Thursday, December 31, 2020

New Year Resolutions 2021

There is something about the end of a year. The promise of a fresh start could be found in any chronology, but somehow we tend to only focus on "resolutions" on an annual basis. If you want to make a new start though, you could do it any day you chose. In reality, the ability and desire to change come down to you. Over recent years, I have successfully engaged in the New Year practice, largely to my benefit. I find myself healthy and more fit than ever as 2020 draws to a close; Therefore fitness, diet, and exercise are not on my list as I have pondered my New Year resolutions for 2021. 

The Washington Post (subscription) recently addressed the phenomenon of making resolutions in "Why do we Make New Year's Resolutions." Note that the Post went with the possessive (apostrophe) "new year's." According to Grammerly, the apostrophe should be for references to the specific day, not the whole year. So, some might argue that my use of New Year is more appropriate (planning to keep those resolutions), while others might suggest the Post's usage is correct as many of those resolutions will die on day two or shortly enough thereafter. The New York Post says that most resolutions will die before January 12, 2021 (that is discouraging). 

As the Washington Post reminds us:
"A New Year's resolution is a decision to do or not do something to accomplish a personal goal or break a habit. It comes at a time when people look back at the past year and make an effort to improve themselves as the new year begins."
Not that improvement can come only in the form of some achievement. Perhaps we are as benefitted merely from our decision to "make an effort?"

According to BestLife, the top six resolutions for 2021 (according to its survey) were:

6. Find love
5. Get a new job
4. Make new friends
3. Travel more
2. Save money/get out of debt
1. Exercise more/lose weight 

So, love I have, and the fitness (6) is excluded already. Maybe my goals for 2021 should be about travel (3), new friends (4), and money (2)?

But remember that if you set out to do one of these (or any goal), you are going to fail. That is not negative, but changing how you engage the world will not happen without effort and you are extremely unlikely to have an undeniable and uninterrupted parade of successes. Admit that you will fail, and then remind yourself of Henry Ford's advice:
“Failure is simply the opportunity to begin again, this time more intelligently.”
Failure is not an end. Do not let it be. If your goal is to lose weight, and you find yourself over indulging on "National Thank God It's Monday! Day" (January 7), don't let that be the end. Just put your bad day of "Monday" feasting behind you and re-engage on that next Tuesday with your original intent and resolve reinforced and reinvigorated. In a nutshell, you can begin a new path forward on any day you choose. You can undertake your goals with new vigor after any falter. 

With no disrespect to the responses summarized above, the editors here at the Workers' Compensation Adjudication Blog compiled a list of possible alternative New Year resolutions for workers' compensation practitioners. 

1. Pick your own mediation date. Each new petition will have to be mediated. In the 40 days post-filing, before the notice is sent, you can see the proposed date/time in the website docket. If counsel jointly contact the mediator before the notice, they can find a mutually agreeable mediation date/time. This is far more efficient than waiting until after the notice and then seeking continuance or rescheduling the hard way (written motion, etc.).


3. Read the order. This one is so simple, the simplicity is deceptive. Read the order. Do what the order says. It does not matter what judge, court, or system issued the order. Read the order. Someone, somewhere, went to great effort to write the order, and to send it to you. Read it. We do enjoy hearing from you, but when your contact is predicated on "what do I do," and the best answer is "read the order," that can be a bit frustrating. 

4. Cite authority. The appropriate way to seek relief is to file a motion. A motion may be your only shot at obtaining relief. Cite authority in the motion (or response) that will assure the assigned judge she/he (1) has authority to do as you ask, and (2) should exercise that authority. 

5. Use spell check. This one is a bit broader, and also includes proof reading. Before you send your motion or letter, read it. Ask your software to review it. Then, ask a coworker to read it. Mistakes are distracting. Poor grammar, spelling, punctuation, and syntax may not move the situation in the direction that you prefer. 

6. Forego the informality. While it is perfectly appropriate to greet someone at lunch by first name, in a legal proceeding, Mr./Ms. LastName is not only appropriate, but necessary. While you may sit in your office and work wonders in your shorts and sandals, they do not belong in the District Office (yes, we will all welcome you back to the District Offices in 2021!)

