult to use the "new case" volume data for long-term comparisons, that is over the course of decades instead of years. The PFB volume, however, was gathered beginning in 1994 (when the operative pleading statutorily switched from "claims" to PFB). Therefore, this PFB volume information is available for comparison over the last 20 years. The 20 year comparison is documented in the OJCC annual reports available at www.FLJCC.org. 

This analysis is interesting, because it allows us to discern that the volume of petitions in 2012-13 (58,041) exceeds the volume filed in any year prior to 1995-96. For each such petition, it should be assumed, that a certain volume of ancillary adjudication processes will be required. This will include motions, potentially motion hearings, gathering of information, and issuance of orders. Thus, although PFB filings have decreased in the last decade, specifically since the 2003 legislative reforms, the workload is still similar to the 1995-96 period. 

Neither petition volume nor "new case" volume translates directly into mediator or judicial workload. As mentioned above, a significant amount of work can be generated by substantive motions such as fee, cost and advance issues. Procedural issues and motions also require the investment of time. The critical point of all of this explanation is that decreasing filing volumes may be an interesting element of workload considerations. However, they simply do not, and cannot, tell the whole story of mediator and judge workload.

Monday, July 29, 2013

There are Claims and then there are Claims

Reuters reported recently about a police officer who has filed a workers' compensation claim in California. It got picked up by Yahoo, and is on their page this morning. According to their report, police lieutenant John Pike was photographed "casually dousing student demonstrators in the face with a can of pepper spray as they sat on the ground at UC Davis," back in 2011 during a student protest. They note that Mr. Pike is no longer part of the police force. 

Following some public outcry and a "scathing" report about the incident, the university has paid one million dollars to settle with the 21 students involved. The students reported issues with trauma, falling grades and panic attacks. 

Now the former police officer is seeking workers' compensation benefits from the university. He claims he suffered "unspecified psychiatric and nervous system damage" as a result of his battery on the protesting students. Although the university Chancellor asked prosecutors to consider charging the officers involved, no charges were brought for the battery, the District Attorney "determined there was no grounds on which to bring a case."

Now the officer who sprayed the students will go to a workers' compensation hearing in August. This will be an opportunity for the two parties to see eye-to-eye and resolve their differences. It sounds somewhat similar to the mediation process in Florida. If it is not successful, then the case "would likely go to trial" according to the Reuters' report. 

Comments on the Yahoo version of the article were generally not supportive of former officer Pike. Some were downright insulting. Some comments questioned the decision of the prosecutor. Some questioned the prosecutor's competency. 

This story made me think about so many stories we see in the media, each a rush to judgement. The public can be quick to judgement, and less than circumspect. The news media provides a short story, with the facts it elects to provide. It is possible that these public prognosticators responding to the article are correct in their criticism of former officer Pike, and it is also possible that the officer's claims is meritorious under the provisions of California law. I am not familiar enough with that state's statute to comment, and probably would not comment if I were familiar. 

My point, however, is that we have a process for determining these questions, "due process." I had a student ask me once how much process is actually "due." I cannot remember the case where the court said so, but the answer is simply "enough." In other words, there is no "correct" answer, as how much process is due depends upon the interest that is being protected. The more important the property right, the greater process should be due. 

At the end of the day though, the opinion of the public has a place. The public should express their opinion to their representatives in the legislative branch and their executive authority. The formation of laws should include as much public discourse and input as possible. That is part of the ideal of democracy, that the public opinion is taken into account in making laws. The public should take as much interest in the laws that are being passed as they do in the articles on Yahoo or other news sites.

The adjudicatory process is different from the legislative process. It is not process for public opinion. It is not a process for decisions made, and determinations issued, based upon the modicum of information that is provided by a news story. It is a place for any person to have a reasonable opportunity to present their claim, grievance, or defense. It is a place for all of the relevant, admissible evidence to be presented by each side to an impartial arbiter. It is a place where decisions should come from such an open public process after the all important opportunity to be heard. 

I hope the public can one day come to appreciate the need for a fair process, a "due process." The parties, all of the parties, deserve such a process. Whether the claim or defense seems persuasive, at first blush, or not, the parties deserve to have their chance to be heard. 

It will be interesting to see how this particular claim concludes after each side has had that opportunity to put their best case forward and an impartial adjudicator has made a decision as to how this fits under the California law. If citizens are dissatisfied with the results of that process, then they can contact their legislator with their thoughts and seek to change the law to conform to whatever outcome they think "should have" come from the case.  

Wednesday, July 24, 2013

The New Professionalism - Where are we Headed?

We hear the word "professionalism" so often in the legal field. Most of the time it is in the negative context, as in some behavior lacks professionalism. Occasionally, we are fortunate to hear about someone displaying professionalism. Unfortunately, we all get busy in practice and procedure and the great examples of daily professionalism seem to get lost in the day-to-day and too often go unrecognized.

