Sunday, January 31, 2016

Federal Shaming for Work Injuries

Late last year, BusinessInsurance.com reported recent action by the Occupational Safety and Health Administration (OSHA). When I see a federal agency interested in workers' compensation, I pause and think. There has been discussion in recent months of fears about the potential to federalize workers' compensation. David DePaolo and Bob Wilson have both spoken to the possibilities. I have touched on federalization a few times

In workers' compensation, there have been discussions of incongruity of benefits and procedures between various state systems. There have been a handful of national news stories, but primarily from only one outlet whose motivation and partiality have been questioned. National legislators have discussed legislation and even written letters to federal agencies regarding regulation. Some in the industry have even questioned whether the President will take action regarding state workers' compensation, without Congress. In the midst of this discussion, the BusinessInsurance.com story came and went with little fanfare. Is the OSHA action newsworthy?

According to BusinessInsurance.com OSHA is drawing "attention to workplace injuries and illnesses by disclosing more information on employers' workplace safety records." The safety record of an employer may be relevant in regards to OSHA regulatory efforts. However, the safety record may now also name the employer's workers compensation insurer(s). 

In recent disclosure and publicity of fines, OHSA has been "including the names of the cited employers' workers compensation insurers." This innovation has not drawn comment from the carriers as yet. Logically, the carrier has some interest in safety at the employer. At some level of exposure, the expense is the carrier's to bear. 

I note that it is "at some level" because many employers have "deductibles" or "retentions" that define some level of benefit exposure for which the employer itself will be financially liable. The insurance carrier, through operation of contract, will have financial exposure at some defined level of expense. Because of these contracts, many workplace accidents may never become the financial responsibility of the workers' compensation carrier. 

It is important to remember also that insurance does not generally cover fines and penalties imposed by the government for the occurrence of accidents, or for employer safety records more generally. When accidents occur, record keeping and reporting is required. If this is not appropriately performed, there can also be OSHA penalties. The liability for these fines or penalties is on the employer.

Why would OSHA find it relevant to publicize the names of insurance carriers who are not being fined, and who have no liability for the fines being imposed on these employers? That question was posed by BusinessInsurance.com and OSHA responded “for some companies, the damage to their corporate image may be more of a deterrent than the fines OSHA may issue." The agency hopes that carrier's fear or trepidation of being mentioned in connection with a fine or penalty will cause them to engage or act regarding safety practices at their client's businesses. 

OSHA believes that "workers compensation insurers can have a role in influencing companies to implement safety and health management systems and reduce the risk to employees. By including these insurers in the press release, OSHA hopes to encourage them to have a more active role in addressing the hazards.” In other words, the federal government wants to to embarrass companies into taking on responsibilities that are otherwise not theirs. 

The federal government could approach these carrier/insurers (or the industry as a whole). There could be a dialogue, a coordination, a cooperation to the end of carriers encouraging or influencing employers to take a more active role in worker safety. That collaborative process through a partnership might produce positive results. Teamwork is often a successful approach. 

OSHA has taken the opposite approach, however, seeking to influence behavior, to motivate improvement, through embarrassment or "damage to their corporate image." Perhaps not an unthinkable last resort method of motivation or encouragement, but at best a curious way to start such a hoped-for relationship. 

There is another motivation behind the federal "news releases about citations and fines." OSHA believes that these notifications "get the word out about specific risks." That is a more admirable and logical basis for OSHA publicity. If one employee suffers an injury at one employer in one town, it is productive and helpful for other employers in other towns to know of the risks, potentials, and solutions. That enhances safety and reduces risks. Publicity in this regard is more likely productive. This may be in the context of heavy industry, construction and what are thought of as dangerous jobs, but may just as easily be in retail, clerical and the perhaps less risky employments

The recently announced press-release methodology may be the precursor to public dissemination through the Internet. The OSHA has proposed a search able database of "workplace injuries and illnesses." The prediction is that OSHA will move forward with this plan in 2016. Curiosity and concerns remain regarding the details of this discussion, and the ultimate product that will result. Will this database provide seemingly ancillary information regarding those injuries, like who the responsible insurance carrier is? 

Is it intended to spread news and prevent future injuries, or is it intended to shame employers and/or carriers? Some might argue that it is clearly to inform, but with the admission that OSHA is not above the shame motivation regarding carriers, its intentions regarding employers, with Internet postings, may be called into broader question. 

It will be interesting to see the course OSHA elects to travel. Will it partner with the marketplace to build better processes through better communication, leadership and cooperation? Or will if find success in shame and reputation "damage?" In the end, one may wonder whose image is damaged more when approaches are heavy-handed and unilateral.

Thursday, January 28, 2016

A Troubled Soul, and I ask Again How will you be Known?

In death, I hope we find good things to say about people. I embarked on writing this post with the hope of doing just that. I expected to find so much about community involvement, contribution, and participation. I hoped here to extol virtue and success. I failed. 

I think we all have something to contribute to this world. We decide what, when, and whether, but we all have it. I struggle periodical with particular individuals, but I try to remind myself that we can learn from anyone. Everyone has a value if we look beyond the veneers.  

In that vein, a friend recently reminded me that "you can learn as much from a bad example as a good one." I hope that is not what is left to say about me when my time comes. I am pensive and reflective this morning because last week I learned that an attorney I knew years ago had passed. It was a name I had not thought of for some time. There was no public announcement that brought the news, just a brief email from a judge. It forwarded an email he had received from an attorney and former employee of the deceased. That gentleman had found some nice things to say in announcing the death.