7. Read the Rules. This is a great precursor to citing them (see "Cite Authority," above). The answer to most questions can be found in the rules or the judge's order. Reading the rules is an excellent first step in planning any request for (or resistance to) relief. Read the rules, cite the rules. It is as simple as that.

8. Actually talk to each other. That should be a "what I really needed to learn" (see below). Before you rush to anger, draft that motion or letter, call opposing counsel (I did not say "contact" or "text"). Call and greet them genuinely. Converse about something innocuous ("how 'bout them Jaguars"), commiserate ("how are you getting along this week?). Then, and only then, discuss your need or discontent. Seek common ground. Only if all this fails, THEN file your motion and involve the judge. 

9. Re-read All I Really Needed to Know, I Learned in Kindergarten. Things are not always as bad as they may seem, but all your bravado and denial will not change that this is a stressful business. Remember these simple tidbits like: "Play fair," "Don’t hit people," "Clean up your own mess," "Say you’re sorry when you hurt somebody," and "Warm cookies and cold milk are good for you." These may make a stressful situation a bit easier to accept and address. 

10. Breathe, exercise, relax, and recharge. A good friend and Comp guru, Mark Pew, reminds us "motion is lotion." Whether you ever want to lose a pound or even need to, remember that we are built to move, not to sit and ponder. Every day get out and stretch, walk, run, skip, or whatever floats your boat (or paddle board for that matter). 

Are these in a specific order? No. Any or all of them may be things you already do. Any or all may help you tremendously or be of no help at all. But, consider them. Moving your practice and routine in any of these directions might make your life simpler, more manageable, and more peaceful. 

I am wishing you the very best in 2021 regardless of your resolutions. I hope you achieve what you seek to. At a minimum, however, let's all resolve to do better at empathizing and being professional in the New Year. 

Tuesday, December 29, 2020

Perils of Appellate Practice

The Florida First District Court of Appeal recently dismissed an appeal in the cause of Tommy D. Lay II. v. KBR WC Claims, 1D19-4171 (LT 13-014638). There is no extensive written opinion that would come to the attention of those who watch the "Most Recent Written Decisions." Though, as an aside, everyone involved in Florida workers' compensation claims (e.g. risk managers, attorneys, adjusters) would be well advised to read those decisions. There is a tool there, and readers can sign up for notifications when new written decisions are released.

However, the Written Decisions are not the only decisions that the Court makes. Practically, the procedural decisions in each case far outnumber the rendered decisions that ultimately conclude an appellate review. The December 7, 2020 dismissal in Lay certainly is both such a procedural decision and an ultimate conclusion. And, it is but one of the procedural orders entered by the Court in this proceeding. 

The matter started in March 2013, the accident date according to a petition for benefits filed June 26, 2013 by an attorney on behalf of Mr. Lay. The OJCC Case Docket demonstrates significant filings over the years thereafter. The matter proceeded to trial more than once, which is not uncommon in the serial process of workers' compensation. See, e.g., Nelson & Co. v. Holtzclaw, 566 So. 2d 307, 309 (Fla. 1st DCA 1990)("Workers' compensation proceedings are, of necessity, often serial in nature"). A final order in 2016 was appealed to the First District, but in September 2017 the Court affirmed the trial judge.

New petitions were filed in 2018 and 2019. A trial was held October 15, 2019 and the final compensation order was entered October 21, 2019 concluding that Mr. Lay's claims were barred by the statute of limitations. The Florida workers' compensation statute of limitations was recently discussed in Statute of Repose Forecloses Claim. Essentially, the statute of limitations requires benefits to be claimed within certain time constraints. Failure to comply with that time limit may bar entitlement to those benefits. 

Shortly after that trial decision, Mr. Lay's attorney sought leave to withdraw as counsel, and the trial judge approved. On November 19, 2019, Mr. Lay filed a notice of appeal. The OJCC served the parties with an estimate of the cost of the record. The "record" in a case is a composite of all of the documents that were placed in evidence, transcripts of the testimony at trial, and other documents that are required by various rules. This written composite becomes the foundation upon which the Court review proceeds. It is incumbent upon the party seeking appellate review to either pay the cost for that compilation, or to seek excuse from that obligation from the trial judge. 

