Monday, March 31, 2014

Effective Depositions

There have been rumors lately about delays in litigation related to the inability of counsel to obtain the expert testimony that they require. Some have expressed that they believe some element of this difficulty is related to the manner in which attorneys behave during depositions, and a resulting reluctance of physicians to sit for depositions, or a practice of limiting the time afforded for such depositions. 

There is likely a physician out there somewhere who enjoys providing deposition testimony in cases. I have not met her or him however. From my interaction with physicians, I perceive that they attend medical school to treat people and relieve their symptoms. They seem singularly uninterested in the processes of litigation. The deposition process is at best a necessary evil in their eyes. 

I hear this feedback about continuances requested due to the inability to obtain, or at least complete, depositions. Then recently I heard of a physician deposition that consumed almost five hours of attorney and doctor time. Five hours. I was surprised by that. I immediately envisioned one of those industrial exposure claims with multiple chemical compositions, a variety of individual exposures, and a spectrum of diagnostic testing over a long period, resulting in volumes of documents and records which had to be reviewed by the parties with the expert. 

I was mistaken. It turns out this deposition revolved around the fact that two orthopedic physicians had rendered contradictory opinions. In terms of Florida workers' compensation, that is just not uncommon. There were apparently some diagnostic tests involved, but they were the expected x-rays, magnetic resonance imaging (MRI), and such that are part of virtually all of the variety of orthopedic claims in our workers' compensation system. There were not years of medical records to review, which sometimes occurs, and which necessitate review and discussion. 

In a basic physician versus physician disagreement, five hours invested in deposing an orthopedic surgeon. I cannot recall one time spending five hours in an expert deposition. Certainly, such an investment may be required in some exceptional circumstance. However, exceptional is the key word. 

Why would attorneys engage in the extent and repetition of examination or cross examination that results in such a extensive record? Time is  money, and that is true for the attorneys, the doctor, the court reporter an more. What is the motivation?

As I have heard stories of contumacious counsel, I have heard various suggestions for such behavior. Some suggest that they are not competent. Others suggest that they seek to discourage a particular physician from being involved in that attorney's cases, now and in the future. Still others suggest that with litigation volumes down, there are those who seek to maximize their time on cases in which they perceive good odds of hourly claimant's fees on one hand or the venerable defense "billable hours" on the other. There may be other explanations. The "why," though is not the critical question.

The "why" would be interesting to know. As interesting, however, would be whether counsel cares how they paint themselves in such behavior. Is the fallacy of such behavior lost on the reader?  A good deposition provides a logical progression that explains the situation to the reader. A good deposition focuses the reader (the judge) on the heart of the dispute. A good deposition is a road map leading the judge to the result which counsel seeks. 

If counsel submit War and Peace for consideration, it is the judge's obligation to read it and consider it. If counsel submits such a volume however, they risk that critical facts will be so buried in the text, that they may be missed, misconstrued, or lost in the forest. Litigators are often provided with the forest in litigation, their goal cannot be to merely present the forest, it has to be focusing the finder of fact onto the trees that are relevant, sorting them from the forest. 

There are various attributions for the following. I have not found a definitive source. But it says much. "A story is told about FDR when he was a young lawyer. He heard his opponent summarize a case before the jury in eloquent, emotional, but lengthy appeal. Sensing the jury was restless, FDR is reported to have said, 'You have heard the evidence. You have also listened to a brilliant orator. If you believe him, and disbelieve the evidence, you will decide in his favor. That's all I have to say.' He won. Overstate and bore. Understate and score. When a baseball umpire says, 'Strike three!' he doesn't have to add 'Yer out.' That's what strike three means." Essentially, get to the point, make it, and move on.

This is a profession. In it, attorneys need to focus on being professional. Do what needs to be done, and do it efficiently. Certainly take the deposition and ask the relevant questions. Be effective for your client, focusing the dispute for the finder of fact. In the process, be polite, don't waste your time, opposing counsel's, or the deponent's. In the process, you will produce a concise written record to submit to the judge, and you will make your point, without wasting the judge's time sorting through War and Peace. 

A wise attorney once told me that you should know the answer to every question you ask, and more importantly, there should be a reason for every question you ask. Prepare, focus, respect everyone's time and be professional.