What is "professionalism?" It is a little troubling that we would need a definition. Like Justice Potter Stewart once noted on another topic, perhaps we "know it when we see it?" The Florida Bar has nonetheless taken a swing at defining it:

"Professionalism is the pursuit and practice of the highest ideals and tenets of the legal profession. It embraces far more than simply complying with the minimal standards of professional conduct. The essential ingredients of professionalism are character, competence, civility, and commitment."

Perhaps "civility" is broad enough, but I think any definition of professionalism should include the word "courtesy." Courtesy cannot be overrated in this profession. Sadly, simple acts of courtesy have had to be imposed upon attorneys. A prime example is 60Q5.115(2). This requires attorneys to talk with one another before filing motions:

"All motions shall include a statement that the movant has personally conferred or has used good-faith efforts to confer with all other parties or, if represented, their attorneys of record and shall state whether any party has an objection to the motion."

This is merely common courtesy, and it is troubling that we have reached the point of codifying courtesy in practice. I note this example, there are others, because we are now entering a new phase of codifying courtesy and professionalism. It will be interesting to see how far your Florida Bar and the Florida Supreme Court are willing to go to promote and require professionalism. Professionalism is not a new topic with The Florida Bar. A search of the Florida Bar News archive reveals a plethora of articles on the topic.

In 2012, the Supreme Court’s Commission on Professionalism "recommended that 'repeated and substantial' violations of professionalism standards should be subject to review and possible sanctions." That recommendation evolved over the last year to the issuance of The Court's June 6, 2013 decision IN RE: CODE FOR RESOLVING PROFESSIONALISM COMPLAINTS. The Court concludes that the "passive academic approach" to professionalism has been successful over the past 30 years, but "that we continue to experience significant problems that are unacceptable"

Justice Lewis authored the opinion. In a later interview with the Florida Bar News, he noted that for professionalism, "We’re in a whole new ballgame,” following the work of the Commission and the issuance of The Court's opinion. The definition of professionalism will come, pursuant to this decision, from "The Bar’s Oath of Admission, the Creed of Professionalism, Ideals and Goals of Professionalism, The Rules Regulating The Florida Bar, and relevant Supreme Court decisions."

The procedure will include formation of local Circuit professionalism panels. Complaints about professionalism will be referred to these local panels. Justice Lewis envisions these local panels would "be more informal, would be flexible, would provide a source or outlet for complaints that are short of grievance type of things because much of the conduct may have a difficult time fitting into one of our existing rules.” He explained that such panels might lead to referral to the existing grievance process.

The idea is appealing. I see so much behavior that is not appropriate. It is not egregious most of the time, just inappropriate and unfortunate. It is not necessarily disciplinary-level behavior. It is behavior that makes me scratch my head and ask "why." Often it exhibited by lawyers for whom I have a great deal of respect, and by whose current behavior in a certain situation I am astounded. I am hopeful that a conversation with a local panel will remind and reinforce these excellent attorneys. I hope that panel interaction will be sufficient to steer great attorneys back to the true course when circumstances and situations and frustrations may have caused natural human failings in a certain circumstance. We all make mistakes (I make them daily, it is part of life).

I am also hopeful that The Court stands by its pronunciations. I am hopeful that they, and their Circuit Grievance Committees, take a hard line on repeat professionalism offenders. I hope that they include courtesy in their definitions, and take a dim view of attorneys that are consistently and even mockingly discourteous. I tire of reading depositions that include name calling and insults. I tire of reading telephonic depositions that include hanging-up on a party. I tire of ad homonym attacks and references in trials. We can make our point(s) without this. Such behavior diminishes us all. We can face disagreement without being disagreeable.

Sure, it is not easy sometimes. We are after all human and we get our feelings hurt, face frustration, and have normal human reactions. But if it was easy, anyone could do it. Not just anyone can, that is why they call us professionals. Let's act like it, to the public and to each other. I am committing today to renewing my efforts at professionalism. I invite you to lead by example. I invite you to join me in making professionalism a primary goal. I invite you to compliment professionalism when you see it in others. I invite you to become involved in the Circuit Committees. I invite you to make our Bar, our practice and our state a better place to practice. That is my $.02, what is yours?

E-mail me at david.langham@doah.state.fl.us.

Sunday, July 21, 2013

Following Orders

This question comes up periodically. Attorneys have been ordered to do something, with which they disagree. At some point in that process, they call me to complain that they do not know what to do next (or do not want to do what they have been ordered to do). Virtually without exception, the complaining attorney(s) are thoroughly convinced that the Judge is at best acting improperly, and often they describe it in much more graphic terms. 