When Mr. Lay did not do either (pay or seek not to), the OJCC issued an order documenting that the deadline had passed without payment, on December 30, 2019. On February 26, 2020, the Court entered a procedural order compelling Mr. Lay "shall ensure the filing of the record or show cause why this appeal should not be dismissed for failure to obey the rules and orders of this Court." In essence, the Court's ability to proceed with review was being hindered by the absence of the record. 

On April 3, 2020, the Court acknowledged Mr. Lay's explanation and issued another order. This directed Mr. Lay "to pay for, and arrange for the transmission of, the record for this appeal within fifteen days of the date of this order." There were delays in the preparation of the record, but on June 9, 2020 it was filed with the Court and provided to the parties. 

In July, Mr. Lay asked the Court to submit additional information. This process is referred to as "supplementing the record," and the appropriate method for that is a motion to supplement the record. Rule 9.200(f). The Court granted that request on August 3, 2020. In doing so, the Court noted "Appellant is notified that his initial brief was due on July 9, 2020. Therefore, Appellant shall serve his initial brief no later than ten days after receiving the supplemental record." 

The Appellant's brief is a written document that describes how that party (the one seeking review) believes the trial judge departed from, or misconstrued the law. The brief is the party's opportunity to explain its contentions and position to the Court. It is the beginning of the path to the party's wish to have the trial judge instructed to do something different from her or his ordered outcome. The brief is critical in any successful appeal. Lawyers know the intricacies of form and process; those who represent themselves should strive to learn these also. But, even a clear, handwritten, document has been known to suffice in some instances. See Gideon v. Wainwright, 372 335 (1963).

On September 1, 2020, the Court entered another order (described in the Court docket) noting that the initial brief had not been filed in July as ordered. It provided Mr. Lay with a new deadline: "Appellant has failed to timely file the initial brief. Within 20 days from the date of this order, appellant shall file the initial brief or, alternatively, show cause why this appeal should not be dismissed." This is notable. The Court had instructed Mr. Lay to file his (by then tardy) brief in the August 3, 2020 order. 

On October 13, 2020, the Court entered an order denying Mr. Lay's most recent motion to again supplement the record. In this order, again, the Court ordered "Within ten days of the date of this order, Appellant shall file the initial brief or, alternatively, show cause why this appeal should not be dismissed." This marks the third time the Court instructed Mr. Lay to file his brief (July, September, October) and thus begin the written process of addressing the merits of his contention that the trial judge had erred. Notably, ten days from October 13, 2020 would expire before the end of October 2020. 

On October 26, 2020 Mr. Lay filed a document explaining why his brief had not been forthcoming as ordered. He apparently, again, asked for the record to be supplemented, which the Court again denied. The Court accepted the filing as a request for additional time, which it granted. The Court instructed in its October 27, 2020 order that 
"Appellant shall serve his initial brief no later than November 30, 2020. Failure to comply with this order shall result in this appeal being dismissed without further opportunity to be heard." 
Lawyers perhaps will note the subtle transition in the Court's language. The Court's orders previously had required ("shall"), but included alternative ("or"). The October order includes no such "or," and the warning is more specific in terms of what "shall" occur if the instruction is not followed. The last order includes a detriment or punishment ("shall" and "dismissed").

On the last day of November, Mr. Lay instead filed a request to excuse his untimeliness and to afford him more time to file the brief. The Court denied that request. And continued: 
"Pursuant to this Court’s warning by order dated October 27, 2020, that failure to serve the initial brief on or before November 30, 2020, would result in dismissal of this appeal without additional opportunity to be heard, and based on Appellant’s repeated requests to supplement the record with the same documents that have already been added to the record, this appeal is hereby dismissed."
There are multiple lessons that may be gleaned from the progression described herein. First, there is the reminder that workers' compensation cases may be litigated multiple times; they can be "serial" in nature. Second, it is not impossible for someone to represent themselves in litigation, but it is not necessarily easy either. Third, the process is, and tribunals are, patient and forgiving at times. However, there may be limits to the patience. Fourth, orders include conclusions but may also include instructions. Those who litigate, for themselves or others, should read carefully for instructions to follow. 