Wednesday, March 26, 2014

Temporary Trial Coverage in Miami

The MIA district has been one judge short for the last several months. As a result of that absence, other judges have been covering trials in Judge Castiello's division. I understand that this has been frustrating to some practitioners, as they have learned the identity of the judge who would hear their trial only shortly before trial and some pretrial procedural decisions have been made by a judge other than the one that ultimately hears the trial. We are therefore instituting a new trial coverage process effective immediately.

Until further notice, all active GCC division cases in District MIA will be overseen by the following judges: 

Judge Almeyda - All case numbers beginning with “14-“

Judge Medina-Shore - All case numbers not beginning with “14-“ and ending in either “1” or “2”

Judge Kerr - All case numbers not beginning with “14-“ and ending in either “3” or “4”

Judge Rosen - All case numbers not beginning with “14-“ and ending in either “5” or “6”

Judge Massey - All case numbers not beginning with “14-“ and ending in either “7” or “8”

Judge Charles Hill -  All case numbers not beginning with “14-“ and ending in either “9” or “0”

This will hopefully provide practitioners with more predictability regarding their upcoming trials. 

In situations where more than one case number is currently active for a particular injured worker, the judge handling the combination of the multiple cases is based upon the last digit of the lowest of the Claimant's active case numbers. For example, if a Claimant has case number 13-xxxxx5 and 12-xxxxx9, the case would be handled by Judge Hill because the lower case number ends in "9."

Please direct any questions or concerns you have to Judge Medina-Shore, Administrative Judge for the MIA district or to Judge Langham. I appreciate your assistance and patience during Judge Castiello's absence.

Zohydro - More Opposition

In March, the manufacturer began distributing Zohydro, a new and powerful opiod painkiller. 

In December, 29 State Attorneys General sent a letter to Dr. Hamburg, Commissioner of the Food and Drug Administration (Zohydro in the News Again). They asked that the FDA reconsider its approval of Zohydro, an opiod painkiller that is reportedly five to ten times more powerful than those already on the market. Those Attorneys General signatories were:

Pamela Bondi, Florida (R)
Jack Conway, Kentucky (D)
Tom Horne, Arizona (R)
George Jepsen, Connecticut (D)
Lenny Rapadas, Guam (NPA)
Lisa Madigan, Illinois (D)
Tom Miller, Iowa (D)
Douglas Gansler, Maryland (D)
Bill Schuettem Michigan (R)
Samuel Olens, Georgia (R)
Michael Geraghy, Alaska (R)
Dustin McDaniel, Arkansas (D)
Joseph Biden, Delaware (D)
David Louie, Hawaii (D)
Greg Zoeller, Indiana (R)
Janet Mills, Maine (D)
Martha Coakley, Massachusetts (D)
Jim Hood, Mississippi (D)
Catherine Masto, Nevada (D)
Roy Cooper, North Carolina (D)
Kathleen Kane, Pennsylvania (D)
Marty Jackley, South Dakota (R)
Brian Tarbet, Utah (R)
Robert Ferguson, Washington (D)
Joseph Foster, New Hampshire (D)
Ellen Roseblum, Oregon (D)
Peter Kilmartin, Rhode Island (D)
Robert Cooper, Tennessee (D)
William Sorrell, Vermont (D)

On March 18, 2014, New York Attorney General Eric Schneiderman (D) Wrote his own letter. He expresses similar concerns. He refers to Zohydro as "heroin in a pill," and said "It's simply irresponsible to manufacture Zohydro without abuse-deterrent formulas, and I am calling on the federal government to reverse this decision." He went on to say that Zohydro is "one of the strongest and most dangerous opiods on the market."

Meanwhile, in Washington, two Representatives are proposing a legislative correction for the FDA decision. Representatives Stephen Lynch (D) and Hal Rogers (R) have introduced "the Act to Ban Zohydro." The bill reportedly has 11 co-sponsors. There is also a similar Senate bill sponsored by Joe Manchin (D). According to the Representatives, "approving Zohydro ER without an abuse deterrent formulation puts our nation's public health at a great risk due to the high likelihood for abuse." 