For the purpose of this discussion, we will understand that a Judge has entered an order that requires specific conduct. That might be that the parties will come to a mediation, present for a hearing, file a document such as a pretrial questionnaire, produce documents, or advise the judge of an occurrence or event, such as notifying the judge when a bankruptcy stay is lifted. In any of these various instances, the behavior the judge wishes has been ordered. Entering orders and managing a docket is the judge’s job. 

When confronted with an order, the parties have to do what the order says. That is what “order” means. If an attorney disagrees with an order, that is understandable. People can disagree with an order. That does not mean, however, that a party or attorney can elect of their own accord to disregard the order just because they disagree with it. Parties and their attorneys have an obligation to comply with orders from the judge. This is true when they agree with the order, but is just as true when they do not. The order is not a suggestion, request or idea, it is the law of the case. Attorneys must comply with orders. 

If the attorney disagrees with the order, then the attorney needs to take appropriate action. Like what? Surprisingly, I reply to many questions with “60Q6.115(1).” The appropriate method to ask for any kind of relief is by motion. Calling the judge’s office to explain your difficulty with the order is not the appropriate course. Sending the judge a letter (or sending me a letter) seeking relief is not the appropriate course. 

File a motion. It can be produced in the same time that it would take to compose a letter; there is no purpose for such a letter. The Motion need not necessarily be an expose of the situation from the inception of the claim. Keep it brief, but provide the requisite, relevant details succinctly. Describe the problem. Describe the outcome you seek. Cite authority that supports your outcome. Consult with opposing counsel and see how they feel about the motion. Describe their position accurately in the motion. Then file it. This is the appropriate course. The Judge may then agree or disagree with you. 

Calling the judge’s office is not effective to obtain relief. Calling the Judge's staff to explain why you intend to, or did, refuse to follow the order is not effective to obtain relief. Calling me will not help you to the relief you seek. I am happy to listen, commiserate, and discuss. I will even make a record of your call. But the order you seek needs to come from the assigned Judge. Therefore the motion seeking that outcome needs to be filed with that judge.

If you disagree with the Judge’s decision, the appropriate relief is to move for rehearing or file an appeal with the First District. That Court is the only authority that can change the assigned Judge’s decision. I cannot, I am not an appellate court. I hazard to guess that no attorney who has disagreed with a Federal or Circuit Judge’s decision has reacted by calling to ask to speak with the Federal or Circuit judge to explain why the Judge is wrong and should change their decision. 

I also suspect that no one has likewise called and asked for a status conference with such a judge for the opportunity to explain to the judge all of the issues and facts that she or he omitted from the motion and which the judge “needs to understand” to make a better decision. I also suspect that attorneys do not decide on their own to disobey Federal or Circuit judge decisions or decline to appear for hearings before them as ordered. You would not write a letter or try to schedule a status conference in Court, why would you do so with a compensation judge?

The First District is the body with the authority to change the decision made by the assigned Judge. Appeals may be time consuming and are potentially expensive. The Court may grant your relief despite your failure to appropriately seek relief from the JCC (motion), your failure to be explicit (detailed motion), your failure to cite any authority (sloppy), and your failure to seek rehearing by appropriate motion to the JCC after the appealed order. However, this is not where the odds lie, and it is not the way to bet. 

The odds lie with filing a timely, detailed motion, citing appropriate authority, with the assigned judge. If you do not agree with an order, move for rehearing. If that does not work out, file an appeal of the order. If you choose instead to just disobey or ignore the order, the result may be sanctions or worse. When you choose to ignore or disobey a judge’s order, that is a choice you are making. If upsetting consequences flow from your choice, remember that was ultimately your decision. That you do not like the consequences of your own decision is ultimately not the judge's fault.

Wednesday, July 17, 2013

The Familiar Subject of Costs in the News

David Paige, Managing Director at Legal Fee Advisors in New York, recently asked the question on LinkedIn "may a law firm make a 'profit' on expenses charged to a client." he posits that some in the legal community may charge a "mark up" on expenses such as "postage, telephone charges, and even . . . research database charges." He cites ABA Opinion 93-379 and opines that it is clear law firms may not pass on any mark-up to clients. He has a notable following on LinkedIn, and his question/post generated some interesting responses. The posting is here if you are on LinkedIn.

Some comments focused on the comparative ethics of companies that use software or vendors to mark-down attorney's bills for services. Louis Schmitt said "It's at least as ethical as 'auditors' automatically reducing legal bills by 10-15% in order to justify their jobs, forcing lawyers to provide significant services at no compensation." This seems like it may be the familiar "two wrongs make a right" argument. 

One comment introduced a modern debate that I have heard at some conferences recently. What of the cost of providing "digitized documents." Paula Unrau noted that digitizing the documents that come into a law firm allows all attorneys ready access to the documents, and makes them more efficient. She notes, though, that "Some firms have even set up an in house service to do this work, listing it as a vendor even though it is owned by and located within the firm." Many businesses are now digitizing all incoming mail for convenience; that is not new. But having a nominally independent business that performs work within the business and charges for services, costs, as an independent vendor?

