Thursday, August 29, 2019

Constitutional Standards Explained

The Florida First District Court of Appeal recently rendered Department of Health v. Gainesville Woman Care, LLC., No. 1D18-623 [August 1, 2019]. The case is not about workers' compensation, but about a statute imposing a specific informed consent regarding a medical procedure. The appellee (Gainesville Woman Care, or "GWC") challenged the statute on constitutional grounds, contending that it "on its face, violates the Florida Constitution’s right of privacy provision." Constitutional analysis has been the focus of various challenges to the Florida's workers' compensation statute, and the Court's explanation of constitutional analysis here is worthy of discussion. 

The history of this challenge includes the appellee (GWC) challenging the statutory amendment shortly after it was enacted, seeking to "temporarily enjoin" enforcement of the law while the substantive challenge proceeded in the courts. This injunction was granted by The Florida Supreme Court. As the substantive challenge proceeded in the Circuit Court, "Appellees moved for final summary judgment and prevailed," meaning that the trial court concluded the law was unconstitutional on the merits of the Appellees challenge, and did so before the case made it to trial. 

The First District Court reversed that conclusion, and explained the distinctions between "the temporary injunction phase" and the substantive challenge. It described how the Appellees (GWC) presented evidence, in seeking the injunction. At that time, however, "the State didn’t offer any rebuttal evidence." See If You Are Not Perry Mason, Bring Evidence. Based only upon the evidence submitted by the Appellees, the injunction was granted and the challenged informed consent statute could not be enforced while the trial court proceeded with considering the merits of the challenge. 

In that later consideration of the merits, Appellees sought summary judgement (without a full trial). In support, GWC argued their allegations and the fact that the Supreme Court had granted the temporary injunction. The State responded to that motion by "producing evidence supporting the law’s constitutionality." This evidence "hadn’t been offered at the temporary injunction stage of the case." Despite that evidence, the "trial court granted Appellees’ motion for final summary judgment," and concluded the informed consent statute "to be facially unconstitutional." The First District reversed that decision and remanded the case back to the trial court. Note, the District Court did not say the law is "constitutional," it said the trial court should have proceeded to trial rather than ruling without trial in a summary manner.

The District Court explained that the evidence adduced by the State in the summary judgement proceedings established issues of "material fact as to whether the" law was constitutional. The trial court had rejected those facts, discounting the persuasiveness of the proferred evidence. Notably, the decision of the trial court was not entirely clear as to whether its decision was based on a "facial" analysis, and it cited "particular circumstances in which the law might not constitutionally apply," suggesting an "as applied" analysis. The District Court explained the distinction between the two, "facial" and "as applied," in this discussion of clarity. 

The Court reminded that "summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” It explained that the State opposed the initial "temporary injunction," but at that time "failed to present any evidence" of a "compelling state interest" that justified the statute. The Court described the State's evidence at that injunction stage as "feeble," in explaining why the temporary injunction was granted by the Supreme Court and the enforcement of the statute prohibited while trial court litigation proceeded. 

To the contrary, the Court noted, the Appellees (GWC) did not respond to the State's evidence on the merits in the trial court. In response to the State's evidence, the District Court concluded "Appellees are standing pat." This is critical, according to the Court, because the preliminary injunction decision is precisely that, "prelimary." It is not generally a full analysis of the facts and law, which occur in a trial on the merits, but a decision made for a temporary period based upon preliminary evidence and allegation. As such, the Supreme Court decision granting the injunction was not a decision on the merits of the law. And, furthermore, the Court noted that decision was in some part due to "the State’s lack of evidence." As there were factual issues for resolution, the Court concluded that summary judgement was inappropriate.

Thus, the conclusions seems simply. First, the State did not adequately address the request for temporary injunction and thus the injunction was granted. Second, the GWC did not adequately address the State's evidence in the trial court, and thus granting judgement without trial was inappropriate. The process and history demonstrate the need for full and focused prosecution and defense at each stage of a proceeding. 

The Court then addressed the trial court's analysis of the constitutional question, drawing distinction between a "facial" and "as applied" determination. It reiterated the "established test for assessing facial constitutional challenges": "whether it violates the rights of all women in all circumstances." The Court compared that test to the analysis that would be appropriate for a particular person "claiming particular harms," the "as applied" analysis: whether the "Law violates the constitutional rights of some women in some circumstances." The Court reiterated this distinction and stressed that in a facial challenge the Court should "consider only the text of the statute, not its specific application to a particular set of circumstances." 

Phrased differently, the Court explained, "facial challenge (test) is not whether the . . . Law can be lawfully applied to a particular set of facts," but "whether no set of circumstances exists in which the law is constitutionally valid." The Court noted that: 
"The trial court did not state whether it was invalidating the law under Florida’s traditional no-set-of-circumstances test for facial challenges. But it highlighted particular circumstances in which the law might not constitutionally apply," 
Thus, the findings of the trial court regarding facts and circumstances of some leads perhaps to a lack of clarity in the decision. The failure of the trial court to affirmatively state its reliance on the "no-set-of circumstances" standard could perhaps leave confusion as to what standard the court applied and thereafter cause confusion as to the applicability of the court's decision to other constitutional challenges.

The District Court, in evaluating the trial court's conclusion is thus left with questions. This illustrates that it is critical in constitutional analysis to both state the standard of review applied, and to explain the factual findings pertinent to that analysis. That reminder is relevant in any trial proceeding. The decision should be sufficient to explain the outcome to the specific parties (who are already familiar with their facts and circumstances) and to any member of the public that thereafter may read the decision, and who lack any context or knowledge of the case beyond that provided by the judge in that decision. The judge's decision must be complete, accurate, and clear. 

Without such clarity, a reviewing court, as well as those in other future litigation that may seek to apply the court's analysis similarly, are left without clarity as to the constitutional, or other decision, analysis. Clarity provides predictability and effectuates review and stare decisis. Stare decisis is a legal maxim that essentially holds that courts will respect and follow previous judicial decisions in deciding present disputes. It is discussed further in A Kentucky Constitutional Analysis

Whether a constitutional decision is "facial" or "as applies" is critical in light of stare decisis. Whether a decision binds only a particular case and its parties, specifically because of the facts of that case ("as applied"), or whether the decision applies to all parties in all cases regardless of the facts ("facial") is critical information for both those parties and the public. Courts have a responsibility to be clear on the standard applied as well as the breadth and scope of such a determination of constitutionality. 

The opinion in Gainesville Woman Care was not unanimous. Judge Wolf dissented. It is focused on another element of constitutionality, which requires in challenges such as this that the state prove it has a compelling interest in constraining individual rights, and that the law is "the least restrictive means of serving any compelling state interest.” Judge Wolf concludes that trial court correctly concluded that element was not demonstrated by the State and therefore Appellees (GWC) were entitled to summary judgement.