Another attorney was later kind enough to forward me the obituary. It was a disappointment. It provided no real information. Essentially, it told me that Ronnie Bloom was born in 1947 and died last week at the age of 68. 

When I knew Ronnie in the early 1990s he was a prominent attorney. He was somewhat larger-than-life with fancy clothes, fancy cars, and he was smart, self-confident and crafty. He represented injured workers in Jacksonville. I met him while defending cases. He knew every doctor in town, and his gregarious nature endeared him to various people. He was an interesting individual who even then had a reputation as a substance abuser. 

He was a tough negotiator. Regardless of the merits of his case, he could plead it and argue it with a straight face. But, I often felt like Ronnie cared much, much more about what was good for Ronnie than what was good for his clients. He once declined resolution of some issues in a case, explaining to me that he preferred to continue litigating so he could enhance his hourly attorney fee. 

With some research, I learned a bit more about him. Ronald Bloom ran for the Florida House of Representatives in 1978, long before I knew him. That's admirable. According to the Jacksonville Times Union, he was arrested in 2005 and charged with possession of a controlled substance. He was not prosecuted on the drug charges, after agreeing to enter a rehab program. 

I remember when Mr. Bloom was disbarred in 2007. It was not long after the arrest the Times Union noted. The Bar's formal complaint enumerated various complaints. 

For one, Mr. Bloom assigned his rights to various attorney fees to a financial company. In exchange for up-front payment immediately, he agreed the financial company would be entitled to attorney's fees eventually paid either at the close of litigation or settlement of some cases. When those cases were eventually resolved, the financial company did not get the money that was promised. 

Mr. Bloom negotiated loans from injured clients. When their cases settled, he asked for loans, and drafted handwritten repayment agreements. In various such situations, Mr. Bloom did not advise these clients that they could consult with "independent counsel" before entering such an agreement with their attorney, despite the obvious conflict of interest issues. 

Mr. Bloom did not properly maintain his trust account and related records. In one instance, he directed a client to meet him at a check-cashing business to cash a settlement check. He falsely told the client and business that his firm trust account was unavailable due to actions of his staff. When the Bar investigation sought closing statements regarding multiple cases, Mr. Bloom provided only one of those  statements requested. 

Mr. Bloom failed to keep clients informed as to the status of their case. He did not return phone calls. He failed to appear for scheduled meetings with clients and others. 

In one investigative instance, the Bar asked him to respond to certain charges. Despite two extensions of time to file a response, Mr. Bloom failed to do so. 

In another instance, a client asked Mr. Bloom to withdraw from his case. The client wanted this so that he could hire another attorney. Mr. Bloom failed to comply. 

Truth is stranger than fiction. In 2004, Mr. Bloom settled a case with an Orlando attorney. He then drove from Jacksonville to Orlando and presented at defense counsel's office demanding the settlement checks. Angry when he learned that the checks had been sent to his Jacksonville office, he took paintings from the walls in the defense attorney's office. When the attorney contacted him and demanded the return of the paintings, Mr. Bloom denied taking them. When confronted with the existence of video proof of his actions, he sent the artwork back to Orlando with his staff. Getting those settlement checks and stealing the artwork were important enough for his personal attention; returning the artwork was apparently something he could not face though. 

In December 2007, The Florida Supreme Court disbarred Ronnie Leon Bloom. The Court reiterated much of what is set forth above, and then some. The Court noted that Mr. Bloom had a twenty year history of substance abuse, which it characterized as "spiral(ing) out of control in 2004." This, it said, was a "product of his chosen lifestyle." 

The Court noted that the accounting issues had not all been resolved by 2007. Moneys were still owed regarding some of the allegations. The aggravation and mitigation were described in detail. And the conclusion was rendered. He left the practice of law thirty-five years after he began in 1972, after graduating from the University of Florida School of Law. 

This is a hard story to write. What did Mr. Bloom leave behind as his legacy? Well, he was an example of what substance abuse can do. He was perhaps examplary in his focus upon his self-interest; for the most part he took really good care of Ronnie's interest, at least financially. I Googled his name. The first hit is a link to the Supreme Court opinion disbarring him. Then a reference to the Florida Bar attorney directory, then news stories about his disbarment. Then a link to his obituary. Finding more about his life was difficult. 

I could not find any picture of Mr. Bloom. I did not initially find any news articles unrelated to his arrest. After some extended searching, I did find that he was President of Florida Blue Key in 1972, the year he was admitted to the Bar and presumably the year he graduated from law school. There was a time when he was concerned with community.

I know of his reputation for litigating. I ran his name through Westlaw, and the first two results are again the Florida Supreme Court case disbarring him. A couple of other results listed him as counsel in appellate cases, but the case names were not familiar to me; there was no Waffle House, Paradise Ford, Victor Wine, or Carpenter. 

What can we learn from the life and death of Ronald Bloom? Well, at the minimum we can know that there are warning signs of trouble. 

It might be when things get so financially tight at the firm that future fees are being sold/pledged to a financial services company. That might be time for getting help.

I have suggested that we must all assume we are being watched. Taking paintings from the walls of someone else's office (taking anything from someone else's office or home) might be a warning sign. 

Before we even get to the paintings, though, if someone is driving two hours to pick up settlement checks, that may be a warning sign. If there is that much urgency for the funds (unless that urgency is the client's imminent loss of housing, need for care, etc.) that in itself may be a warning sign.