A cost issue apart from this LinkedIn discussion is working its way through the rule making process at the Florida Department of Health. They are proposing a rule that would allow medical providers to charge $1.00 per page for medical records from many requestors. The Rule is 64B8-10.003 and it limits the charges for "patients and governmental entities," to $1.00 per page for the first 25 pages and $.25 per page thereafter. For all others, it limits costs to $1.00 per page. 

I have heard many people talking about this recently. Many question whether this rule authority would override the specific workers' compensation limit of $.50 per page, see Fla Stat. 440.13(4)(b). It seems logical that statute would prevail over conflicting rule. This statute also limits to "actual direct cost" what can be charged for "other nonpaper records." With the trend towards electronic medical records, this last element of the statute may be critical. 

The proposed 64B8-10.003 does not specifically mention "nonpaper," but may address the digital medical record, stating that for "special kinds of records" the reimbursement would be the "actual cost" which is "the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs associated with such duplication." Are digital, nonpaper, records "special?" Seemingly, we are moving to a time when paper records will be the exception to the rule. We may be there now.

Byron Townsend, a trial lawyer from Tampa, recently took to LinkedIn to alert people to the proposed rule 64B8-10.003. He notes that there will be a public hearing on August 2, 2013. According to the meeting notice this will be in Deerfield Beach. 

An interesting series of cost issues. 

Is it appropriate to charge more for some expense or cost? There is the argument that someone's time is invested in procuring and affixing that stamp to an envelope. That time might be charged as fee, or is it appropriate to "up charge" the stamp a few cents to account for that? A photocopy can be obtained from (major retailer name omitted here) for $.10 per page. Is it appropriate to charge $.25, or even $1.00 for that copy? When a fax machine is used to make a 30 second phone call (local), is it appropriate to charge $1.00 per page for sending or receiving that fax? 

If a set of records is maintained digitally (PDF images on a computer), and someone at the facility merely copies a computer file and emails (or mails a CD) to the requestor, is it appropriate to charge $1.00 or even $.50 per page for the contents of the file? It is possible that such a digital file, which is copied and sent to the requestor in digital form, might contain 100 pages. Should the records provider charge $50.00 to $100.00 for copying and providing that digital file?

Interesting questions all. For your consideration. 

Monday, July 15, 2013

Judges Sue SSA

In April 2013, an association of Social Security Administrative Law Judges (ALJ) filed a Federal lawsuit regarding the agency's expectations of their performance. They complain that the workload in SSA disability hearings is such that each ALJ is expected to adjudicate 700 cases each year. By process of simple math, assuming four weeks of vacation annually, and another two weeks of holidays, this comes out to three decisions per workday (700 divided by about 230 work days).

Due process is what judges do. An opportunity to be heard, a meaningful opportunity, is critical to due process. As budgets shrink, and workload expands, there has been some sympathy from the Courts. In June, the Florida Supreme Court concluded that the workload of public defenders was too extreme. Due process requires meaningful interaction with counsel. Should it require less of judges?

The ALJs complain in their lawsuit that this volume is leading them to expedite their decisions. They complain that the decision volume quotas of the agency prevent them from investing the required time in their complex cases. They note that the filings for disability have increased markedly, up 30% since 2007. They also note that the volume of documentation within each filing is significant, citing an average of 500 pages each. The ALJs argue that the decision process and the high volume of required decisions may lead to more decisions of "disabled." The ALJs argue that drafting a decision in favored of the disability conclusion is more expeditious, and so the high workload, they argue, is likely driving up the determinations in favor of applicants.

The ALJs argue that their independence and discretion are limited by what they describe as quotas and what the SSA labels a "productivity goal." They also argue that applicant's due process rights may be impaired by the effects of the workload.

This situation is of interest because judicial workload is inherently difficult to measure. Within our system at the OJCC, there are a multitude of issues and tasks presented daily. What looks like a simple issue may take days to research and analyze, but a few lines of text in an order to dispose of. We do not have the luxury of the per curium affirmed, with which the appellate courts are blessed (or cursed, depending on your perspective). However, there are many OJCC decisions that amount to little more than "granted" or "denied." The simplicity of the order may not reflect the work required to make the determination though. 

This is intriguing because it is difficult to measure judicial workload. I have struggled with the subject repeatedly. The Florida OJCC has attempted to both quantify workload and to equitably distribute it. This is a challenge. A trial in our setting may entail days of live testimony and an order of a hundred pages or more. Many of us have heard similar cases. A trial may as likely be two depositions, an hour of argument and a three page order that addresses a discreet question such as whether a doctor should be authorized or a wage calculation corrected, or an MRI ordered. Each is a trial, but they are very different in terms of judicial workload. 