There follows a detailed explanation of the challenged statute, and its application to various potential challengers and potential factual situations that a person "may face," situations in which the statute might be applied. Judge Wolf concludes that "a law that forces a patient to delay medical care to the detriment of her health cannot be the least restrictive means of furthering any compelling state interest." The dissent asserts that the State has not provided evidence to "explain how a law that sweeps so broadly can be found to be the least restrictive means of serving any compelling state interest." 

Academically, the decision and dissent each provide interesting reading. The perspectives offered illustrate that constitutional analysis is sometimes complex, nuanced, and subject to various perceptions. However, the value of clarity of analysis and conclusion is perhaps clear in any event. The constitutional analysis of a court is of greater value if the standard applied and factual conclusions are clearly stated and explained. This benefits the parties and the public who may later encounter the decision in seeking guidance and predictability on their own issues and disputes. 

Tuesday, August 27, 2019

Aggressive Without Being Obnoxious

In early 2018, The Florida Supreme Court rendered its decision in The Florida Bar v. Ratiner, 238 S. 3d 117 (Fla 2018)(Case Number SC13-539). Note that is a 2013 case number decided in 2018. It is an intriguing instance of attorney discipline. 

The reader will remember in Florida, the Supreme Court has the constitutional responsibility to decide who may and may not practice law. Article V., Section 15. When allegations of misconduct are raised, they are investigated by The Florida Bar, under the authority of the Court, and the bar may decide to pursue formal charges. In the event that it does so, the Court appoints a Referee (usually a Circuit Judge) to conduct hearings, determine the facts, and recommend both the conclusions as to guilt and what punishment would therefore be appropriate. 

The Court noted that Mr. Ratiner was a twenty-eight year attorney, admitted in 1990. There had been "Three disciplinary cases brought against" him including the one under consideration. In 2010, one had resulted in "a sixty-day suspension and a public reprimand, to be followed by a two-year period of probation," and the second in 2015 "resulted in a three-year suspension." 

One allegation in the 2013 case was that Mr. Ratiner had said “Lie, Lie, Lie” in a hearing "while opposing counsel conducted the direct examination of Ratiner’s law partner." Mr. Ratiner denied saying this, then denied remembering saying that. However, the judge presiding at that hearing testified that she had heard him say it. The "referee found Ratiner guilty of violating Bar Rules 4-3.5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal) and 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct)."

In the same hearing, the Bar alleged Mr. Ratiner "repeatedly kicked the leg of counsel’s table where he was seated." One of the opposing attorneys testified this was “in a manner that was disruptive of the proceedings.” The referee concluded that the kicking was “very loud.” The presiding judge testified that she addressed this with counsel in a sidebar, and then "ended the post-trial hearing" as a result. The Referee concluded that Mr. "Ratiner intended to disrupt the proceedings and was therefore guilty of violating Bar Rules 4-3.5(c) and 4-8.4(d)"(see above). 

The Referee also noted "testimony from various witnesses" regarding misconduct. This included Mr. Ratiner exceeded the agreed upon time for closing argument in the case. When he "exceeded his time," the judge "gave him a few additional minutes," but Mr. Ratiner "stated that he would take whatever time he needed." 

The trial judge also saw Mr. Ratiner "wrinkling and throwing’ documents." When the judge "reprimanded Respondent,” he denied doing so despite her seeing the behavior. The trial judge "described Ratiner’s behavior at trial as 'awful,' that he was not respectful to the court or obeyed orders, and that she was ‘appalled.’” She described him as "disruptive, that he was a ‘bully.’" The Referee concluded that his behavior was "rude, overly aggressive, unprofessional and at times appeared to try to intimidate the witness.” 

Ultimately, "the referee recommended that Ratiner be suspended for a period of three years." Because Mr. Ratiner was at the  time of the referee's decision serving a "three-year suspension" from another of the cases, the referee recommended that the two suspensions be served simultaneously (at the same time, effectively minimizing any punishment for these allegations and findings). 

The first discipline for Mr. Ratiner was rendered in 2010, The Florida Bar v. Ratiner, 46 So. 3d 35 (Fla. 2010). That involved a deposition during which there was discussion of certain documents or information that were/was on a laptop computer, rather than printed on paper. The situation devolved after another attorney tried "to place an exhibit sticker on the Respondent's laptop computer." That led to lost temper, "speaking forcefully," and was described by that referee as "conduct . . . outrageous, disruptive, and intimidating to the witness, opposing counsel, and other persons present." The exchange was recorded, and thereafter was viewed on the Internet by others in Florida. 

The referee in 2010 "made two alternative recommendations as to discipline." The first was disbarment, in support of which the referee concluded that is appropriate if someone exhibits "unfitness to practice law," which the referee concluded The Florida Bar had established. The second recommendation was a "two-year suspension" with the condition that he "attend mental health counseling to address anger management," that he be accompanied to future depositions unless co-counsel was present, and that he apologize to those involved in the deposition that deteriorated so. The Court elected a 60 day suspension, two years of probation with specific conditions (similar to the referee recommendations). 

Thereafter, the Court suspended Mr. Ratiner for three years in an unpublished disposition recorded at 177 So.2d 1274 (Table)(Fla 2015). It was this suspension that Mr. Ratiner was serving when the 2018 decision of the Court was published. 

In 2018, the Court opinion discusses Mr. Ratiner's history. The Court concluded that the referee's findings of fact were "fully supported by competent, substantial evidence." Noting that Mr. Ratiner disagreed with that evidence (other witnesses testimony), the Court reminded “an attorney cannot meet his burden (of proof) by simply pointing to contradictory evidence when there is also competent, substantial evidence in the record to support the referee’s findings.”

The Court then addressed the recommended "sanction, a three-year suspension to run consecutive to Ratiner’s current three-year suspension." The Court noted it "will generally not second-guess the referee’s recommended discipline." The Court, however, concluded in this instance the recommendation was "contrary to Standard 2.3"; “Suspension is the removal of a lawyer from the practice of law for a specified minimum period of time. . . . No suspension shall be ordered for a specific period of time in excess of three (3) years.” By imposing a second three year suspension, the Court concluded it would effectively be imposing "a six-year suspension." 

The Court in 2018 then discussed the second discipline, the three year suspension in 2015. There, Mr. Ratiner was in a document review when he referred to one of his opposing counsel "as a “dominatrix” and stated “you must enjoy dominating people.” The Court noted it had concluded that comment "whether knowingly or with callous indifference, did disparage, humiliate, and/or discriminate against another lawyer." Having been shown a document in that review, Mr. Ratiner demanded a copy. When that was refused, he "attempted to grab the document." He thereafter "continued to attempt to forcibly take the papers." A security guard had to intervene. 