They note that a prescription drug overdose death occurs in America every 16 minutes, and opiod drugs were involved in 3 of 4 drug deaths in 2010. They suggest that the approval of Zohydro by the FDA was "a giant step backwards at a critical time when prescription drug abuse has fast become a rampant problem across the nation."

So, thirty state's top law enforcement officials are asking for reconsideration of the approval. The U.S. Congress has begun efforts to legislate over the FDA decision to approve Zohydro (which approval came despite the recommendation against approval of the FDA's own advisory panel). There seems to be significant bipartisan opposition to the marketing of "heroin in a pill."

Where will this debate conclude?

Monday, March 24, 2014

Fee Schedules, Reimbursements, and Medical Necessity

On February 26, 2014 David DePaolo blogged of “A Grand Opportunity.” He says that “The Drobot/Pacific Hospital/Calderon case is the single biggest opportunity to combat fraud in CA work comp ever.”

The first week of March on WorkersCompensation.com, Bob Wilson asked “In California BribeScandal, Where Were the Applicant’s Attorneys?

Both are interesting, as are a variety of other perspectives being presented out there in the worker’s compensation community. 

The news media is questioning the cost of medical care, and the necessity of medical procedures. Medical Fees Out of Whack highlights some of those questions. Last October, there was discussion in the Florida Press about spinal fusions at one hospital. Federico Vinas is a surgeon in Daytona Beach. TheWashington Post noted that he was performing a significant volume of spinal fusions. 

The hospital hired a company to review the medical necessity of his procedures in 2010.  This concluded that 9 of 10 fusions reviewed were not medically necessary. The Hospital then performed an internal evaluation and concluded that all of the surgeries were in fact medically necessary. There is a notable disparity between the conclusion that 90% were not necessary and the conclusion that all were in fact necessary. Why this disparity?

In March, the Orlando Sentinel reported that a whistle-blower case is underway in Federal Court regarding illegal kickbacks to physicians, and performance of unnecessary procedures. They say that this may involve almost a billion dollars, "the largest Medicare fraud case of its kind." The trial has been bifurcated, with the first segment focused on the hospital's payments to cancer physicians and neurosurgeons. 

While these allegations are not about workers' compensation care specifically, the overall implication of improper compensation for doctors performing care could impact cases beyond the Medicare arena. Just prior to jury selection, the hospital entered into a settlement with the U.S. Department of Justice, which had joined the whistle-blower in prosecuting this case. According to the Department of Justice, the Hospital will pay the government $85 Million. The DOJ noted "financial arrangements that compensate physicians for referrals encourage physicians to make decisions based on financial gain rather than  patient needs."

Currently, the Florida legislature is considering legislation to overhaul the way hospitals are reimbursed for workers' compensation care. Workers' compensation reimbursement for hospital care in Florida is significantly higher than Medicare reimbursement. Senate Bill 1580 would limit hospitals to 140% of Medicare charges for care provided in workers' compensation cases. 

Is legislative change in the hospital reimbursement arena necessary for Florida? Is the reimbursement schedule the problem, or should the question be is the reimbursement schedule the whole problem? Are their broader concerns about the delivery of medical care?

The coming weeks will reveal whether fee schedule reform has any momentum in the current legislative session. The outcome of the Orlando trial regarding Medicare may bring some clarity as to the practice of incentive pay for physicians in that market. 

Mr. DePaolo suggests in California that the Drobot case brings an opportunity for re-evaluation of medical care delivery there. Bob Wilson questions why questions were not asked sooner. Will Florida face similar questions in the months to come?

Wednesday, March 19, 2014

What do the latest current statistics tell us?

What do the current statistics tell us?

Statistics are often derided. Are they meaningful, worth the time? 

Mark Twain said "facts are stubborn, but statistics are more pliable." He also said that "there are lies, damned lies and statistics." I will leave the value of statistics to others. It is that time of year when people ask what the filing volumes look like for the fiscal year. Generally, they precede the question with either lamentation or exultation that their own volumes are down or up as the case may be and seek some comparison with the system as a whole. 

Late last month, we gathered for an educational conference in Tallahassee.  During the course of the day, several people asked me what the filing volumes look like. I try to keep these current on a quarterly basis. So, imagine my surprise when I updated them in early March and found I had not done so since the beginning of the fiscal year last July 1.