Finally, failure to follow instructions and rules can ultimately result in failure. While the litigation process strives to determine controversies on their merits, non-compliance with orders and rules can result in procedural decisions, such as this dismissal, that effectively foreclose any further consideration or determination. The various orders in this situation suggest that the injured worker was focused upon particular documents, and that they were in the record. Despite this, the worker/appellant repeatedly spent time striving to have those documents added to the record again ("repeated requests"). It is imperative that orders are read, to avoid such misunderstandings. A year after asking for review, the appellant's efforts came to conclusion. 

For those who litigate on their own behalf or for others, the lessons of Lay are pertinent and worthy of consideration. Litigation is expensive, stressful, and challenging. Failure to read and follow orders is likely to only make it more so, and such failure may result in dismissal or denial that is not what a party seeks. 

Sunday, December 27, 2020

Lessons from History

In 1984, Don Henley released Building the Perfect Beast. This was his second solo album, but at the time he was far more famous for his work with the Eagles, a dominant force in pop music. Perhaps the best known cuts from the Beast are "All She Wants to do is Dance" and "Sunset Grill." Of course, the "Boys of Summer" resonated with many. But, beneath the surface was "Driving with your Eyes Closed," and perhaps his deepest ballad - "A Month of Sundays." It is "Driving" that came to memory for me recently, however. 

There, Henley makes multiple references to the French, one of which regards the gentleman and his artistic efforts ("I met a Frenchman in a field last night"). There is some suggestion of individual perspective in reference to the man's art. He seemingly suggests that different people are motivated by different things ("Sometimes it's a country; sometimes it's a girl"), but that "everybody got to have a purpose in this world." We are each about something. 

Henley refers us to two nineteenth century French poets of significant fame, Rimbaud and Baudelaire. Art and poetry are each perspective-dependent. We may each see or hear something different, regardless of the speaker/writer's intent. From my perspective, there is suggestion in "Driving" that Henley perceives challenges to pride and its perils. He refers us to war or politics with "Some guys just got to go and put their rockets everywhere." As that stanza proceeds, he similarly refers us to love with references to The Death of Lovers (Baudelaire) and The Punishment of Pride (Baudelaire). Whether in conquest or love, his focus on the perils of pride are clear. And, the French foundation for the discussion is patent. 

"Driving" has resonated with me over decades. It came back to me when I once had the opportunity to similarly stand with a Frenchman in one of many remaining portions of the Maginot line in eastern France. Coincidently, we were in a field across which the French had built this impressive interconnected system of forts and armaments in the 1930s. Of note, that construction effort was a response. 

The French suffered deeply in a drawn and pitched battle for world supremacy, known at the time as the "War to End all Wars" though later known as World War I as society looked back with the new perspective of the subsequent killing and disaster that was World War II. After that first global conflict ended in 1918, the world invested significantly in defense, including the formidable Maginot Line across the French/German frontier from La Ferté to the Rhine River. Notably, as that war ended, the world faced an influenza pandemic in 1918 that eventually killed somewhere between 20 and 50 million people.  As we ponder COVID-19, that death toll is worthy of consideration. 

In my studies of history, I have heard many references to the Maginot Line, often derogatory or at least dismissive. Its' construction was undoubtedly a reaction to horrible circumstances. France suffered almost two million dead (about 4% of population) in the "War to End all Wars." It suffered among the highest casualty rates. The French were not alone in suffering or reaction. The Germans felt seemingly as threatened, and contemporaneously constructed the corresponding Zigfried Line in the 1930s to similarly defend against French invasion. It was a complex and intriguing time of conflicts, challenges, and destruction. 

Nazi Germany later came to call in France, and the fallacy of ending all wars was too soon demonstrated. Appreciating the engineering and organization of the Maginot Line, Germany elected not to confront those fortifications. Instead, it invaded neighboring (and far less fortified) Belgium, and after a short pause invaded France from there across another border without such fortifications and defenses. Having accomplished this end-run, the Maginot Line was essentially under siege from the rear by June 1940. Though I have heard multiple academics deride the Line, it is hardly fair to fault its design or intent. Its failure was not there, but in the failure to predict how France's enemies might avoid its might. The next threat that is faced may not always mimic the last. 