The Court concluded that there was "a pattern of similar misconduct." Despite Mr. Ratiner's consistently proclaiming his innocence, and denying "objectionable, disrespectful conduct over the years," the Court concluded that his conduct was "completely unacceptable." It concluded that his "intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards." The Court noted that "one can be professional and aggressive without being obnoxious." It stressed the value of "treating judges and opposing counsel with civility."

The Court admitted that it "has been discussing professionalism and civility for years." It explained that "if we are to have an honored and respected profession, we are required to hold ourselves to a higher standard." And, thereupon, the Court concluded it was "left with but one course of action, and that is to disbar Ratiner."

The decision is worthy of review for several reasons. First, tempers will flare, and it is not uncommon for feelings to be hurt in litigation. Everyone involved should learn to recognize the onset of such emotions, and would be well advised to take a break to avoid them. Second, childlike behavior has no place in a legal proceeding. Editorializing during someone's testimony and disruptive noise making are but two examples. Third, behavior in hearings is important, but other behavior in correspondence, discussion, and depositions is also important. 

Fourth, it may be that we are all perceived by others in a way that we do not perceive ourselves. How other witnesses to our behavior perceive us may be critical. And finally, a lawyer should take heed when there is some incremental punishment imposed. A warning has a purpose, but may be worthless to us if we fail or refuse to acknowledge it. Continuing a course without correction may lead to increasingly serious implications, including loss of the privilege of practicing law.

How we treat others is critical to the practice of law remaining a profession. The profession is dependent upon our recognition of and adherence to the Rules of Professional Conduct. The Court acknowledges the obligation of zealous advocacy and even the need for aggressive pursuit of a client's rights. But, it cautions us that advocates can be "aggressive without being obnoxious." It is a quote worthy of periodic consideration.

Sunday, August 25, 2019

What was Said and Heard

Perceptions matter. We can discuss intent of communications, but in the end those who see or hear those communications may have perceptions different than the intent. 

Recently, a manufacturer made the news for withdrawing a product from the market, it was emblazoned with what has come to be referred to as the "Betsy Ross Flag." CBS News reported that the decision to pull the product from stores was based upon a celebrity complaint to the company that this flag "heralded back to a time when black people were enslaved and that it has been appropriated by white nationalist groups." Accepting that may not be the only perspective, it is important to acknowledge this as someone's perspective. 

There were other perspectives in the news. FoxNews reported that Antidefamation League data might not support the perspective of supremacist appropriation of this flag. One official of that organization was quoted: "it's not a thing in the white supremacist movement.” Various Internet cites and one news radio station thereafter published pictures of the flag on display at President Obama's inauguration. Thus some perspective seemingly at odds with the celebrity's assertions regarding the flag. 

Coincidentally, another celebrity made the news that week for celebrating on a sports field. After scoring, she "pretended to take a sip of tea with her pinkie up," and "appeared to be 'trolling' her (British) opponents," as reported by Sporting News. The British Broadcasting Company also covered the story extensively, as it was a British team against which this sports celebrity was competing (tea apparently holds a special place in the UK). There, the celebrity downplayed her exhibition, and claimed she intended a different message: "that's the tea - that's the situation" is what she said she intended, not a swipe at the United Kingdom as a whole. 

I was reminded in these of Cohen v. California, 403 U.S. 15 (1971). This is a favorite of law school professors, as they instruct regarding the First Amendment to the United States Constitution. Paul Cohen was arrested for walking through a California courthouse wearing a jacket upon which was emblazoned a phrase similar to "Duck the Draft," but which used a more offense word The Court specifically noted that at the time "there were women and children present in the corridor." Cohen, 16. Many will remember that language generally at least seemed more polite in some contexts those many years ago. 

The Cohen Court reminded that written expression is "speech," the protection of which may be recognized by the First Amendment to the United States Constitution. As such, the Court explained, the speech could be constrained based upon the "manner in which he (Cohen) exercised that freedom, not as a permissible prohibition on the substantive message it conveys." Mr. Cohen's conviction for "maliciously and willfully disturb(ing) the peace or quiet of any neighborhood or person" was therefore reversed by the Court. 

Cohen is a long-standing precedent that establishes that we may all periodically be exposed involuntarily to the thoughts of others, and that we may sometimes disagree with or even be offended by them. There have been a fair number of generalities drawn from Cohen, and it has therefore historically been both followed and distinguished by various courts. As an aside, the Court has similarly concluded that actions (such as "sipping the tea") are also speech. see Texas v. Johnson, 491 U.S. 397 (1989). 

Another interesting Supreme Court analysis of free speech is Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675. There, the Court reviewed constraints on speech, not in a public forum like the courthouse in Cohen, but in a school. It noted: 
"the role and purpose of the American public school system is to prepare pupils for citizenship in the Republic ... It must inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.” Bethel at 681 (1986) (citations omitted). 
The "where" of speech is thus an element perhaps worthy of consideration in certain situations. Thus, what is protected speech in one location or setting, might nonetheless be appropriately regulated in another.

As in so many other aspects of society, there is conflict. One person's right to privacy may have to be weighed against some other person's right to expression. What is appropriate in a courthouse may be less appropriate in a school. The subject is complex. The U.S. Supreme Court has also said that we, the offended, have some duty to avoid the offense.

In 1975, the Court reviewed enforcement of a Jacksonville, Florida ordinance under which a drive-in theater was prosecuted because intimate scenes could be observed by those outside the theater (yes, there was a time us old people were young people, and lacking a world wide web, we parked our cars in front of huge screens and watched movies in a semi-social, semi-private environment that is simply alien to today's youth). The Court said: 
"When the government attempts to regulate the content of otherwise protected speech to protect the privacy of the unwilling viewer, generally the burden falls on the viewer to avoid bombardment of his sensibilities by averting his eyes . . .. Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). 
And, similarly our ears. In the end, perhaps much of offense comes down to perspective. One person's art may be another's obscenity. One persons poetry is perhaps another's smut. One might intend to say "that's the situation" with an imaginary tea cup tip, and instead might off-put an entire kingdom. One might perceive the Betsy Ross Flag as appropriate inaugural decoration or as a symbol appropriated by "white nationalist groups." One might perceive any particular slogan or symbol as positive or negative. But what one perceives may well be what is true in that particular personal perspective alone. Similarly to the the old adage "beauty is in the eye of the beholder," perhaps offense is as well? 

Whether the observer or listener is correct may matter less than the person's belief (most would find it unlikely that President Obama adopted and displayed a symbol, the Betsy Ross Flag, appropriated as alleged regarding the shoe). If one is offended, the intent of the speaker (or person publishing the image or symbol) may mean little to that offended party. For whatever reason, be it context, location, or reception, any message may cause offense even without the intent of the speaker/publisher. There is some tendency to dismiss such singular personal perceptions, or even to deride those who complain. It is possible that one could be offended, however, without necessarily being oversensitive. It is also possible that some in society may actually be too quick to feel offense.