We have done our best to define trials. When I took the bench some years ago, I noticed that my predecessor in Pensacola heard many more trials each year than the number of final orders entered. The incongruity confused me. I later learned that he considered more events "trials" than I would. He was not alone. On that foundation, we have tried to formulate definitions. 

The definitions are consistent, if not always completely fair. Any objective measure process will have flaws. Some of the unfairness results from the definitions being relatively strict, a result in turn of those judges who in the past attempted to skew the statistics to meet their own objectives. An example is the judge who would conduct serial trials/conferences and never close the record until that final "status conference" just before the issuance of the order. This judge intended to make the final order, which issued two years after trial began, seem timely. by these multiple status conferences.

The OJCC definitions have helped. The videoteleconference process for redistributing trials has helped. In the end, however, much of judicial workload is beyond equalizing. To some extent that is due to the different processes judges engage to decide and document those decisions. Absolute parity in work load or trial volume is likely not attainable. 

At the end of the day, however, in my experience, anything approaching three trials per week, or 150 per year is a very significant workload, and likely the outer limit of what is an appropriate JCC trial load. 700 per year, or three decisions per workday is simply too many. Such a quota or "productivity goal" will not, can not, lead to reasoned and considered opinions.

Tuesday, July 9, 2013

I am what I am

Popeye was famous for saying "I am what I am." We now struggle with what we are, as a nation we are becoming more obese, more lethargic, and yet more concerned about our diet and health. 

I remember years ago getting my first FWCI Reference Manual at the annual Florida "Comp Convention" (now known as the Workers' Compensation Education Conference, but still "comp camp" to many). I was tasked as a young lawyer with pursuing claims against the Special Disability Trust Fund (SDTF). Long story short, that led me to read the Table of Average Weight of Americans. You see, the law (Fla. Stat. 440.49) says that if someone was "obese," then that obesity condition might be a foundation for an SDTF claim. 

The statute says that if "the employee is 30% or more over the average" in the published table, then they are "obese" by this statutory standard. You can imagine my chagrin when I did the math back then and learned that I was "obese" under this standard. You may also share my joy when I tell you I just calculated it again and find that I am no longer obese (I haven't really improved on the weight issue, but the tables are adjusted for age and so my "average" from the tables has increased in the last 20 years).

Obesity has been in the news lately. In the 1960s about 43% of Americans were "overweight." That has increased to about 54% in the 1990s, according to the National  Bureau of Economic Research. According to a 2003 article, obesity rates in 2003 were about "two times higher" than the 14% figure found in "the early 1970s."  The authors noted in 2003 that "Americans are fatter than medical science recommends, and weights are still increasing." There has been some finger pointing, see my blog on super sized sodas. And there has been much prognosticating about the cause of the obesity trend. 

The 2003 article blames "technological innovations" that have made calorie consumption more convenient. You be the judge. But, according to the latest news, the trend seems to continue, with 35.6% of Americans projected to be overweight or obese in 2013. Another article cites a Duke University study estimating that 42% of us will be obese by 2030. Unlike my handy weight table, the definition now has to do with "body mass index, a ratio of weight to height." I could probably calculate my BMI, but having learned from my reference to the tables that I am no longer "obese," I will refrain from doing math that might contradict that!

Why is this relevant? A couple of interesting articles from the American Medical Association (AMA) convention last month. The American Medical Association Council on Science and Public Health concluded last month that obesity is not a "disease." Their conclusion is that "without a single, clear, authoritative, and widely accepted definition of disease, it is difficult to determine conclusively whether or not obesity is a medical disease state." 

The next day, however, the AMA House of Delegates rejected the Council conclusion and designated obesity "a disease and not simply a condition."  One member explained in a Medpagetoday article "we think that's going to send a message not only to the public but to the physician community that we really need to make it a priority and put it in our cross hairs." The article explains that 60% of the AMA House agreed to the designation, which suggests there is a significant minority with a different view. One dissenter questioned "why should a third of Americans be diagnosed with a disease if they're not necessarily sick?"

The point for workers' compensation is debatable. The Duke study prognosticates that "obesity increases the healing times of fractures, strains and sprains, and complicates surgery." There are some who predict that employer responsibility for treating obesity will be increased by the AMA designation of "disease." There is also discussion of new requirements for reporting such condition, now that it is a "disease." That perspective is here. I find it interesting to consider these perspectives. I am certain that in coming months we will all hear more about obesity, and its new "disease" designation.

The larger issue is probably that we could all use a little more exercise and a little less calorie consumption. I am going to walk down to the corner and get a sandwich (I am not technically obese right now, as far as I know, relying for now on my admittedly outdated tables). After all, "I am what I am."