The numbers are interesting. New cases refers to the volume of PFBs filed, which represent the first PFB in the history of that particular accident by that particular injured worker. New case filings peaked in 2002-03 (we have maintained statistics on this only since the DOAH era began in 2001-02) at 56,869. Since then, new cases have declined every year. Ten consecutive years of decreases in new cases. 

The trend for 2014 (July 1, 2013 through June 30, 2014) is supporting that this ten year trend will be broken in 2014. The trend is supporting an increase in new cases this year, currently an increase of about 5%. The new case volume could be back to 2011 volumes by year's end, if the trend continues. The 2014 new case volume increases overall were significantly driven by strong new case filings in August (+7%), September (+10%), and October (+6%)

Each case might involve no petitions (PFB) or several. The "no petition" cases are those opened for litigation of discovery disputes (although those frequently later involve a PFB) or cases opened for consideration of a settlement motion. Over the last ten years, the PFB filing volume has decreased more significantly than the new case volume. The new case trend has been down, but usually in a less marked fluctuation than the PFB trends. 

PFB trends for FY 2014 are also up from 2013. However, the increase is closer to 3%. The total projected may be increased compared to 2013, but if the trend remains consistent are not projected to approach the 2012 total of 61,345. The current PFB filing increase (almost 3%)  results in large part to significantly strong filings in November (+8%) and December (+8%) 2013

As we approach the end of FY 2014, the final four months of the year (March, April, May, June) may support these projections. FY 2014 could be the first increase in new cases in ten years. It could be the first significant increase in PFB filings, there was a minimal increase in PFB filings in 2008-09, following the Supreme Court ruling in Murray

Why are filings indicating increase? I leave that prognostication to others. Some will suggest that it is an improving economy generally, others will point to increased construction specifically, while others will point to litigation trends. Whether one of these or something else entirely, that conclusion is for you, the reader.  

Monday, March 17, 2014

E-Filing Landmarks

Billy Preston immortalized the lyric Nothin' From Nothin' Leaves Nothin' back in 1974. In the spirit of the U.S. Postal Service and their never-ending quest to price the postage stamp out of existence, I thought we might double the charge for e-filing this year. That lyric would be Nothin' Times Two is Still Nothin'. As you know, the e-JCC e-filing and e-service platforms have been provided to the marketplace for "Nothin'."

Talk about value for your money, the returns on this Nothin' have been significant. Through the end of February 2014, the e-JCC e-filing program had saved users (that's you) at least $1,911,791.76. Yes, almost $2 Million. Over 2.5 million documents have been e-filed since that fateful day back on November 29, 2005 when M. Todd Merritt (M Todd Merritt P.A.) filed the first e-JCC document, followed the next morning when K. Kay Dodd (Miller, Kagan, Rodriguez & Silver) filed the second. The rest, as they say, is history!

I remember the enthusiastic adoption of e-filing. Sure, a couple of you said it would never fly, but most of the feedback was enthusiastic and it was gratifying to see people jump on the bandwagon in those early years. 

In 2012-13, along came e-service. About 6 years after we started e-filing, this was a major innovation. In 2012-13, we had 58,041 PFB filed. Each of those that was served on the carrier by e-service, saved the attorneys at least $3.12 in Certified Mail, a total of $181,087.92.  We had 40,791 Responses to PFB filed, saving the carriers $127,267.92 in Certified Mail. The first year it was offered, e-service saved the marketplace about $308,355.84 just on PFB and Response Postage.

Conservatively estimating that each case involved each side filing a motion, a notice and a request (so two of each of these at $.45 each in postage), e-service saved the marketplace another $156,710.70 on the discovery and pleading filings. 

Conservatively, e-service is saving the marketplace about $465,066.54 annually in postage, for documents parties would have sent each other by mail. E-filing is saving the marketplace about $407,704.30 annually in postage that would have been spent sending paper to the OJCC in Tallahassee. Conservatively, e-filing and e-service together are saving you, the users, almost $1 Million per year on postage. The time and effort savings are significant as well.  

This does not account for the simplicity and savings brought to you by the change in the child support information process, but that is for another day.

And the cost to you of all this savings? You guessed it, Nothin'. 

Wednesday, March 12, 2014

Oops! What do you Mean She was not Pregnant?