If a lawyer is borrowing money from clients, or even thinking about it, that might be a warning sign. If a lawyer is missing appointments, lying to clients, refusing to follow client instructions, these may be warning signs.

How will you be known? For that matter, how are you known today?

Many years ago, reflecting on a life spent, the Eagles sang: "you can spend all your time making money, You can spend all your love making time, If it all fell to pieces tomorrow, Would you still be mine?"

If it all fell to pieces tomorrow, I hope that someone would remember more of me than "he was born, and he died." I am troubled because I set out to find "the rest of the story," and to describe the contributions, successes, and saving graces of this gentleman. I failed. I found a few redeeming facts like his attendance at a premier law school, his leadership of Blue Key, and his bid for elected office. But a great deal of research yielded minimal results. 

Despite his distractions, I remember Ronnie as a tough litigator. He was smart and at times focused and precise. Every case he had was a winner in his eyes. He pushed hard, persistently, contantly. He was taking "it to the limit" every time. A great many lawyers over the years confided in me that they had doubts about winning a particular issue or case; Ronnie never did. 

But Ronnie had a problem, for which he repeatedly and unsuccessfully sought help. As I reflect, I find it tragic that a life of such promise could end in such a way. I hope Mr. Bloom has found a better place. And I hope that his example can serve others. Maybe he reminds us to ask are there people in our lives that could use a hand, a shoulder, an ear?

In no way am I suggesting that Ronnie had no such help in his life. I know several who tried unsuccessfully to help him with his issues over the years. He had friends and loved ones. Their best efforts likely sustained him and supported him. 

How will you be known? For what will you be remembered? What will you leave behind that makes this world a better place? My condolences to Mr. Bloom's family and friends. I mourn his loss, but I hope we can all learn to be a better self from his example. 

Godspeed Mr. Bloom. 

Updated 02.01.16, an obituary was published January 31, 2016

Wednesday, January 27, 2016

Godspeed and Good Luck Judge Roesch

I had the opportunity last night to attend the retirement dinner of Judge Laura Roesch in Panama City Florida. Judge Roche was appointed to the bench in May 2001, and is retiring just short of 15 years of service.

In a great line from A Knights Tale, Prince Edward tells the hero: "your men love you. If I knew nothing else about you, that would be enough." Judge Roesch is a loved and respected manager, in addition to being a judge. That staff has been so long-serving and loyal says a great deal about her. It is not easy to manage a staff. State government has not been the land of pay raises and bonuses the last 15 years. But one thing that strikes me about Judge Roesch is the continuity of staff the PMC office has enjoyed. The whole dinner last night was their doing, with a special shout-out to Lyna, the rock upon which District PMC has long relied. 

The District staff opened the proceedings with a skit. Lyna made a speech including so many of the Judgisms with which we have all become familiar. Stories were shared and events remembered. In a touching moment, Judge Lazzara noted his last attendance at a retirement dinner was about 15 years ago when Judge Brown left the bench in PMC just prior to Judge Roesch's appointment. Judge Brown attended the dinner. For those that remember him, know that he has not aged a day in the last 15 years. I asked what he has been doing and he replied "anything I want, I am retired!"

Reflecting on the past 15 years, I believe that Judge Roesch's greatest contribution has been her consistent dedication and pragmatism. Judge Roesch has been all about providing a fair and impartial hearing to injured workers and their employers in this part of the state. She has taught me so many things over the years. She has been a persistent contributor to handling cases in other districts. She is among the first to call and offer help when others have retired, fallen ill, etc. 

She had been on the bench only a few months when I was appointed to sit in Pensacola, Florida. Being the only 2 JCC district offices in the central time zone, there was a natural inclination for consistent operations in Panama City and Pensacola. Besides sharing a time zone, we shared a bar to a great degree. Judge Roesch was gracious in welcoming me to the bench, and was a great resource on so many occasions. 

Judge Roesch is so much more than a judge. I have always been impressed with her ability and motivation to enjoy life. She is an avid reader a student of the law. She is enthralled with foreign cultures and history, and travels extensively. We have had many conversations about her study of Great Britain. I did not know until last night that this included collecting British automobiles and participation in a car club. 

She and her husband, Rich, have been collecting and riding motorcycles for a number of years. Her Harley-riding stories are always entertaining. She sometimes reminds me of the protagonist in Walter Mitty, travelling the globe and seeing the sights. I expect she could put on quite the slideshow/travelogue.  

So many individuals had wonderful things to say about Judge Roesch last night. She engaged in so many animated conversations with this packed house of individuals. There were friends from her ukulele orchestra (yes, that is not a typo), her car club, her reading club, the OJCC, attorneys, and more. It was quite a tribute. 

At the end of the evening, as I found myself driving back across the panhandle to Pensacola, my lasting impression is how much we as an organization, we as a state, will miss this noble and able jurist. 

I am thankful for the years of encouragement, support, and honest criticism. I will miss her academically-focused and well reasoned legal sense. I am happy to celebrate her transition to a new phase of her life. And celebrate the fact that I had the honor to serve with her for so long. 

We will all miss you Judge Roesch. It won't be the same without you. Someone will fill the position of JCC in Panama City, but whoever it is will struggle to fill your shoes. 