Surrounded, the French surrendered the Maginot Line. This, the Frenchman in a field once lamented to me, was and remains a source of great discomfort and disappointment. He rushed to assure me, despite my not having raised such a topic, that the French were not cowards. He focused on his perceptions of their pride and esprit de corps. His nationalism and patriotism were patent in his animated defense of the French troops' honor and bravery. His regret at the fall of France in 1940 still palpable some 80 years later as we quietly discussed it there in the monument the Line has become. 

I reflect upon the implications as we near, hopefully, the beginning of the end of our war on COVID. Some are hopeful that this is the pandemic to end pandemics? We have undoubtedly suffered an attack on our livelihood and humanity. SARS-CoV-2 has assaulted us all in some measure and caused tremendous human suffering that we might readily measure in death, casualties, or mere economic impact. Societally and personally, it has been a vicious and prolonged incursion; some believe its impacts will be long-lasting and significant. We face 2021 with high hopes that science will deliver us from this peril, that vaccination will return us to normalcy. I reflect on CNN reporting last March the scientists assurances that it is impossible to produce a deployable vaccine within a year, that it would require at least 12 to 18 months. I am pleased they were so wrong as deployment is underway and more products seemingly imminent. 

Certainly, I share the hopes and optimism for 2021. But, I wonder beyond that what we as a world will do to prepare ourselves for our future. Can we become better at foreseeing the potential for such infections in the future? Almost certainly, there will be reaction in years to come. Perhaps equipment will be stockpiled such as respirators and personal protective equipment (PPE). Institutions and organizations may evolve in their preparedness or structure. It is possible even that individuals will become more cognizant of preparations and readiness, with greater supplies of things like toilet tissue and hand sanitizer maintained at home. 

However, people seemingly have short memories. Time and again in the southeast we suffer the ravages of tropical cyclones. After each of the major landfalls, it seems folks suddenly take hurricanes seriously again. But, then those memories fade. People slowly lose their assiduous attention to evacuation warnings. The day-to-day overtakes and consumes our focus. We become less likely to listen to the authorities or forecasters. We may even become complacent enough to neglect to appropriately secure construction equipment when the next storm threatens. We are seemingly persistent in a cycle of fear, preparation, compliance, fading, complacency, and resulting disaster. 

Will it be thus for viral infection? Will there be some relatively brief post-COVID period in which we assiduously respect the potentials for viral onslaught? For how many years will we stockpile supplies? How long will we remember 2020 and appreciate its impact upon us? When will memory fade, whether that means individually, or as generations that did not experience 2020 are born and become weary of our "walk to school in the snow" reflections on history?

In the short term, will we be inclined to build a fortress in preparation for the next potential exposure, focused upon the way this infection developed, our own figurative Maginot Line? Will such preparation or precaution be too focused upon the last threat and in that perhaps lack imagination as to the next? Will we build a figurative Maginot Line only to learn too soon that our fortress against the last threat is not up to the next one? Are we up to individually and collectively comprehending that this world is capable of persistently challenging us, individually and collectively, in sometimes quirky and unexpected ways?

The relief of the vaccine is palpable in conversations I have had recently. Several have told me how the New Year "has to be better." They see relief on the horizon and a "return to normal." I am hopeful that they are correct. I am confident as 2020 ends that societal improvement looms large on the horizon. I am cautious that the coming recovery will not address everyone or all of the ills. And, I harbor concerns that our attention and focus will be too short-lived, that we will quickly begin to ignore our recent lessons in social distancing, preparation, and disinfecting. 

2021 offers promise and hope. Certainly, however, there is likely much about which to remain deeply concerned as we move forward into it. Let us perhaps learn from the mistakes of history as we mover forward in our recovery from this onslaught. Let us remember our lessons, the suffering, and the challenges. But, let us also remember the fantastic efforts of those who saved lives, those who developed the vaccines the experts denied were possible. Let us end the year with a commitment to increase our appreciation that the world around us is challenging and complex, that optimism is worthwhile, and that we are all better together. 