Does it matter that the message received is not necessarily the message sent? Alan Greenspan was quoted once as saying "I know you think you understand what you thought I said but I'm not sure you realize that what you heard is not what I meant.” I recall that being on various posters over the years. Does it matter what one means? Does intent matter? Or, should a person be judged based upon the individual perception of some viewer or listener? 

In the end, there is much that offends others. In various professional environments, I have known people to be offended by the volume of fragrance someone wears, where or how someone parks their vehicle, verbal statements someone makes (including self-deprecation), lapel pins that are worn, holiday decorations and other personalty that is displayed, and more. There is plenty about which one might be offended in a professional environment. And, I would posit that most likely much of this has reasonably innocuous intent (though I vividly recall a coworker I once had that would always wear his Dallas Cowboys' jacket to work whenever that team defeated the Redskins; coincidentally, that's a name has been deemed derisive by some according to CBS News). 

Are we all to be perpetually offended? Or, could we all take a step back and consider that it is perhaps possible that what offends us may not be intended so by others. Even if we might sincerely perceive offense, might we favor our cohabitants with the benefit of the doubt? Perhaps something is an intended offense, and perhaps it is merely a lack of courtesy or consideration? Maybe we are individually offended for reasons some speaker could never predict? In the end, none of us can anticipate how others will perceive our words, actions, or dress, more or less control it. Despite this challenge, we are all going to have to coexist. 

As this was written, yet another story made the news. According to FoxNews, a group of police officers were asked to leave a restaurant, because their presence cause another customer to "not feel safe." Is there an individual right for each of us to be unequivocally happy and content? If someone is wearing Metallica shirts, might I invoke my perceptions and ask management for them to be removed (you know how heavy metal fans are, LOL; if you are offended, please remove Metallica/heavy metal from this paragraph and insert music which you do not personally care for; one person's Metallica may be another's Justin Bieber?). 

From a personal perspective, thus, it is a difficult challenge to balance the expressions of one against the perceptions of another. Commercially, it may be easier, for a shoe company to simply elect to forgo the potential for conflict, perceptions, and controversy by not selling a particular flag shoe. But in other commercial enterprises, removing any particular person or group, for the comfort of any other, may be a course fraught with peril both social and legal. Irrespective of the intent of such an enterprise, the perspectives of various consumers may be affected. 

The challenges of these conflicts will persist. There is palpable frustration both between various people and groups, and also frustration with the perceptions of some people and their reactions. Perhaps it would not hurt any of us so much to respect that others do not share our feelings or even our perspectives? Maybe we can choose to avert our eyes (or ears) at times? Maybe we can choose to give the benefit of the doubt and hope that those who offend us do not necessarily mean to do so?

Years ago, Rodney King was quoted regarding our society and some of our challenges. According to the Mercury News, his plea is engraved on his gravestone. Perhaps it bears us repeating his query periodically: "Can't we all just get along." Or, if that's too hard, can't we all at least just try? 

Thursday, August 22, 2019

Demonstrate Respect

I recently ran across an order regarding a procedural motion, to compel answers to some certified question(s). The underlying issue was neither complex nor worthy of further discussion. But, in the course of that motion hearing, the assigned judge was called upon to review a deposition that the parties had taken. The judge was not impressed with the statements that were reflected and elaborated in the order a bit regarding professionalism. 

The subject of certified questions may be familiar to attorneys, but new to others. The deposition process is likely familiar, a process of essentially interviewing a witness on-the-record. During that process, questions may arise that are not answered either because of reluctance of the interviewee or because of an objection or instruction from another party or attorney. The attorney asking questions may wish to preserve or mark some question for later review by the judge in the case. To do so, the attorney would merely say "certify the question."

In this case, there were some such questions. The attorney conducting the deposition "certified" the questions (the judge labelled this attorney "Attorney 2"). And thereafter filed a motion with the judge for those questions to be reviewed. I doing so, note that the certifying attorney was seeking to compel an answer, asking the judge to order an answer to the question. 

After adjudicating the motion, the judge added a "REMINDER OF FLORIDA BAR RULE AND GUIDELINES REGARDING PROFESSIONAL CONDUCT" to the order. There, the judge noted the following:
Attorney #1 laughed at Attorney #2 when Attorney #2 certified a question.Attorney #1 asked Attorney #2 "whether she was new to the practice" when she certified a question.Later, Attorney #1 made insulting and accusatory statements about Attorney #2's client, including accusations of lying and fabrication. 
Attorney #1, who belittled the knowledge and acumen of Attorney #2 did not prevail defending the motion to compel. The Judge ordered that the certified questions be answered. In other words, the attorney that was belittled and laughed at during the deposition was found to be acting appropriately and the judge ordered that her questions should be answered. 

The laughing and insulting attorney, it turns out, perhaps did not know better than Attorney #2, whom she/he accused of inexperience. Maybe there is an inclination to doubt the young? But perhaps it behooves us all to ignore age, perceptions of experience, and other distractions and focus on the substance of that in which we are engaged, like that deposition? Perhaps Attorney #1 lost site of the substance, distracted by the irrelevant?

The assigned judge's order cited the "Preamble to the Rules of Professional Conduct of the Florida Bar." This indicates that "a lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials." The judge cited The Guidelines for Professional Conduct of the Florida Bar, noting that it urges courtesy and civility. The judge noted that lawyers really should avoid "disparaging personal remarks, or acrimony toward other counsel." Finally, the judge noted that counsel "should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer"

The judge closed this section of the order stating that "this order reminds attorney __________ (#1) of the above professional conduct requirements when conducting" a deposition. The judge noted incivility and made it a matter of record in that case. Several years ago, the Florida First District Court decided that a workers' compensation judge cannot discipline attorneys. Pace v. Miami Dade County Sch. Bd, 868 So. 2d. 1286 (Fla. 1st DCA 2004). A judge could refer conduct to The Florida Bar for its consideration, but cannot discipline. But, a judge can remind. 

Reading this order reminded me of a deposition I read some years ago. Everyone involved there was attending that deposition telephonically. The attorneys expressed difficulty with hearing each other and the witness. There was ample demonstration of auditory challenges in the deposition transcript. I have literally read thousands of deposition transcripts, and it is noteworthy that I still remember this one in particular. I remember it vividly because the deposition ended with a terse and excited exchange between the two attorneys. 

There were insults. There was a comparison to a farm animal, with a singularly famous propensity for stubbornness. One attorney suggested that the other might be well served to strive to extricate her/his cranium from another portion of her/his own anatomy. That attorney, in response, made reference to the first attorney's parentage, but in a disparaging manner. In short, the situation got out of control.

In the process of that exchange, the witness apparently exited the call. The final lines in the deposition memorialized one of the attorneys uttering an exasperated farewell followed by the sole remaining attorney repeating "hello" and the names of the witness and opposing counsel several times. But, in the words of Phil Collins, there was "no reply at all." The remaining attorney concluded with something like "I guess the deposition is over Ms./Mr. court reporter, we'd like this transcribed." 