Tuesday, January 26, 2016

To D or not to D? that it appears, is the Question

In 2013, the Florida legislature amended Fla. Stat. 90.792 to adopt the “Daubert" ("D") standard instead of the existing "Frye" ("F") standard. This affects the admissibility of expert evidence. A great article on what the change means for expert witnesses is here. The transition to Daubert seems straightforward at first glance, but it has become interesting lately. On January 1, 2016 the Florida Bar Board of Governors voted to endorse the Frye standard and recommend to the Supreme Court to ignore the Florida Evidence Code. 

America’s legal system has many similarities with England’s. The following may provide too much background for attorneys, but many non-lawyers also read these posts. Our foundation use of English law is a natural consequence of their prevailing presence on the continent and our colonial origins. Thus, we follow a system called the Common Law, which involves law being developed by courts over time, through interpretation and judicial opinions. 

Statutes may adopt or change the Common Law. Statutes are not developed by judges, but are enacted in this country by the people’s representatives in legislative bodies, like our Florida legislature. There is an advocated advantage to the statutory body of law, that it comes to us through those elected by us. It is perceived that a disgruntled populace may therefore change the law by electing different representation.

America is a Constitutional Republic, with the very definition of its governance imparted from the people to the government. The context of this grant of authority is the United States Constitution and those subordinate constitutions of the various states. Through these grants is government established and authorities are both defined and restricted. 

There are two major legal divisions that define divisions of power or authority in American government. The first separates state authority from federal authority and is called “federalism.” The second variation involves delineation and definition of authority between the various branches of either the federal or the state government and is called “separation of powers.” 

Through separation of powers, government branches, the Executive, Legislative and Judicial have respective specific powers. They are precluded from taking powers that are not granted to them, called "encroachment," and likewise are precluded in many instances from giving their respective powers to other branches, called "delegation."

The very existence of workers' compensation is an example of delegation. The legislative power over workplace injuries was delegated by the legislature to the Office of Judges of Compensation Claims, part of the Executive branch of government. Florida workers’ compensation has reasonably recently experienced debate of appropriate delegation. The history of the Supreme Court’s Rules of Workers’ Compensation Procedure is explained in its 2004 opinion In Re Amendments to the Florida Rules of Workers’ Compensation Procedure

Essentially, the Supreme Court promulgated workers' compensation procedural rules in 1973, directing how proceedings in this administrative (executive) agency would progress (this, it turns out was "encroachment"). The Court in 1973 explained that its authority was rooted in its inherent rule-making authority. Legislative action in 1974, endorsing the Court encroachment of procedural rules, was interpreted as delegating to the Court the legislative authority for rule-making, that is, rules to effectuate the statute. 

For thirty years, the Court periodically updated the Rules of Workers’ Compensation Procedure, until in 2004 it considered the question anew. Someone then did more than accept on faith that the Court had authority, and with this analysis it concluded “this Court lacks the authority to promulgate rules of workers’ compensation procedure.” The Court concluded that it neither had the inherent authority, and that the Legislature's grant of authority was inappropriate. In other words, the Court had been wrong all along, thirty years.

We return now to 2016 and the evidence code. The Common Law, that is judicial decisions, historically evolved in America generally and Florida specifically to provide standards that defined what evidence would be admissible in trials. There were decisions outlining and defining what demonstration or showing would be required to admit or exclude various kinds of evidence. In 1972, drawing from these court decisions, the Federal Rules of Evidence were adopted by the United States Supreme Court. 

In 1976, following the federal example somewhat, the Florida Legislature enacted Florida Statutes Ch. 90, the “Florida Evidence Code.” This statute purports to regulate the questions of evidence admissibility for disputes in Florida. The scope and applicability are defined in Fla. Stat. §90.103 “Unless otherwise provided by statute, this code applies to the same proceedings that the general law of evidence applied to before the effective date of this code.” The statute replaced then existing Common Law. 

An issue was then raised by attorneys, questioning whether the Florida Legislature had the authority to enact this evidence code (note that Congress did not enact the Federal Rules of Evidencethose were adopted by the U.S. Supreme Court). The attorney's argument was essentially that some provisions of the Code affected procedure before the Courts, and thus was a legislative encroachment upon the inherent rule-making authority of the Florida Supreme Court. 

In what may seem to many a strange process, it is the Florida Supreme Court that decides whether that Court does or does not have authority. By the same doctrine the Court is likewise the arbiter of whether any other branch is guilty of encroachment or improper delegation. In this regard the Court gets the last word. The Court makes its own rules, and decides constitutional issues, including those of separation of powers, encroachment, delegation, etc. See In Re Amendments to the Florida Rules of Workers’ Compensation Procedure.

Thus the question came before the court in 1979, in In Re Florida Evidence Code, 372 So.2d 1369 (1979); does Chapter 90 F.S. control the processes of admitting evidence in Florida disputes? 

It is noteworthy that this question was not brought to the Court in an adversarial proceeding. Adversarial proceedings are fundamental to the American judicial process as a whole. There is a core belief that legal questions will be best decided when they are presented in an adversarial setting, with all sides of the dispute being heard. In Constitutional law parlance, the people bringing such a dispute must have “standing,” which is a personal interest in the dispute and an actual harm or benefit resulting from the dispute. The belief is that such parties will be zealous in prosecuting and defending, and the full breadth of the dispute will be presented for impartial decision.

Instead, this consideration of the applicability of the new Evidence Code was an administrative proceeding. Objections and comment about the Code were reviewed but there was no adversarial process as such. The Court concluded that the Code did apply. However, the Court perceived that there was a potential for various questions to arise regarding the applicability of the Code, and the Court therefore “adopted” the legislatively enacted “code” in a general sense, while deferring for another day any specific questions that might address particular elements of the new Code. Thus, in the 1970s, an evolution brought Florida evidence from a Common Law process to a legislatively adopted statutory process, and the Florida Supreme Court accepted or adopted that evolution. 