Happy New Year 2021, may it be your best year ever. 

Tuesday, December 22, 2020

Godspeed Steve Rosen

As an attorney, I enjoyed my practice evolving to a statewide concern. I had incredible opportunities to litigate against attorneys in every corner of Florida in the 1990s. I thought at the time that I had a fairly broad exposure to the workers' compensation community. And, I was wrong. Despite my Jacksonville-based practice taking me to Miami, Ft. Myers, Pensacola, and all points in between, there were many lawyers on both sides of the practice that I never encountered. My years since have afforded many opportunities to meet and interact with many more. 

Obviously, a great part of my practice was in Jacksonville. Perhaps my reminiscence of that time is tinged by rose-colored lenses, but there were many positive attributes of that practice, that bar, and those people. I look back on my time there with great affinity. Having departed, it was not until taking this job that I had need to focus again on that community. 

In the early twenty-first century, Judge Anderson left the bench in Jacksonville. He had presided there for the duration of my memory. His style, and that of the Hon. Rhodes Gay, introduced me to this practice. The Hon. William Dane assumed his position, and Judge Harris remained. At the end of Judge Dane's term, the position was open yet again. Seemingly concurrently, though my memory fades,  Judge Harris announced retirement from the bench as well. Jacksonville District was entering a time of uncertainty. 

When the two vacancies were advertised, seventeen esteemed attorneys sought appointment. The ravages of inflation had not yet so markedly impacted the salary of a Judge of Compensation Claims, and the 2003 attorney fee constraints had not been ruled out. Judges Rosen and Pitts were appointed in Jacksonville in 2009, though neither was from or was practicing there. It was my first encounter with either, though each had been fixtures in Florida workers' compensation for decades.

Judges Rosen and Pitts were immediately embraced by the Jacksonville Bar. They brought stability and functionality to the operation of District Jacksonville. Their impact there cannot be overstated, as the timely determination of disputes evolved across the state. Their influence and dedication supported the professionalism in the community, enhanced the practice of law in that district, and benefited workers' compensation. 

Judge Rosen was soon quick to volunteer for coverage in Lakeland following Judge Mark Hofstad's appointment to the Circuit Bench. On his weekly trips back to Tampa, it became habit to stop in Lakeland for months until Judge Sojourner was appointed there. When Judge Lauren Hafner retired in St. Petersburg, Judge Rosen transferred there, and has served since. He was an early adopter of the video trial process and has undertaken trials throughout much of Florida using that technology, often on short notice. 

He has been what some would call "old school." Judge Rosen counts professionalism among his expectations. In my perspective, he is never as vexed as when a lawyer displays unprofessional behavior. He is quick to schedule an appearance (hearing or conference) in a situation where he perceives such behavior. He has been herculean in his management of the St. Petersburg docket since the 2013 budget cuts resulted in the loss of the second judicial position there. 

One notable aspect of Judge Rosen's long service will be in his adjudication of Matrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621, 622 (Fla. 1st DCA 2011), where he departed from the Court's earlier conclusions regarding maximum medical improvement, limitations on temporary benefits, and entitlement to permanent total disability. The First District reversed his conclusions, and Matrix was the law for a period. He was later presented with a similar situation, and followed the Matrix opinion assiduously. In the appeal of the resulting order, the First District again reversed him again as well as reversing its own precedent, resulting in Westphal v. City of St. Petersburg, 122 So. 3d 440, 441 (Fla. 1st DCA 2013); of course, the Florida Supreme Court later disagreed with the District Court and brought greater clarity to the law in its consideration of Westphal in 2016. This is notable as it illustrates his dedication to the law, his effort to ably interpret it, and his persistent determination to effectuate it. His efforts no doubt influenced the outcome of Westphal, and the current state of Florida law in this area, and beyond. 

Another notable attribute worth mention is Judge Rosen's encyclopedic memory of this community. Certainly, he remembers and recounts notable events, but many can do that. Judge Rosen, however, remembers the people in this community. His stories are focused upon individuals, their abilities, predilections, and peccadillos. But, he also remembers and exalts their achievements, involvements, and impacts. He is inherently focused on their successes, contributions, and victories. He reminds them, and celebrates them. He builds community through that remembrance and reinforcement. 