The recurrent theme of all of this is simple, a lack of professionalism. But, whether in the presence of the judge or in the course of a deposition, all of those things that are said will be heard or read. Laughing at, insulting, demeaning or disrespecting opposing counsel or a witness is unprofessional, rude, and inappropriate. Does it make sense to distract the finder of fact with childishness and pettiness? As an advocate that is seeking a decision in one's favor, how does it make sense to be overbearing, obnoxious, offensive, or mean? Is there some (mis)conception that such tenor, words, and behavior will influence the judge (or in other systems a jury) to agree with you?

I am persuaded that such situations or lapses are not planned. No one expects to lose her/his temper. But it happens. When it does, there has to be some constraint. It does not enhance the lawyer's case to allow some frustration or situation to escalate. Lawyers must understand that their behavior in a deposition should be the same as behavior in a hearing. After all, that verbatim transcript or recording might well end up in a hearing before the case concludes. And, the attorney (#1) might not be in the right despite her/his conviction or bravado. 

It would behoove us all to remember the obligations to professional demeanor, to focus on the question or issue rather than some perception of the personality, age, experience, or other characteristic of the opposing party or attorney. Temper will be lost, but attorneys should recognize that and remain committed to recovering from it as rapidly as practical, to regaining composure, to mending any results such as belittling language, sarcasm, or insults that may have slipped out during that loss of composure. 

Tuesday, August 20, 2019

Board Certification 2019

I have previously written regarding board certification. See The Old Gray Mare She Ain't What She Used to Be. Back then, in 2012, there were 207 Florida Lawyers Board Certified in workers' compensation. 

This year I return to the subject of board certification. I congratulate the individuals who recently passed the strident examination, and joined the extremely small group of 190 Board Certified Worker’s Compensation attorneys in Florida. According to The Florida Bar, 88,741 attorneys are "eligible to practice" in Florida. Another 3,802 are members "in good standing," but not currently practicing due to reasons such as deferral for military service (163), exempt from continuing education as they are non-resident (2,083), or they are judges (1,469). Another 14,238 are neither eligible nor in good standing. 

Of the 90,210 (88,741 eligible plus 1,469 judges), only 5,230 (5.7%) are Board Certified in any specialty. The biggest groups of Board Certified attorneys are found in Civil Trial (1,083), Real Estate (450), and Criminal Trial (379). The smallest groups are Antitrust (9), Adoption (28), and Aviation (44). Since I wrote about certification in 2012, various groups have respectively seen growth or reductions. The chart below illustrates the membership figures from 2012 and now. Those in green have increased in membership since 2012 and a few, in red, have decreased. Though workers' compensation is in red, the decrease has not been significant. 

Certification requires a volume of experience, including representation of clients at no less than 25 contested hearings. Some may perceive that number as less than monumental. In truth a great many disputes, including the vast majority of Worker’s Compensation issues, are resolved by parties short of trial. Therefore a lawyer may spend years compiling such a record. 

Over the years, I have heard a great many attorney advertisements in which a lawyer's purported ability or willingness to proceed to trial is touted. But the reality of litigation, criminal, civil, Worker’s Compensation, and otherwise is that cases tend to resolve short of trial. Some of that propensity toward resolution is likely  driven by adjudicators. If a judge is thorough, consistent, and predictable that provides parties the information they need to effectively resolve their disputes without trial. On the contrary, if a judge is none of these, parties may be left with significant doubt and as a result concern. Thus, parties may resolve or settle based upon the strength of their knowledge.

But I pause this year for a couple of reasons. One, for the first time in several years, there is a new board-certified attorney in Pensacola Florida. Much transpires around the state, and while I have the upmost respect and admiration for many communities, Pensacola does somehow remain a focus for me. For many years, there were multiple board certified attorneys in Pensacola. But as time passed, those attorneys have either concluded careers, or elected not to renew this certification. It is encouraging to see a new generation appreciate the value of this hard-earned recognition. 

As I reflected upon this, it occurred to me that 2019 marks my 20th year as a board-certified Worker’s Compensation attorney. One attorney recently mentioned to me that because “you don’t practice,“ maybe that’s not really the same thing. And in truth, perhaps it is not. It has been a long time since I represented a client or tried cases.

The Four new to the list of certified attorneys this year are Jennifer G. Bellinson, Brian P. Carter, Eric M. Christiansen, and Nicolette E. Tsambis. Below is a short biography and photos.  

Ms. Bellinson is with the Law Offices of Jason L. Weissman in Hollywood, Florida. She is a 1996 graduate of the University of Miami School of Law, and was admitted to The Florida Bar in 1996. 

Mr. Carter is a shareholder in the firm Michles & Booth in Pensacola, Florida. He is a 2001 graduate of the University of Florida School of Law, and was admitted to The Florida Bar in 2001. 

Mr. Christiansen is an associate attorney at Lancaster & Eure in Sarasota, Florida. He is a 2003 graduate of the University of Florida School of Law, and was admitted to The Florida Bar in 2003.

Ms. Tsambis is with the Smith, Feddeler and Smith firm in Lakeland, Florida. She is a graduate of the Florida A&M University College of Law, and was admitted to the bar in 2008. 

I am pleased to congratulate each of them on attainment of this professional achievement. 

It is notable that Worker’s Compensation is one of the few board certifications which can be maintained by an adjudicator. In that regard, it is appropriate to recognize that there are ten certified attorneys currently serving as Florida workers' compensation judges. They are: Frank Clark (FTM), Robert Dietz (MEL), Thomas Hedler (WPB), Jeffrey Jacobs (MIA), Mark Massey (TPA), Stephen Rosen (SPT), Thomas Sculco (ORL), Margaret Sojourner (ORL), and Jack Weiss (FTM). In addition, two of the OJCC mediators are Board Certified: John Brooks (DAY) and Dawn Hayes (PSL).

Sunday, August 18, 2019

"Laugh and the world laughs with you"

There are various reasonably famous quotes on humor. The title of this post is a quote attributed over the years to Ella Willcox, and listed by at least one as a common idiom. There have been various takes and adaptations of this; Fakeer Ishavardas is credited with “Laugh, and the world laughs with you. Don't, and the world laughs at you.” Another is that "laughter is the best medicine." That one is common in various contexts, but I am uncertain of its original source. 

There are any number of great quotes out there about humor. I recently ran across an old Robin Williams performance on the 1970s series Mork and Mindy. In it, the lead character is a displaced alien suddenly living in Boulder, Colorado. The fish-out-of-water alien's earth experiences and perceptions on the show are balanced by the wisdom of the other lead, Pam Dauber, playing Mindy. There are various explorations of the human condition displayed as Mork strives to adapt to an unfamiliar environment. In one episode, the writers explore the challenges of humor, with an emphasis on jokes that demean or denigrate a group or individual. 