Since that time, the Rules of Evidence have come before the Court periodically in similar administrative postures. This is a familiar process for attorneys, as the various procedural rules of court are likewise presented to the Court in a periodic cycle. The Florida Bar proposes and reviews changes, public comment is solicited, and the Court thus maintains various rules of procedure in civil, criminal, family, and other types of legal matters. The merits of those rules are generally accepted through this non-adversarial administrative process.  

In the first such periodic consideration In Re Florida Evidence Code, 372 So.2d 1369 (1979), the Court discussed the potential for conflict and sought “to avoid multiple appeals and confusion in the operation of the courts.” The Court therefore adopted “temporarily the provisions of the evidence code as enacted” as “rules of this Court.” Any question of separation of powers was thus avoided for another day. 

Months later, titled In Re Florida Evidence Code, 376 So.2d 1161 (1979), the Court reiterated its adoption and endorsement of the Code following input from the bar, and clarified the effective date of the Code, in so far as it was also procedural rules. There is again no discussion of separation of powers. The adoption process was repeated in 1981. In re Amendment of Florida Evidence Code, 404 So. 2d 743 (Fla. 1981). It was repeated again in 1986. In re Amendment of Florida Evidence Code, 497 So. 2d 239 (Fla.1986), and 1993. In Re Florida Evidence Code, 638 So.2d 920 (Fla. 1993). These appear to be fairly straightforward "adoptions" of of statutory amendments.

In 1996, the Court again considered evidence. Citing its authority under article V, section 2(a) of the state constitution (inherent authority), the Court rendered In Re Florida Evidence Code, 675 So.2d 584 (1996). It considered the recommendation of The Florida Bar to adopt multiple statutory changes to the Code, and “amend the Rules of Evidence to conform to statutory changes in the Evidence Code.” 

The Court thereupon, again, adopted “the amendments to the Evidence Code to the extent that they concern court procedure. These amended rules are effective on the dates the bills became law.” In this decision appears the term Rules of Evidence (in capitals as a proper noun) in conjunction with the “Evidence Code.” There is purportedly both a Code and Rules. 

Then, in 2000, the Court departed from the legislature. In Re Amendments to the Florida Evidence Code, 782 So.2d 339 (Fla. 2000). The Court disagreed with the "admission of former testimony" from a witness, if that witness was at the time of trial "available as a witness." The Bar perceived the law passed by the legislature would broaden an exception to the hearsay prohibition (many out-of-court statements cannot be repeated in court except by those who uttered them out of court to begin with). 

In declining to adopt the 2000 legislation amending Chapter 90 of the Florida statutes, the Court noted that a similar change previously passed the legislature, and was vetoed by the then Governor. The Court seemed to place some stock in what the former Governor said about the amendment in his veto message. The Court did not adopt the amendment to Fla. Stat. 90.803. Conversely, and curiously, the opinion does not discuss the approval (or absence of veto) of the 2000 amendment by the then-serving Governor. Again, this was not an adversarial proceeding with multiple parties presenting opposing views. 

So, 2000 brings the first instance of rejection. The Florida Bar committee recommended rejection and the Court agreed.

In 2002, the Court returned to the pattern of adopting legislative changes. In Re Amendments to the Florida Evidence Code, 825 So.2d 339 (Fla. 2002). In the 2002 opinion, the Court noted a committee of The Florida Bar recommended against adopting one of the statutory changes. The recommendation was "unanimously approved by the Board of Governors of The Florida Bar." Nonetheless, the Court "after hearing oral argument, and carefully considering the committee's recommendation against," "decline(d) to follow this recommendation" and adopted all of the legislative amendments. It is notable that three of the justices dissented from the decision.  

As an aside, appellate courts, including the Florida Supreme Court generally decide cases in a consensus fashion, rather than as individual judges. When a single judge or minority group of judges disagrees with the majority conclusion(s), the minority group writes a separate opinion, called a "dissent" explaining why the minority would have made a different decision.

The 2002 opinion also provides some insight into the administrative process. The Court noted, in adopting the contested change, that "in the absence of a true 'case and controversy,' we express no opinion on the substance of the amendments or on the challenges" raised by the committee, the bar or the public in comments. This is a reference back to the belief in an adversarial justice system in which those with a real interest in the outcome (standing) are charged with presenting to a court the arguments for or against a law. About 20 years into the habit of administrative review and adoption, the Court voices some deference to the adversarial system.

The Court's approval process essentially continued in 2004, In Re Amendments to the Florida Evidence Code, 891 So.2d 1037 (Fla. 2004) with one provision deferred but then adopted the next year. Amendments to Evidence Code-Section 90.104, 914 So.2d 940 (Fla. 2005). Statutory amendments were again adopted in 2007. In Re Amendments, 960 So.2d 762 (Fla. 2007). 

In 2011, the Court again considered statutory amendments. In this opinion, the court again adopted statutory amendments. In Re Amendments to the Florida Evidence Code, 53 So.3d 1019 (Fla. 2011). The Court again in 2011, noting its caution in 2002, stated "we express no opinion on the substance of the amendment." Thus, another nod to the usual adversarial methodology of decision-making within the confines of cases and controversies. 