He has been a persistent lecturer and panel member throughout that career. His seeming preference was to be moderator of panel discussions, which he did with great aplomb before audiences large and small. Some came to refer to his moderation style as the "Rosen method," a tribute to his preparation and guile. He has been, perhaps, the Alex Trebek of the Florida workers' compensation lecture circuit.

Judge Rosen retires at the end of 2020. His twelve years of judicial service draws to a close in St. Petersburg, just a short bridge away from the Tampa district that predominated his career in the practice of law. December 31 will mark the close of (part of?) an extraordinary career culminated by public service of the highest order. 

Judge Rosen has been a member of The Florida Bar for 46 years (1974). Like most of us, he is not a Florida native. He attended college at Hamline University in St. Paul Minnesota, graduating in 1970. He moved to Houston Texas where he attended South Texas School of Law, graduating in 1974. Upon admission to The Florida Bar, he began practicing workers' compensation law in Tampa, Florida, where he later opened Stephen L. Rosen, P.A. 

His service to Florida includes membership on the initial Florida Bar Workers’ Compensation Board Certification Committee. The fact is that many of the most notable attorneys in this community are distinguished by the Board Certification designation in whose origins Judge Rosen participated. He also served as Chair of both The Florida Bar Workers’ Compensation Section and the Statewide Judicial Nominating Committee for Judges of Compensation Claims. He is also a founding member of the Florida Workers Advocates. 

Through a long and storied carrier, Judge Rosen has been part of the fabric of this community. He has been recognized for his service by organizations such as The Florida Bar Association, Best Lawyers, Super Lawyers, The College of Workers' Compensation Lawyers, and more. He was inducted by the Workers' Compensation Institute into the Florida Workers' Compensation Hall of Fame in the inaugural class. 

It is fair to say he and I have disagreed on the law, the rules, the practice, and more over the years. I find it connotative of his character that despite our disagreements, he has never been disagreeable. That is what "old school" is, in part. Lawyers should be able and ready to disagree, to advocate, and to compromise; all without being disagreeable. To be a professional is to make analyses, to express opinions, and to resolve challenges. 

I have been privileged to work with Judge Rosen over the last decade. In my estimation he has been a stalwart and hardworking adjudicator across the state and I both regret and celebrate his retirement. We all wish him the best, as we simultaneously welcome Judge Rita Young back to the St. Petersburgh District effective January 2021. Godspeed Judge Rosen, may the road rise up to meet you on whatever course you set. 

Sunday, December 20, 2020

The Perils of Limbo

Limbo. In one definition "the border place between heaven and hell where dwell those souls who, though not condemned to punishment, are deprived of the joy of eternal existence." In a broader, secular, context it may merely be "a place or state of neglect or oblivion" or "a state of uncertainty." 

If we find ourselves in limbo, uncertainty, frustration, who should we fault?

Psychologists tell us that uncertainty is an uncomfortable part of our existence. Our exposure to uncertainty results in stress. We may all view the world through the prism of stress based upon our inability to effectively foresee the future. With doubt and uncertainty may come a variety of impacts and implications. Stress in some measure may be part of life, but stress may also have untoward effects on our health and wellbeing.  

Litigation is generally about competing views and allegations. When parties are in agreement as regards an injury there is no need for judges, juries, and lawyers. Agreement does not require resolution. That seems axiomatic, but is too often lost in the day-to-day. Litigation is about disagreement(s), and with disagreement comes the need for resolution, and stress. We could reach resolution with force (fights and wars are an inescapable reminder of that), or we can sort those differences in a more civilized manner - litigation. 

In an age of COVID-19/SARS-CoV-2, we are reminded that the path of litigation may lead into limbo ("neglect or oblivion"). At a recent meeting of lawyers, a judge joked aloud "for those of you with civil matters, see you in 2023." The Courts are struggling to deliver their services through this pandemic, and are focused on restoring criminal processes first. While administrative actions are more expeditious, the adjudication of workers' compensation matters is likewise experiencing delays and challenges across the country. This is certainly worse in some jurisdictions than in others. 