In one of the jokes, Mork provides Mindy with a gift, a light bulb. When she questions the gift, he explains “I wanted to see how many of your family it takes to change one.” Fair warning, that is probably the least obtrusive of the examples the writers selected for this exploration of Mork’s naiveté regarding offense. Certainly, there is plenty about this old sitcom episode which is offensive, but the theme illuminates the offense and reminds us that humor can be offensive to individuals or groups. For more on that, a good read regarding intentions and humor is Jokes, Excuses, and why Words Matter. 

The Florida First District recently rendered a decision in which it discussed humor. It was not a workers’ compensation case, but was forwarded to me by a workers’ compensation judge. Coincidentally, the same week an administrative law judge forwarded me an article on judicial humor from an American Bar Association (ABA) publication. As a side note, there are many who misunderstand the ABA, believing that the organization speaks for the American legal profession; however, it is merely another voluntary association of which some lawyers are members.

In the First District decision, Cannon v. State of Florida, the Court addressed a dispute for the third time. Both of the two most recent decisions are worthy of consideration by adjudicators. In 2016, the Court reversed a trial judge’s denial of a Rule 3.850 motion. The instruction was that a new trial judge conduct “an evidentiary decision” regarding one of the party’s perception that the original trial judge was biased, based upon “an offhand comment the judge made about one of her attorneys.” Cannon v. State, 206 So. 3d 831 (Fla. 1st DCA 2016).

That new judge conducted this hearing as instructed, and concluded “the (original) judge made the comment in jest.” Therefore, the new judge concluded that the results of that proceeding were not “unreliable” based upon the overall tenor of those proceedings and resulting order, which was affirmed by the District Court on the first review of this matter. 

Thus, on this third trip to the District Court, the denial of that post-conviction motion was affirmed. But, the Court elected to dip its toes into the subject of humor. It stated that “this case highlights why judges should avoid attempts at humor while on the bench.” It acknowledged that the motivation for humor might be the “laudable purpose of reducing unnecessary tension in the courtroom.” However, as well-intentioned as the attempt at humor might be, the results may be tangible and significant. 

The Court noted that “the judge’s offhand comment here spawned years of post-conviction litigation and multiple appeals in this case.” And, the Court suggested that much time, effort, and expense might have been avoided “if the judge had simply exercised a little self-restraint.” 

The Court was critical of humor generally. It concluded that “judicial humor is rarely as funny as the judge thinks it is, and judicial humor is never funny when it is at the expense of an attorney or a party”; not dissimilar from the writer's theme in the Mork and Mindy episode noted above. The Court cites to a recent decision in which the Utah Supreme Court concluded that “if someone laughs at a judge’s joke, there is a decent chance that the laughter was dictated by the courtroom’s power dynamic and not by a genuine belief that the joke was funny.” See In re Kwan, 2019 WL 2223543, at *3 n.1 (Utah 2019).

The overall tenor of the decision suggests that this panel of the District Court believes that humor simply has no place in the hearing or trial. And yet, there has been humor, parody, and even verse in judicial opinions, as noted by The University of Washington School of Law

The potential negative impact was explored several years ago in the University of Miami Law Review, titled Imagery, Humor, and the Judicial Opinion. It quotes William Prosser, a notable legal scholar and author, reminding that "Judicial humor is a dreadful thing." He goes on to say that judicial "jokes are usually bad" and that "the bench is not an appropriate place for unseemly levity." He concludes that "the robed buffoon who makes merry" at the expense of someone in the courtroom "should be choked with his own wig." A bit over-the-top perhaps, but one is left understanding precisely how Professor Prosser feels. 

As noted above, the Cannon decision was contemporaneous with the ABA article Humor in the Courtroom, no Laughing Matter. There an attorney author expresses an appreciation of "the need for levity in our profession," but reminds that use of "humor in the courtroom is fraught with risk" from even the attorney perspective. He suggests that humor is "intended to establish rapport," but may attempts instead "come off as inappropriate, condescending or made at someone else’s expense."

The author notes the responsibility of the judge. He says that an attorney vying for a laugh, or to build rapport perhaps, may "think that a judge is responding to and even joining in attempts at humor." That perception may then encourage an attorney to "keep up the comedic tone." In this regard, the author similarly points us to In re Kwan, cited by the Court in Cannon and to another decision illustrating humor escalating in a proceeding to the extent that the court's purpose was frustrated. In that instance, an appellate court noted “a courtroom is not the Improv and the presider’s role model is not Judge Judy.” The point being that what makes ratings in television is not necessarily congruent to what makes good due process. 

The author's conclusion is perhaps less than prohibiting humor, but his tone and tenor certainly encourage caution against it. In the weeks since these two instances were published, I have heard several people discuss judicial and attorney humor. Presumably, some of those conversations may have been encouraged by one or both of these publications, or by the Utah Supreme Court admonitions cited. And, it is possible that discussions instead resulted from some other attempt at humor in some proceeding neither cited nor identified but within the speaker's personal experience, remote or recent. 

The point is that humor in legal proceedings is, momentarily at least, on the fore for discussion. According to the opinions expressed, there is no ban on humor, but there is fair warning that it involves peril. Perhaps Professor Prosser's criticism is a bit exaggerated ("buffoon" "choked"), but is his admonition still worthy of our consideration? Perhaps the District Court's best guidance of "a little restraint," is the best course in balancing the seriousness of our proceedings with "reducing unnecessary tension" in some moment. For one undeniable point is that litigation can be stressful and alienating. Perhaps there is a place for humor in it, of the most bland variety. 

In that regard, though, lawyers and judges must focus on absolutely avoiding humor that potentially denigrates any person or group whether present in the proceeding or not. And, that requires remembering that what is offensive is often in the ear and eye of the beholder rather than the speaker. Thus, the propensity for self-denigration is also likely to be avoided (lawyers telling lawyer jokes, doctors and doctor jokes, etc.). 

Thursday, August 15, 2019

Twice Blessed

William Shakespeare is credited with “The quality of mercy is not strained, It droppeth as the gentle rain from heaven upon the place beneath: it is twice blest; It blesseth him that gives and him that takes.” The Merchant of Venice, Act 4, Scene 1. In a similar vein, it has been said that one who represents themselves in a legal proceeding is similarly “twice blessed,” for she/he has "a fool for a client" and therefore also a fool for an attorney. That may be a bit harsh. But in reality, there is likely advantage in having an independent expert providing counsel and advice no matter how skilled or intelligent or prepared a party to a legal proceeding may be.

I was reminded of this recently reading a Florida Supreme Court decision in The Florida Bar v. Brady, No. SC19-39. (July 11, 2019). In attorney discipline proceedings, The Florida Bar as licensing authority decides whether to pursue discipline and acts as prosecutor in the event such proceedings are elected. The Bar is an agency of the Court, prosecuting one of its own members before that very Court. 