In December 2013, the Court rendered In Re: Amendments to The Florida Evidence Code, No. SC13-98 (Fla. Dec. 12, 2013). Leading up to this consideration, a committee of The Florida Bar recommended adoption of a variety of legislative amendments to the code. The Court declined that recommendation. The decision was based, regarding one provision, on the Court "question(ing) the need for the privilege (fiduciary)." In regards to another section ("statement offered against a party"), the rejection was based on "concerns about its constitutionality," and a third (regarding medical negligence) due to concerns regarding constitutionality and that it would be "prejudicial to the administration of justice."

Months later, in July 2014, the Court issued a "Revised Opinion" which withdrew the December 2013 opinion. In this, it reiterated its conclusion and rejection regarding the privilege provision, and the medical negligence provision. But, the Court adopted the legislative change regarding the "statement offered against a party." Two justices dissented regarding this decision, one who would have adopted all the changes, and one who would have rejected all three as the Court initially did in December the year before. 

This second dissent is interesting. The justice writing it concluded with a concern "that we are neither promoting the administration of justice nor furthering the goals of the Florida Evidence Code" with this adoption. The justice notes the Code is "designed to ensure and increase the reliability and quality of evidence admitted in Florida Courts." The conclusion: "because of the nuances connected with this issue, I would await a case or controversy to consider this statute, determine its constitutionality, and if constitutional, ensure that the procedures for the predicate for admissibility are clearly set forth." In dissenting, a reference to the generally accepted judicial process of adversarial proceedings.

Thus, in 2013, the Court again rejects legislative enactments. The "Rules" depart from the "Code." This instance is notable because, unlike the 2000 rejection of legislative change this one disagrees with the recommendation from The Florida Bar. 

And today, the Court has for consideration the recommendation of The Florida Bar to reject the 2013 statutory amendment to Fla. Stat. 90.792 adopting the “Daubert" standard instead of the existing "Frye" standard for admissibility of expert evidence. 

What has this long (very long) history of the Florida Evidence Code taught us? First, is that the legislature's role in the evidentiary process seems to be generally accepted. The Court has repeatedly adopted those changes (to the extent they are procedural). The bar has been involved in this process since the beginning. On occasions the Court has adopted bar recommendations as presented, and has also rejected bar recommendations. It has relied curiously upon the veto messages of former Governors in justifying decisions. It has changed its mind on questions of adoption. And the justices have not always been unanimous on their conclusions and views. 

From these lessons, we can conclude that the Court may well adopt  (as a procedural rule) Daubert for Florida courts. This would bring Florida in line with the American trend (Fourteen states still use Fryethat is if Florida continues to do so). The Court may likewise reject Daubert for Florida courts. 

But, from its 2004 opinion In Re Amendments to the Florida Rules of Workers’ Compensation Procedure, it seems likely that the Florida Supreme Court decision regarding Daubert, if it rejects Daubert as recommended by The Florida Bar, will not affect the Florida Office of Judges of Compensation Claims (OJCC).

The Court authority cited, in adopting or rejecting various statutory amendments historically, has been its inherent rule-making authority. The Court has concluded that it has no such rule-making authority for the OJCC. Therefore it is probable that the statutory Evidence Code will control the questions of evidence before this executive agency. 

In one potential outcome, from which many find no solace, it is possible that the Court could reject Daubert, rendering the Frye standard applicable in Florida state courts, and the legislative adoption of Daubert could be relegated solely to applicability in workers' compensation and other administrative, executive branch, disputes and cases.  

Critics of the Daubert standard have repeatedly voiced their contention that in this administrative (OJCC) process, devoid of juries, the concerns addressed by Daubert are of less concern than in the Circuit and County court systems. In other words, they contend that Daubert has no place in a system in which all decisions are made by a judge (JCC) rather than jury. They find it ironic that ultimately this standard could become the norm in the dispute system in which it is (perceived) least needed. 

Others question the entire administrative review process of the Court regarding laws passed by the Florida Legislature. They cite separation of powers and contend that the Court action regarding the Evidence Code is effectively either making law (a power constitutionally given exclusively to the legislature) or vetoing law (a power constitutionally given exclusively to the Governor). They contend that the Court's authority regarding such laws is limited to considering the law and effect in a true "case and controversy," that is an adversary proceeding, just as all other laws are considered or challenged in the courts. 

Some suggestion of this conclusion comes from the Court's own opinions mentioning "case and controversy." Some suggestion of this comes from dissenting justices in various decisions. Some suggestion of this comes from attorneys who conjecture regarding how the Court will address this latest statutory amendment. One asked me recently if it is not possible that the Court has been mistaken about its administrative method of considering amendments to the Evidence Code for the last thirty years, just as it was mistaken regarding its authority to enact procedural rules for workers' compensation. My reply was that anything is possible.

These are some interesting issues and questions. Time will tell how this debate resolves. For now, the question is up to the Court and we all wonder for now "to D or not to D? that is the question."

Sunday, January 24, 2016

"The Rule" and other Lessons from Texas

There is a rule in Florida. In fact, in litigation in Florida there are more rules than you can imagine. It seems like they are all around us and forever changing. It is a challenge to keep up with the rules, of procedure, of evidence, of judicial administration. 

But in the hearing room, we often hear reference to "The Rule;" as in "Judge, we would like to invoke The Rule." It sounds so imposing. Certainly it sounds so to unrepresented parties. I am sometimes surprised at how many attorneys, having thus invoked The Rule, cannot cite "The Rule" or provide any details regarding it. 