There was a story reported in mid-December of a 37 year old Brazilian who underwent an emergency cesarean section in Brazil. The only problem was that she was not pregnant. She reported to the hospital complaining of pain and told doctors she was 41 weeks along. Relying on complaints of nausea, and the visual perception of enlarged abdomen, the physicians concluded she was pregnant. As they could not hear the baby's heartbeat, they concluded the child was in distress and elected to perform surgery.

What is wrong with this picture? First, admittedly there are no details provided as to how sophisticated the facility at which this occurred. Possibly surgery was the only tool at their disposal when they could not find a heartbeat. The urgency may not have afforded much time for reflection or investigation, regardless of the facility's resources. However, it is a headline that grabs attention and leads back to questions about surgery.

According to MSN "tens of thousands of patients annually submit to costly operations that could be avoided." This assertion emanates from a USA Today article resulting from a review of government records and medical databases. They concluded that "10% to 20% of all surgeries in some specialties" may be unnecessary.
Among USA Today's conclusions were angioplasty, pacemaker, spinal fusion, and colonoscopies. The article concluded that "70% of hysterectomies were inappropriately recommended, often because doctors didn't attempt treatment with non-surgical procedures." The authors broke these procedures "into three groups: the immoral, the incompetent and the indifferent."

A New York Times investigation cited by The Washington Post concluded that unnecessary procedures are performed. They suggest that "doctors may have performed unnecessary procedures because there was a financial incentive to do so." Because physicians are "paid for each service they provide," the more procedures, the higher the salary. They conclude that 78% of health plans pay the physician on a "fee-for-service model" that is consistent with the maxim of more procedures equating to more income.

The USA Today article recommends that patients should question surgical recommendations, ask for non-surgical options, and seek a second opinion. It is ultimately the patient who deals with the trauma of surgery, and the rehabilitation and recovery that follows. It is therefore ultimately the patient that should ask these questions about recommended treatments. Whether the doctor is inclined to surgery by habit, comfort level, or incentives, it is the patient's ultimate responsibility to look out for her or his best interests, ask questions, and make sound decisions.

Monday, March 10, 2014

On Comet, On Cupid, on Donner, on DOAH


What on earth does that mean, is DOAH one of the reindeer?

I hear this all the time, and see it referenced in pleadings. There seems to be some relevance assigned by attorneys to whether something is or is not "on DOAH."

DOAH is the Division of Administrative Hearings, a state agency in Tallahassee. Since 2001, the Florida Office of Judges of Compensation Claims ("OJCC") has been a part of the DOAH. Both the OJCC and the DOAH have embraced the digital world and have pioneered electronic filing. Each has a web presence, which are similar, but are distinct. 

The DOAH website is http://www.doah.state.fl.us/ALJ/
The DOAH has an electronic filing service that is accessible from their web presence, it is called "eALJ," a reference to the fact that administrative hearings assigned to the DOAH are heard and determined by Administrative Law Judges ("ALJ"). 

The OJCC website is http://www.fljcc.org/jcc/
The OJCC website has an electronic filing service that is accessible from our web presence, it is called "eJCC," a similar reference to the fact that the disputes regarding Florida workers' compensation benefits are heard and determined by Judges of Compensation Claims ("JCC"). 

When something is electronically filed with the Administrative Law Judges, regarding some central panel dispute that is part of the DOAH ALJ jurisdiction, you would file that on http://www.doah.state.fl.us/ALJ/ and you might cogently assert that you have "filed" something "on DOAH," as that is the root of the name of that website. 

When something is electronically filed with the OJCC, you are not communicating clearly or descriptively if you tell someone your filing is "on DOAH." You are, instead, miscommunicating. In either instance, the more effective description would be to state that the filing is "in the OJCC case docket" or "in the DOAH case docket." 

What does "on DOAH" mean? It doesn't mean anything, it describes nothing effectively, and is prone to confusion. It would be helpful if its use was discontinued. 

Wednesday, March 5, 2014

Its Déjà Vu All Over Again

Zohydro is in the news yet again. This month the new medication will become available. Its manufacturer says it will market this only to a select few physicians whose experience with pain will assure their discretion and restraint in distributing this strong pain killer. 