Sunday, July 7, 2013

Black Robe Disease

Black Robe Disease is a diagnosis sometimes rendered by attorneys, following their examination of a judge. When I was first appointed some years ago, I received a call from a good friend. First came the congratulations, then the warning, "do not succumb to black robe disease." There are many descriptions of this insidious infection. One website lists these as primary symptoms:
Inflated ego and an excessive sense of self-importance
Lack of empathy
Sudden outbursts of rage (whether genuine or exhibited for show)
Refusal to effectively manage scheduling issues
Belief in a double standard when it comes to the judge’s own conduct
Lack of patience with inexperienced lawyers
Hostility towards lawyers more knowledgeable than the judge
Inability to work efficiently
A compulsion to waste the time of others
Imperious attitude
The belief that his or her words are dogma
An obsessive desire to be kissed on the @#$%^&
There may be other lists or descriptions, but this one serves for the discussion I would like to have today. Three of these dovetail into the discussion today: lack of empathy, management of scheduling issues, and a double standard when it comes to the Judge's conduct. 

A lawyer recently told me in passing of a personal experience. Imagine a lawyer having plans, recurrently, to celebrate his only daughter's birthday each year. Imagine having made the commitment when she was born, and thereafter taking a vacation day on each of her special days. The attorney also described a friend who had made a similar commitment to his wedding anniversary each year, and described yet another peer who never worked on her own birthday. 

Each of the examples reminded me what so many attorneys tell me, about seeking some life-balance. Many tell me that they make certain family and community commitments sacrosanct. I know many judges who arrange their schedule around the same kind of commitments. I applaud it on both sides of the bench. Family is important. Each kid has one 7th birthday, and while it may be similar to the 6th or the 8th, this one is the 7th. The same holds true for anniversaries, family events, your siblings weddings, family and friend's funerals, etc.

This life is stressful. Many, perhaps most, attorneys are "type-A" personalities. They are driven, committed, and I know so many who work so hard. I ran into one at a recent educational program, which was on a Saturday. He took time to chat, but then excused himself to "return to the office." Typical. My point is that while work is important, family is more important. I applaud judges and attorneys alike that make family plans and stick to them. Family is critical. Stress will be alleviated by attending that birthday party. Sure putting it on may cause stress, but a different kind of stress than preparing for a deposition. In the end, I can tell you from experience, the kids rarely remember the stress or the mistakes, but they do remember you being there. Like the TV commercial says, "you don't have to be perfect to be a great parent." 

This is where the empathy comes in. The conversation I had with that attorney, describing the recurrent commitments to family, was really about a judge who allegedly, steadfastly, refuses to accommodate attorney's family plans for these dates. This is allegedly true despite motions for continuance being (1) agreed, and (2) filed months in advance, and (3) accompanied by a (in my opinion) senseless volume of proof (certificates to prove the meaningfulness of some date). If true, I can only pity the judge, even though I pity the attorney also.

The conversation reminded me of a funny movie from my youth, Ferris Beuller's Day Off. The hero of the movie (Ferris) has become incredibly adept at skipping high school. So much so, he has attracted the attention of the Principal, Mr. Rooney. Ferris thinks you must stop and smell the roses, he says "life moves pretty fast. If you don't stop and look around once in a while, you could miss it." 

He is right. I took last Friday off and spent it with my family. We worked around the house; I still enjoyed the time. Back to the movie. Having decided one day to skip, Ferris also assists his friend (Sloan) with escaping high school with a fake story about a death in Sloan's family. Ferris is assisted in this by another friend, Cameron, who pretends to be Sloan's father and places a call to Principal Rooney, and a conversation ensues which includes Cameron, Ferris, Mr. Rooney and Mr. Rooney's secretary, Grace: 
Ed Rooney: Ed Rooney.
Cameron: [disguising voice as George Peterson] Ed. This is George Peterson.
Ed Rooney: How are you today, sir?
Cameron: [voice disguised] Well, we've had a bit of bad luck this morning as you may have heard.
Ed Rooney: Yeah I heard, and man, I'm all broken up, boy, what a blow.
Cameron: [disguised] Yeah. Yeah. Well, uh, it's been a tough morning and we got a lot of family business to take care of, so if you wouldn't mind excusing Sloane, I'd appreciate it.
Ed Rooney: Uh, yeah, sure, no I'd be happy to, yeah you, uh, you just produce a corpse, and uh, I'll release Sloane. I wanna see this dead grandmother first hand. (Emphasis added).
Grace: Ed?
Ed Rooney: It's alright, Grace, it's Ferris Bueller the little twerp. I'm gonna set a trap and let him fall right in it.
Grace: Ooh!
Cameron: [disguised] I'm sorry, Ed, did you say you wanted to see a body?
Ed Rooney: Yeah, that's right, just, uh, roll her old bones on over here, and I'll dig up your daughter. You know that's school policy. (Emphasis added).
Cameron: [disguised] Oh.
Ed Rooney: Was this your mother?
Cameron: [disguised] Uh, no my wife's mother.
Grace: [picks up ringing phone] Ed Rooney's office.
Ferris: Hi this is Ferris Bueller, can I speak to Mr. Rooney please? Thank you.
Grace: [caught off-guard] Uh... hold.
Ed Rooney: Tell ya what, dipshit. If you don't like my policies you can come on down here and smooch my big ole' white butt.
Grace: ED!
Ed Rooney: Pucker up butter-cup.
[to Grace]
Ed Rooney: What?
Grace: Ferris Bueller's on line 2 (hearing this, the look on Principal Rooney's face changes and his shock is apparent).
In this instance, the decision-maker is tricked. Convinced he is speaking to Ferris, he makes statements that are simply unconscionable. Having learned Ferris is on the "other line," Mr. Rooney retreats and agrees to release Sloan from school for the day. We all cheer for Ferris (star of the movie after all), and he gets away with it. Mr. Rooney is right, but he comes across as absurd. Can you imagine a high school principal saying "you just produce a corpse?" Absurd. 