"The Rule" is found in the Florida Evidence Code, Fla. Stat. 90.616, which says

(1)At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2). (Emphasis added).

This is "The Rule" that says witnesses can be made to wait their turn outside the hearing room, and not listen to the testimony of other witnesses. There are exceptions to "The Rule." It does not apply to a party, a "party representative" which is a the person designated to embody a corporate party for the purpose of the trial, or "a person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause." In Florida, there is a fourth exception in criminal cases, but that is of little interest in this setting. 

"The Rule" sometimes causes some consternation when a party has no attorney. The attorney across the table invokes "The Rule" and the judge may have to pause and explain the situation to the unrepresented party. 

Recently, a case in Texas reminded me of "The Rule." WorkCompCentral reported that in Quintanilla v. Baxter Painting, No. 05-14-00685-CV, 12/01/2015, the judge in a personal injury action denied the plaintiff's motion to sequester the other witnesses in the case, denied his request to invoke "The Rule."

The facts support that the plaintiff did make this request, and the judge did deny it. When the plaintiff sought appellate review, after losing at trial, the appellate court acknowledged the request in Texas is "is governed by Texas Rule of Evidence 614 and Texas Rule of Civil Procedure 267." Thereby the "witnesses shall be removed from the courtroom to some place where they cannot hear the testimony delivered by any other witness, upon the request of any party." (Emphasis added). This is similar to the Florida Code quoted above. 

The Texas appellate court explained that this "sequestration is mandatory upon the request of a party." Unequivocally, the trial judge was wrong in declining to enforce "The Rule." This is the kind of thing an appellant (the one seeking relief from the appellate court) loves to hear. Their point in filing their appeal is that they believe the trial judge is wrong; they are glad to have the appellate court agree with them. 

The second object lesson of Quintanilla v. Baxter Painting is a bit more subtle. As glad as the Texas plaintiff/appellant was to have the court agree with this error argument, he was likely equally disappointed in the court's next conclusion. The court concluded that although the denial of "The Rule" was wrong, the court "said this error was harmless since Quintanilla had no admissible evidence to show how one of the defense witnesses had allegedly changed his testimony from that given earlier in a deposition to be more beneficial to the defense."

In other words, the plaintiff/appellant had to do more than show that the trial judge was wrong, the plaintiff/appellant had to have evidence to show that this error resulted in actual harm or damage to his case. This is an important reminder, on appeal error is one key and an actual harm is the other. 

The third object lesson is in making sure the appeal that is filed addresses all of the issues for the court. The plaintiff/appellant in Quintanilla v. Baxter Painting wanted to put "admissible evidence" in the record for the appellate court to consider. The plaintiff/appellant asked the trial court to "include the witness' deposition testimony in the appellate record" so that the appellate court could see what, if any, changes occurred in the testimony, that is show the harm from the error. The trial court denied that request regarding the deposition testimony. 

Although the plaintiff/appellant appealed the denial of "The Rule," the plaintiff/appellant did not appeal the trial judge's denial of that motion to include the deposition transcript in the record. The appellate court therefore did not see the deposition testimony and did not consider whether the trial court was right or wrong to exclude the depositions. The appellate court only considered whether the plaintiff/appellant had proven harm, and finding no evidence in the record, concluded he had not. 

American appellate courts are concerned with error. They are neither interested in retrial before them, nor equipped, to retry a case. Trial of the case is for the trial court. The appellate court looks at that trial on a written record and discerns whether error has been demonstrated, as it was here. Then it looks at whether such error resulted in harm. It is the job of the appellant to both point out the error and prove the harm.

The case is a great reminder of "The Rule" and just as useful for reminding ourselves about the purpose and process of appellate courts. 

Thursday, January 21, 2016

Frivolous Change of Venue

Attorney actions have consequences. Sometimes it is just a matter of who the consequences affect directly and who indirectly. 

WorkCompCentral reported recently that an attorney in New York was sanctioned for "for making a frivolous change-of venue" request. Venue is a subject that confuses many people. They get it all intertwined with "jurisdiction," which has some relationship, but is a different topic. Venue is where the trial will occur. It is not about which judge will hear the case. It is not about which issues the workers' compensation judge has authority to decide. It is just about where the trial will occur. 

The Florida trial venue parameters are in Fla. Stat. §440.25(4)(d). The Florida Statute makes a venue distinction between accidents that occur in Florida and those that occur out-of-state. If the injury happens in Florida, "unless otherwise agreed to between the parties and authorized by the judge of compensation claims" the trial will occur "in the county where the injury occurred." 

The county of accident cannot be used when the injury occurs outside Florida. Florida workers' compensation judges are empowered by Florida statute. The authority we have is dependent upon Florida law, and can generally be exercised only in Florida. Therefore, the statute says: 

"If the injury occurred outside the state and is one for which compensation is payable under this chapter, then the final hearing may be held in the county of the employer’s residence or place of business, or in any other county of the state that will, in the discretion of the Deputy Chief Judge, be the most convenient for a hearing." 

So, if the injury occurs in Florida, the case will be assigned to the district responsible for the county in which the injury occurred. If the injury occurs outside of Florida, then the case will be assigned based on where the employer is located in Florida, or the Deputy Chief Judge must pick an appropriate county. 

There have been a fair number of lawyers over the years that ask a judge to move the venue of a case. Such a request is generally done by filing a motion, see Rule 60Q6.115.. All parties to a case might agree to change something in a case, that is a stipulation. Stipulations do not have to be approved by judges. Filing a stipulation might not result in an order and the order is what would move the case to another county/district. 