The process involved often includes Court appointment of a Referee to conduct a trial on the allegations. Generally, the Referee will be a Florida Circuit Judge. The Referee produces a report following the fact-finding hearing, and recommends punishment in the event that culpability is found. Ultimately, however, the imposition of any penalty is within the discretion of the Court itself. 

The attorney in this proceeding represented himself regarding the charges brought by The Florida Bar. The resulting Report in this case has some notable findings. First, the accused attorney appeared late for trial on both days the hearing was conducted by the Referee. It is never a good idea to be late for hearing. Certainly, things can happen (car trouble, etc.), but it is to be avoided. The Bar called six witnesses and submitted thirteen exhibits. The accused attorney submitted eight exhibits and called no witnesses. See If you are not Perry Mason, Bring Evidence

Following the trial, there was a recess during which the Referee considered the evidence. Then she “made an oral pronouncement,” concluding that “there was clear and convincing evidence to support a recommendation that Respondent be found guilty” of violating seven rules regulating lawyer behavior. 

The Referee immediately then began “the sanctions phase of the proceeding.” The Bar presented its arguments and legal authorities. When the accused attorney was then offered an opportunity to respond, he “advised the Referee that he was not prepared to proceed with the sanctions hearing, and requested to adjourn for the day and resume the next morning with his argument.” The Referee denied that request. 

Though the Referee noted that “there was no reason for Respondent to have failed to prepare to address sanctions,” the Referee nonetheless accommodated the attorney. She did not, however, agree to the request to adjourn for the day and reconvene the next day. She “instead provided Respondent with the opportunity to submit written argument to the Bar and the Referee by the” end of the next day. Thus, the attorney had failed to prepare, had sought an accommodation, and was lucky enough to be afforded one. 

The first point here is that attorneys know that they should present for hearing prepared and ready to try the whole case, unless some pretrial order has specifically limited the issues. One cannot unilaterally focus solely upon some singular portion or portions of the issues, in hope that a trial judge will be accommodating. In this case, the attorney was lucky that the Referee afforded this additional time for him to respond. This is particularly true as the attorney did not apparently raise that point when the penalty phase began, but instead seemingly listened to the Bar’s argument and authority to be presented and explained before asking. Some might see such an election as inappropriate, and the request for accommodation as stale.

Instead of taking advantage of that opportunity to file something the next day (an accommodation), the attorney “instead submitted a written motion to the Supreme Court of Florida requesting a mistrial and other declaratory relief.” And, the attorney elected not to provide a copy of that filing to the Referee; failing to file the written argument was was disrespectful of both the Referee and the process. Going around the Referee, without even a courtesy copy, was more disrespectful. 

The Referee thereafter made her recommendations regarding punishment without any argument by the attorney. In failing to prepare and present, in failing to file a writing as the accommodation afforded, the attorney essentially perhaps waived his right to be heard on the issue of punishment. Leaving argument unanswered and unaddressed is rarely a wise decision. That is not to say never, but such a decision should be carefully considered. It may be that such a decision is best for a detached professional rather than a party representing her or his own interests. 

The behavior of this attorney was notable. He was an employee of a law firm, and was later fired. After he was fired, he started a new law firm with a name virtually indistinguishable from that of his former employer, filed notices of appearance in various cases in which that former firm was counsel, contacted some opposing counsel in such cases and informed them to no longer communicate with his former employer, created a “fictitious website,” and “burglarized” that former firm. The burglary occurred “in broad daylight” and was captured on video (a truck was apparently roped to the front door, which was pulled off the building). A safe and computer server were stolen, and the attorney later confessed to “taking the firm's server via text message to” the law firm owner. 

The attorney’s behavior resulted in “multiple felony charges” against the attorney and an accomplice. There was also an injunction entered against the attorney regarding the contact the attorney had with the law firm, its clients, and from interfering with the firm’s business. 

The Referee noted that the “temporary and later permanent injunction failed to alter or even slow Respondent's aggressive and defiant behavior.” The attorney effectively ignored the Circuit Court ordering him to stop the complained of behavior. The details of the attorney behavior are worthy of mention because of the damage such actions can have on an entire profession. There are those who behave poorly, or even outrageously.

But, the pertinent lessons here are: (1) a party should be cautious about representing him or herself. In this regard, it is worth noting that corporate entities cannot represent themselves in legal proceedings through agents (employees, officers, directors), except licensed attorneys; (2) preparation for trial has to be thorough, encompassing all potential issues (absent some order limiting them). Never presume that some portion of trial will be separated or handled at some later time; (3) when one finds themselves short or unprepared and seeks accommodation, one should be thankful for such. If given a chance to respond orally or in writing, take that opportunity. It is simply not advisable to leave your opponent’s arguments or legal authorities unanswered.

Tuesday, August 13, 2019

Smokers Need Not Apply

Seven years ago, in 2012, Delray Beach, Florida "announced a policy that would help the financially struggling city save money – refusing to hire smokers." The RT News reported that "each smoker costs a company or government agency an average $12,000 in health and disability-related costs." That quote did not identify whether that is an annual or "lifetime" expense estimate. The report noted that other Florida cities had already implemented such constraints, citing Hallandale Beach and Hollywood. Seven years later, the Delray Beach website today warns "The City of Delray Beach is a Non-Tobacco Workplace."

The move had critics. Essentially, they complained that "smoking is a legal behavior." They noted that there are various other "legal behaviors that cause risks to the population." Examples noted included "drinking soda, eating fatty foods, consuming alcohol, (and) sky driving." The critics perceived consideration of smoking in the employment decision as unfair and discriminatory. A representative of the American Civil Liberties Union was quoted that "we should be as wary of employers becoming privacy-invading ‘Big Brothers’ as we are vigilant about government crossing that line.” 

The subject came back into focus recently as Dayton, Ohio announced in August that it would likewise implement "a policy that prohibits city employees hired after July 15 from using nicotine or tobacco." CNN reported the announcement and characterized it as "taking unusual measures to create a healthier environment for its workers." Unlike the policy in Delray Beach, which relied upon smokers self-identifying, Dayton "job candidates will be tested during the screening process, and those who test positive must undergo cessation treatment." A second positive test would result in termination, however there will be no random testing. Tobacco and nicotine includes e-cigarettes and chewing. 

Coincidentally, the Dayton effort likewise started in 2012 when officials began "researching the concept of smoke-free workplaces." Some will no doubt find it interesting that seven years has been invested in the path to Dayton's decision. CNN reports that "smoking is the leading cause of preventable death," and that over "7 million people die every year due to tobacco use." Quoting Federal statistics, it concludes that "the United States spends nearly $170 billion on medical care for adults because of it."