In November, I noted the approval of this new Opiod formulation, and in December, I wrote when over half the nation’s attorneys general wrote to the FDA urging that the approval receive greater scrutiny and perhaps reconsideration (Zohydro in the News Again).

Well, as Yogi Bera once said “its déjà vu all over again.” Zohydro is back in the news at the end of February. Now, an “activist” group is questioning the Food and Drug Administration (FDA)and has released a letter it sent to the FDA in late February. The group is called “Fed Up!” and their points are interesting. 

They note that Zohydro is being marketed in the “midst of a severe drug addiction epidemic.” They note that Zohydro “will kill people as soon as it is released.” Dr. Andrew Kolodny calls it “a whopping dose of hydrocodone packed in a an easy-to-crush capsule.” Drug overdoses killed 38,329 Americans in 2010. The eleventh straight year in which a new record was set. People are dying, more each year. 

Other Zohydro criticisms are focused on the strength of the new formulation. They note that it is about 10 times stronger than Vicodin. They note that a two capsule Zohydro overdose may be fatal, and that one pill could be fatal to a child. 

The manufacturer claims that Zohydro is safer than other opiods because it does not contain the acetaminophen (commonly referred to as Tylenol) that has been linked to liver damage. Some opium pain killers (Vicodin, Vicodin ES, Vicodin HP, Anexsia, Lortab, Lorcet, Lorcet Plus, Norco, Zydone) are composites that include Tylenol. The Zohydro pill that is 10 times stronger than Vicodin, easily crushed to speed absorption, and free of any anti-addictive precautions is safer for the public because it does not contain Tylenol? The Zohydro which could be fatal to a child in a single dose is safer for the public because it does not contain Tylenol?

The manufacturer, Zogenix, disputes the contention that Zohydro is up to 10 times more powerful than existing formulations of opium. They also contend that within three years a version of Zohydro will be available with the "abuse deterrent formulation," that is the anti-addictive efforts common today in other opiods. With anti-addictive measures and anti -abuse measures on existing opiods are dying. For three years, Zohydro will be on the market without such precautions, while drug deaths continue?

Medpagetoday.com recently ran an online survey, asking if "Zohydro approval (was) the most dangerous decision the FDA has ever made?" On Tuesday, the response was about 60% "yes."

"Fed Up" is not alone. On March 3, 2014, Senator Charles Schumer joined the chorus. "It is baffling that at the same time policymakers and law enforcement officials are waging a war on the growing prescription drug crisis, we are essentially rolling out the welcome mat to a new, more powerful, and easily abused super-drug," Schumer said in a statement, according to medpagetoday

He is the third U.S. Senator in a week to weigh-in against the approval of Zohydro. In February, Senators Joe Manchin (D-W.Va.) and David Vitter (R-La.) voiced concerns in a letter to a medical school that is tied to the approval process

So, to recap, the Food and Drug Administration had Zohydro evaluated by its own team of experts. That team recommended against approval. The FDA overruled its own team and approved the drug. It will enter the market without anti-addictive and anti-abuse precautions common to other opiods. 

Deaths from opiods have increased dramatically over the first decade of the Twenty-First Century. Opiods are a problem in this country. They are destroying and ending lives. The government that is supposed to protect people has overruled its own team of experts and approved Zohydro. Unless the calls of "Fed Up," the various states' attorneys general, these Senators, and a variety of news outlets are answered, Zohydro becomes a reality in the marketplace in March. 

Time will tell if it is as dangerous as critics assert.

Monday, March 3, 2014

The Supreme Court Takes a Professionalism Stand

The Florida Supreme Court recently delivered a public reprimand in The Florida Bar v. Jeffrey Alan Norkin, Case No. SC 11-1356. There are those who contend that this case is significant, and others who disagree. The Miami New Times questioned "Is Jeffrey Norkin Florida's Most Obnoxious Lawyer? The State Supreme Court Seems to Think So."

You may find this case interesting reading. There are Rules Regulating The Florida Bar. Many of us studied them back in the day before we took the "ethics bar," which is officially called the Multistate Professional Responsibility Examination or MPRE. Those rules and that test are about ethics, rules, and behavior. One might act within those rules and yet not be courteous or professional. 