Is asking for certificates to prove important dates any less absurd? Perhaps if the continuance motion is filed the day or week before (I forget many things, but I do not forget my kid's birthdays) then one might be suspicious. When an attorney files an agreed motion, months in advance, immediately after receiving notice, and expressing a need to move a trial a few days to accommodate a family matter, how can one be suspicious of, or deny, that? More importantly, how can we as judges fault attorneys for making commitments to family? As important (empathy), I think most judges plan to accommodate such life events in their own families. Are attorney's special occasions not worthy of the same respect?

I would hope that they are. I would hope that sitting on this side of the bench does not cause us to forget what it is like on the other side. I would hope we would show people respect, empathize, and facilitate their participation in important family events and celebrations, even if it means moving a trial a few days down the calendar on an agreed motion. I would like to know what you think, email me, david.langham@doah.state.fl.us,

Wednesday, July 3, 2013

Baseball, Hot Dogs, Apple Pie and Chevrolet.

Back in 1975, a television commercial introduced us to a memorable jingle about America, and what is American, "baseball, hot dogs, apple pie and Chevrolet." If you don't remember the ad campaign, it is on YouTube, like so much else. 

The ad begins with "in the years that I've been living, a lot things have sure been changing." This is to bring our perspective to how things are, and to prepare us for the reminiscence to come. The ad laments that things have come and gone, and then asserts that some things never change, such as "baseball, hot dogs, apple pie and Chevrolet." It was a catchy ad. 

That tag line and jingle became very popular. Some in the advertising field opine that it was among Chevrolet's very best ad campaigns ever. Change is hard for everyone, and being reminded of constants in our lives can be comforting. But are they really constants?

We came close to losing Chevrolet a few years back. The General Motors that many considered "to big to fail" actually failed. Chevrolet survived as part of the new GM that emerged from bankruptcy. The new Chevrolet is showing strength in the marketplace

Interestingly, the 1975 Chevrolet ad features the Chevette and Monza, two models that struggled for acceptance by the public, much like the Ford Pinto. Essentially, we were being asked in 1975 to accept a new "normal" for automobiles, and American manufacturers were being driven to smaller vehicles by the public's perceptions of imported cars and pocketbook issues resulting from rising gas prices. Two examples of market influences changing our economic environment. 

Baseball is perceived to be an American constant. However, there have been some stories in the news recently about less than encouraging attendance in some stadiums around the country. Twenty-one of thirty teams had decreased attendance in 2013 compared to 2012. The overall attendance decrease was 1,455,682, about -4%.

I got started on this thought process when I recently read that sales of the great American hot dog are declining. As an aside, July is National Hot Dog month. According to one industry association, "people eat 8 billion hot dogs in the U.S. between Memorial Day and Labor Day—150 million of those on the Fourth of July alone." Will you be grilling some dogs tomorrow? Despite those figures, hot dog sales are down in America for each of the last three years according to Bloombergs. The decline last year alone was three percent. The decline is not industry-wide. One manufacturer, Nathan’s Famous, reports sales up 17% by comparison. 

The question to which this all leads is why. I realize we haven't touched on apple pie, but these three iconic elements of the 1975 jingle are all demonstrating change. An increasing demand for Chevrolet and decreasing demand for baseball and hot dogs. 

One explanation offered for the decrease in hot dog sales is that the American palate is broadening, that is there are more choices in the food market. A food journalist quoted by Bloomberg says “I would be willing to bet that more Americans, and especially younger Americans, now eat nachos or tacos than hot dogs.” He predicts continued decline in hot dog sales. It may be that greater choices in spectator sporting is likewise contributing to baseball's woes. 

The point is this, change is part of our lives. While we may find comfort in the way things were, or our perceptions of the way things have always been, the truth is that there are few constants in the world, and our industry. Despite the jingle's reassurance, even iconic elements of Americana change. The Florida OJCC has been a champion of change in the first decade of the Twenty-first Century, and more change is coming.