Some in Dayton contend that the ban will have minimal effect on hiring. Others contend that recruiting will be a challenge in light of the new policy. The local FoxNews affiliate, Channel 23, reported criticisms similar to those voiced regarding Delray Beach seven years ago, and the restriction of "employees' off-the-clock conduct." Fox reports that "tobacco and nicotine use reportedly is responsible for a significant share of the city's health care costs," but did not quantify it. Surprisingly, this report noted that "multiple experts" questioned "could not name another city in the nation that has ceased hiring smokers and nicotine users." Quick Internet research revealed the Florida cities above, and that the The New York Times reported on this in 2011, focused on hospitals. 

There is also mention in the Fox coverage that "29 states have 'smoker protection' laws," that would prevent similar efforts at excluding smokers. That is echoed by an article on the HRDefenseBlog, that noted although "smokers are not a protected class under federal anti-discrimination laws, statutes in more than half the states and the District of Columbia would potentially prohibit implementation of a policy against hiring smokers." Returning for a moment to the critics references to legal behaviors that involve risk ("drinking soda, eating fatty foods, consuming alcohol, (and) sky driving"), it is unclear whether states have likewise enacted "protection" statutes to prevent or prohibit employer discrimination on those bases (skydiver protection laws?). 

In So Federal Law Matters in Colorado, this blog discussed the litigation following an employee's discharge for failing a drug test related to marijuana. The employee contended that he had been terminated for his "legal" and off-duty activity (using pot). The Colorado court concluded that his behavior was not "legal," as it violated federal law. Some may see that caveat regarding what is or is not legal as notable as regards the conjecture as to what some employer may preclude next (the so called "slippery slope" argument, see FoxNews.com). 

Thus, there is support for the conclusion that Dayton will not be the first city to go smokeless. One might question whether Dayton will be the last, which seems unlikely in light of the allegations as to what medical care for smokers costs. And, the question of what employers may look to next is likely a valid consideration. In the present economy, perhaps there is less inclination to create constraints on the potential employee population. But, as the age of robotics and artificial intelligence progresses, might the labor demand element of that equation become less influential?

Likely as clear is that the debates regarding individual rights, their impact on the rights of others and on society in general will continue. Whether examples such as smoking are isolated outliers or become the beginnings of trends will be seen in time.

Sunday, August 11, 2019

Pre-Conference Thoughts at WCI

I titled this post poorly. I thought I was going to write about what is going to happen this week, and was inexplicably drawn as much to what already happened. Such is the peril of a wandering mind with free access to the World Wide Web. 

The 2019 WCI kicked off yesterday with the annual Give Kids the World (GKTW) service day. Sure, the opening session of the conferences is still over 24 hours away. I remember when the opening session was the start of this conference, but that has been a few years. Slowly, we have seen the agenda ease into the weekend before. In my limited perception, that started with the Zehmer Moot Court competition on Sunday afternoons; it has been going on for 32 years. Later, the GKTW work day began, and later still the Professional Mediation Institute moved its programming from Wednesday to a Sunday/Monday combination. What used to be a Sunday trip to Orlando has evolved to a Friday drive. 

After these various evolutions, there has been further change. With so many present for the GKTW workday, the suggestion was made for a fundraising dinner, or "gala" for GKTW, and that has become a staple of Saturday night. The Moot Court has grown and expanded (24 teams from 9 states this year) and that has necessitated addition of a quarter and semi-final round added to Monday mornings. A few years later, the idea of spiritual well-being was raised, and a group of volunteers created the Prayer Breakfast program on Monday at 7:00. 

New partnerships evolved over the last ten years also. Two independent colleges became integral to the WCI. First the National Association of Workers' Compensation Judiciary (NAWCJ) for judges. This is the only judiciary college in the country that caters to the workers' compensation adjudicator. Later, the Southern Association of Workers' Compensation Administrators (SAWCA), which had begun hosting its regulator round table on Monday afternoons at WCI, began a regulator college. Both of these individual and special curricula begin first thing Monday morning as well. 

Thus, before the "opening bell," on Monday at 9:00, the WCI will have been up and running in fact for days. And, as I reflect this morning, those days are really a great part of this experience from my perspective. I will touch on each briefly.

The GKTW work day is an adventure. First and foremost, it is a tremendous honor to be associated with such an organization. Last year, I detailed the organization and my 2018 experience. Although the workday has been a part of WCI for several years, 2018 was my first visit. In 2018 and 2019, I am told that the effort included 1,100 or more volunteers (pictured below, I am in the red circle). Consider that in context, over 1,000 people descending on this charitable oasis and performing a morning of labor. It is simply awesome that so many could find the moment to spend helping those in need. It is an endorsement of their humanity and our community. 

It is an adventure because, you gather in the Marriott ballroom. The hour is early (thanks to some misinformation, several of us were there at 06:00, about an hour early). We had a chance for collegiality and camaraderie. As folks trickled in, the quite ballroom became animated. There were groans of "where is the coffee," and acquaintances and  friendships were formed and renewed. I saw people I had not seen in person since the last workday. The sense of community and purpose was palpable. 

The Moot Court program is a perennial favorite of mine. I have long participated out of my appreciation for what this endeavor does for the students and for the appreciation of workers' compensation law. It is energizing to see young people so engaged, so enthusiastic, so dedicated, and frankly intense. They are bright, eager, and focused on this little corner of the law. They will present their arguments all Sunday afternoon and Monday morning, with the finals Monday afternoon. If you get the chance, you should stop in for a round. Their presence reminds us all that the next generation is in fact here, and they are absolutely ready to engage and lead. 

The prayer breakfast is a different sort of inspiration. Too much of the conference life is focused solely on the intellectual, the social, and the business. The volunteers that founded the Faith Based Claims Association rightly decided that there is room in our professional lives for spiritual growth and renewal. This group began hosting a prayer breakfast several years ago. It is a chance to renew and share spiritual foundations and connections before the great efforts of the conference, in educating, sharing, and building. And, it strengthens out community. Though envisioned as a pre-conference renewal, the other evolutions above now make its Monday morning timing more of a mid-adventure hiatus and renewal. 

These evolutions illustrate some important points. First, we all know there is education, business, and even some fun at great conferences. But, there is also community. Through these efforts, we both build community and see it at work. Second, within that community, we see relationships and connection. Already this week I have met new people, worked with them in beautifying a community jewel (GKTW), and it has renewed me, invigorated me. Third, we are collectively and individually better when we are giving of ourselves. That can be through any of these and a thousand other outlets, but it is innate to our well being that we contribute. 

I am looking forward to a sea of familiar faces over the next few days. I will strive to reconnect and renew both friendships and acquaintances. But, I will strive to remember the great things among this experience, the opportunity through our individual effort to support and nurture our community, workers' compensation. We are brought together by our professions and their inter-relatedness, but we are strengthened and nurtured by our commitment to each other as people. I hope you too find motivation in that spirit. I hope you will find a way to connect with the great people in this community. I hope to see you this week. I look forward to catching up. Thank you for who you are and what you do to make our community what it is.