So, if the parties agree, a better tool is an "agreed motion" to change venue. It being a motion should prompt an order, and it being agreed should expedite its determination. If there is not agreement to change venue, then the appropriate tool is a simple motion. Rule 60Q6.115 would require that the moving party consult with the non-moving party and state in the motion that the non-moving party disagrees with the motion. 

It is important to understand that the Florida statute does not afford the assigned judge the unilateral authority to move the trial, the venue, of a case in which the injury occurred in Florida. In other words, if the injury occurred in Florida, and any party insists on the venue in the county where that occurred, that is where the trial will remain. The venue change is subject to both the authorization of the judge, and must be "agreed to between the parties." 

A motion to change the venue in Florida, when the accident occurred in Florida and when any party objects to the change, may very well be both impractical and a waste of time. There is more discretion for the judge when the accident occurred outside of Florida. 

In New York, as reported by WorkCompCentral, an attorney "filed a request that the hearing" occur in White Plains, NY. He asserted that this would be the "most efficient hearing point." The assigned judge denied the motion/request and restated the proper venue for the case" Brooklyn. The attorney "had previously "been advised that venue could not be changed for the convenience of an attorney." Additionally, the attorney's firm had previously been "sanctioned for making a frivolous request for change in venue." 

The assigned judge concluded that this request for venue change was likewise frivolous and imposed a penalty of $500.00. In New York, there is a workers' compensation board, which is somewhat similar to the former Florida Industrial Relations Commission. Decisions of workers' compensation judges in New York are appealed to the Board, and if a party remains dissatisfied the Board's decision, it can be appealed to a constitutional appellate court. 

The NY attorney appealed the imposition of a $500 penalty. The Workers' Compensation Board "upheld the judge's ruling and imposed an additional penalty of $500 for the frivolous appeal." Facing a total of $1,000 in penalty, the attorney decided to seek review by a constitutional court. The appellate court affirmed the Board's decisions, and the attorney will now pay the $1,000, in addition to the time and expense that has been spent on the Board and court appeals. 

A side note in the appellate court's opinion is worth noting. At the Board appeal, the attorney tried to provide more or different justification for the venue change. In other words, the request for venue change was made with one stated reason; after the penalty was imposed, on appeal, the attorney tried to add another reason. The Board did not allow or consider that addition. The appellate court noted that this refusal by the Board was within its discretion. As a general rule, appellate courts (or Boards) do not consider new arguments or evidence on appeal; they review arguments that were made at the trial level. These arguments made at the trial level are called "preserved" and appellate bodies are reluctant to review issues that are not preserved (or in effect they become trial courts of new issues instead of appellate bodies). 

Could this happen in Florida? There are two sections of the Florida Workers' Compensation Law that might be read, and a rule. 

Fla. Stat. §440.32(3) provides that every pleading (motion, stipulation, claim, etc.) must be signed. When an attorney signs, she/he is certifying that the information in the pleading "to the best of the signer’s knowledge," "is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." 

Fla. Stat. §440.32(1) provides that if "proceedings in respect of such claim or order have been instituted or continued without reasonable ground, the cost of such proceedings shall be assessed against the party who has so instituted or continued the proceedings." This section provides some foundation for financial repercussion if a claim or motion is inappropriately pursued. A penalty in this regard would be the responsibility of the party, not the attorney. 

Fla. Stat.  §440.32(2) provides a potentially more costly penalty, in the form of costs and attorney's fees. This section, however, requires the conclusions that "the proceedings were maintained or continued frivolously," which is similar to the conclusion reached by the New York Judge and Board. If the proceedings were frivolous, then the statute may be the basis for penalty "against the offending attorney." If an order is entered under this statute, a "copy of the order assessing the penalty must be forwarded to the appropriate grievance committee." 

And, there is Rule 60Q6.125. This procedural rule governs the "failure to comply with the provisions of these rules or any order of the judge." Such failure "may subject a party or attorney to" a variety of sanctions, including "striking of claims, petitions, defenses, or pleadings; imposition of costs or attorney's fees; or such other sanctions as the judge may deem appropriate." 

The New York Court concluded that the attorney there made a baseless motion or request to change venue. It noted that the attorney had unsuccessfully tried this process previously, and that he had "no reasonable basis for either the motion to change venue or the appeal to the board." Thus, the attorney is out the time and money expended litigating and appealing this issue, and must pay the $1,000 penalty for the frivolous request. 

An interesting case. It is instructive on venue in New York, and may be educational regarding venue in Florida. The analysis here is fairly rudimentary. 

(1) did the accident occur in Florida? If yes, the venue is the county where that occurred, unless the parties agree otherwise and the judge approves. The right tool to express agreement to change is a "joint" or "agreed" motion, and ultimately it is up to the assigned judge to approve or not that agreement to change.

(2) if the accident did not occur in Florida, then the initial assignment is made by the Deputy Chief judge. Any party, with agreement or not, could move to change that venue. And, again, it is up to the assigned judge to approve or not that agreement to change.

Could a party or attorney be sanctioned for filing an opposed motion to change venue for an accident that occurred in Florida? It seems possible. If the motion is "without reasonable ground" then the attorney might have to pay costs. If the motion is "maintained or continued frivolously," then the party (not the attorney) might be liable for attorneys fees and costs, and the attorney might be reported to The Florida Bar.