We started our new fiscal year on July 1. It is a natural time to reflect on the changes of the past year and focus on our future plans. Last year we implemented the OJCC data interchange with Department of Revenue (DOR), and changed a large part of distributing child support arrearage data. We also implemented e-service on carriers and third party administrators, which involved revising our e-filing program and cleaning a tremendous volume of data in our database. Both are conveniences to attorneys and others in the dispute adjudication process in Florida.

We are working now to consolidate our access to child support data maintained by the various Circuit and County clerks throughout the state. We have high hopes that we will soon be in a position to provide the workers' compensation market with "one-stop shopping" for child support arrearage data. This will mean the data for both DOR and the Clerks will be available through your local OJCC office. A real game-changer, resulting in significant cost and time savings for the  marketplace. 

Change is all around us. Perhaps we cannot prevent change, but as likely we can control how we each react to it. Baseball teams and hot dog manufacturers might be well served to ask their customers the question I am asking you. That is, how can the OJCC serve you better in the next year? Please email your suggestions, ideas, and criticism to me, david.langham@doah.state.fl.us. We look forward to a productive and progressive 2014, let me know how are efforts could be better focused to bring you value. 

Monday, July 1, 2013

The Attorney Client Privilege

About a year ago, the Texas Supreme Court issued an interesting opinion. It is titled In Re XL Specialty Insurance Co. It is here
http://www.supreme.courts.state.tx.us/historical/2012/jun/100960.pdf. I was reminded of it when I read the Florida First District Court of Appeal decision in Lacaretta Restaurant v. Zepeda, Case 1D13-0993, which is here

Both interesting cases, each about an aspect of the attorney client privilege. In Zepeda, there was a discovery request, an objection, two hearings and an order compelling production of certain notations from the carrier's claims file. The employer/carrier had objected to this production on the basis of privilege. The Court opinion noted that the appellate challenge focused upon two of those notes: "the first note made by the adjuster to memorialize a meeting with in-house counsel, and the second note made by in-house counsel herself." The Court agreed with the E/C that these two were privileged and quashed the order compelling production of them. This opinion is recommended reading for the basic explanation of when a certiorari writ is appropriate. The Court concluded that these two notes were privileged, "because both clearly constitute or memorialize communication from the attorney to the E/C made in the rendition of legal services." The Court noted that production of the notes "would have a chilling effect on communications between attorneys and clients."

The Texas case, In re XL, is more involved. It illustrates a notable distinction between Florida and Texas in workers' compensation. There, the pending action was not for workers' compensation benefits, but for damages for bad faith from the WC insurance carrier. The plaintiff sought communications between the "insurer’s lawyer and the employer during the underlying administrative (WC) proceedings." Notably, the employer was self-insured for a portion of the workers' compensation benefits through a: "a one million dollar deductible per claim."

During the claimant's litigation of the underlying claim for workers' compensation benefits, the carrier hired an attorney. Their counsel, Rebecca Strandwitz, provided "communications about the status and the evaluation of the WC proceedings to" the employer and carrier. After Claimant prevailed in the comp claim, he sued for violations of the TX insurance code and deceptive practices statute. There, in discovery, he sought the communications between Strandwitz and the employer, which the employer protested citing privilege. The trial court ordered production, and the carrier sought relief by mandamus.

The Texas Court recognized that the attorney/client privilege is rooted in the jurisprudence of Texas. Noting the purpose of this privilege and citing numerous authorities, the Court provides an interesting illustration of the need for such a protection. The Court's discussion includes reference to various privilege codifications in Texas, and specifically focuses upon the "'joint client' privilege, the 'joint defense' privilege, and the 'common interest' privilege." The Court defines and discussed each of these and concluded that none applied to these facts.

The Court conceded that "under certain circumstances, communications between an insurer and its insured may be shielded from discovery by the attorney–client privilege. That appears to be the majority rule." However, their conclusion is that the Texas evidence code must be demonstrated to provide a privilege, which they held XL failed to demonstrate/prove in this instance.

The Court recognized that the employer's deductible made them interested in the outcome of the compensation case. But, held that the Texas rule "requires that the communication be made to a lawyer or her representative representing another party in a pending action." Noting that Texas compensation claims are against the carrier, "with limited involvement of the employer in the adjudication of the rights to benefits," the Court concluded that an employer is not a party to the workers' compensation proceedings. The opinion explains that an employer/carrier could be joint clients, but that they were not in these comp proceedings.

Both cases are worthwhile reading for workers' compensation practitioners. Certainly, the Florida evidence code is not consistent with Texas' code. However, careful counsel will be aware of the distinction and the fact that exceptions exist to the "majority rule." Careful practitioners will want to be sure that they know what communications are privileged, and which might be subject to disclosure in either underlying or subsequent proceedings.