There has been a trend to address something larger than ethics, something called "professionalism." Florida has tried to lead in this effort. There have been numerous noteworthy achievements. The Bar established a professionalism center. The Court has adopted an amendment to oath of admission to remind attorneys of professionalism. There have been innumerable continuing education hours focused on professionalism. These efforts are detailed on page 24 of the Court's opinion. The Court's references to professionalism efforts are interesting. 

But the efforts have not been enough. We can argue about whether any volume of consciousness raising or education or reminders will ever be enough for some sub-segment of our Bar. Perhaps that is not the point, but instead we need to be concerned with what volume of education and reminders will be enough for the vast majority of our Bar. Perhaps there will always be some minority for whom only the stick will be successful.

The Court in this instance seems willing to apply that stick when the circumstances are sufficient. 

In this case, the investigation revealed a pattern of combative behavior. Mr. Norkin threatened legal action against a Mr. Tobin, a senior Judge appointed by the court to act as a provisional director of the company involved in litigation in which Mr. Norkin represented a party. He accused Mr. Tobin of conspiracy, and "berated" him.

The presiding judge noted that Mr. Norkin came in "like a bull in a china shop," and "consistently" screamed during proceedings. The Court noted that "eventually" the judge recused himself, but that Mr. Norkin "continued his unprofessional behavior" before the next judge assigned. The Court quoted transcripts of proceedings before the second judge in which she instructed Mr. Norkin "don't yell at me," and noted that he would "yell at me every time we have a hearing." Eventually, the second judge in frustration said "oh my god, I'm done. Good Bye. Not doing this. Not going to be questioned by you."

Mr. Norkin explained to the referee that his voice is "naturally loud." The referree concluded the explanation was "patently unvelievable" and that other explanations of events offered by Mr. Norkin were "implausible." 

The Florida Bar referee concluded the investigation and recommended a 90 day suspension and that Mr. Norkin pay the costs associated with the investigation. Of course, the recommendations to the Court are precisely that, the Court is not bound.

The Court noted that is "crucial to recognize the Court and The Florida Bar have been advocating professionalism and civility for over 20 years." The Court noted that it is "profoundly concerned with the lack of civility and professionalism demonstrated by some Bar members." It noted that Mr. Norkin's behavior demonstrated in this case continued "despite repeated warnings from judges." The Court cited the Rules Regulating The Florida Bar, and it concluded "this profession cannot tolerate such behavior" as demonstrated in this case. 

The Court noted that "competent, zealous representation is required" when representing a client. However, that "screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him are not among the types of acceptable conduct, but are entirely unacceptable. It concluded Mr. Norkin's "unprofessional conduct is an embarrassment to all members of The Florida Bar."

The Court rejected the referee's recommended punishment (90 day suspension) and instead imposed "a two year suspension," and a public reprimand by the Court. That reprimand was delivered in February. 

Is professionalism important? I think so. I am also inclined to believe that I am not alone. I meet so many zealous advocates and fine attorneys out there practicing in our offices. I have rarely had to issue an instruction to remind counsel of their obligations regarding behavior. I cannot think of anytime that one such warning was not sufficient in a case to moderate behavior where emotion may have fleetingly overcome decorum. 

Know that your demeanor and professionalism is noticed, is important, and is valued. 

Whether this case is meaningful or not remains to be seen. Those who question its significance note that Mr. Norkin had a history of disciplinary proceedings, this was not a first offense. They note that the Court concluded that Mr. Norkin refused throughout to concede his behavior was problematic (no regret demonstrated). They note that the "aggravating" factors found here would have led the Court to this severe punishment on the Rules violations alone, and that this is just another Rules violation punishment, not really a professionalism punishment.

That may be the case. This may not be a landmark decision. Time will tell. What is is, however, is a case in which the Court makes clear again its feelings about professionalism. It is a case in which lack of professionalism is held to violate the ethics rules. It is worthy of consideration. 

All attorneys, witnesses, and judges are worthy of the respect and courtesy that marks us all as professionals. If you are not receiving that courtesy or witness discourtesy to others, I encourage you to bring it to my attention. There is no room in our little corner of the practice of law for mistreating people, and there is no need for such behavior to reach the discipline level if a reminder might remedy it.