We humans do not like change. Change brings uncertainty. As mentioned above, that can then lead to stress. So, as we search for the root of discontent, we may blame uncertainty, but might also be well advised to look beyond for perhaps the roots upon which that uncertainty grows. 

Beyond the challenges that come from pandemic, adjustment, and their uncertainty are other examples that are more focused. These are also examples that can be more readily addressed. They require our attention and direction however, as they will rarely just fix themselves. 

Recently, I heard through the proverbial "grapevine" of an attorney upset with uncertainty. A motion was filed, and apparently reviewed by a judge's staff. The staff found it to be incomplete or unclear, and contacted the attorney for supplementation or elucidation. The response did not clear the staff's mind, and so the motion sat (perhaps it does 'til this day). The attorney finds her/himself frustrated and in a state of uncertainty, a state of limbo ("neglect or oblivion"). 

The attorney has appropriately sought relief (Rule 60Q6.115(1)). A motion is pending, but no relief is forthcoming. The lawyer asks for a hearing, and staff (allegedly) declines to provide it as the motion, in her/his determination is incomplete or insufficient. 

What does the lawyer want? In a nutshell, any lawyer filing a motion wants to prevail (that is the point in seeking relief, to obtain relief). But, in the world of litigation, there is also value in simply obtaining an answer. 

A comedian, Jerry Clower, told a hunting story that involved one hunter and his prey climbing a tree. The hunter is said to have asked his friend to thereafter fire her/his gun into the tree, to which the friend expressed concern about perhaps hitting the other hunter rather than the prey. The tree-climbing hunter is said to have replied "shoot up here amongst us, because one of us needs some relief!” I actually heard that reference argued by an esteemed and now retired attorney while presiding over a motion hearing years ago.

There is also truth to that, "relief." Whether one prevails on a motion or not, there is some solace is having the judge's decision. You see, with the decision, positive or negative, the uncertainty is removed. That may be replaced with jubilation, disappointment, or even disgust. But, whatever replaces the uncertainty still alleviates the stress of that uncertainty. With a decision comes the path out of limbo ("neglect or oblivion"). Don't take that wrong, the statement above stands, lawyers want to prevail. But, there is good that comes from the knowing itself. It allows focus to return to the future, the next step; the path becomes perhaps clearer. 

And, once you know the outcome of a motion you can decide whether it is possible and practical at that stage to seek appellate review of the judge's decision (some orders are immediately appealable, some are not). Despite those analyses and considerations, you at least know the judge's decision. 

The judicial process really offers only one thing to litigants, due process. This boils down essentially to two elements, notice of the proceeding and an opportunity to be heard. A lawyer may lament that "I cannot get a hearing," or "I cannot get past the judge's staff." There may be merit in either. With no outcome other than "staff won't pass it to the judge and I cannot get a hearing," there is no way to "appeal" as there is no decision, no order, no outcome. That is frustration, uncertain. That is limbo ("neglect or oblivion"). But, a lawyer expressing such sentiments might consider the following. 

First, the "opportunity to be heard" does not necessarily mean an opportunity to verbalize (out loud), to have a spoken interaction. Being heard may be accomplished through the motion itself, the writing. In the world of Florida workers' compensation (and other litigation), a "hearing" in the sense of an verbal presentation may be rare. Rule 60Q6.115(4). Actual hearings may be limited to (1) exceptional circumstances, and (2) be provided only when one makes a valid case that one is needed. That premise exists in various litigation rules, and has since way before any pandemic made hearings increasingly rare. 

The point is, before complaining about not getting a hearing consider whether you asked for one in your motion and, if so, whether you stated therein a compelling reason.

Next lies what we refer to as "extraordinary writs," as discussed in If it is Moot, what does it Matter (August 2018). There is such a writ called Mandamus in which your appeal to the Court would seek "a writ issued by a superior court commanding the performance of a specified official act or duty." The duty to be performed? Adjudicate the motion, granted or denied, an outcome. One might file for Mandamus asking the appellate court to order the judge to rule. 

The problem with such a writ proceeding is that it is expensive and time consuming. Instead of putting the public to such procedures, it would seem productive and appropriate instead for a judge to assure that all motions are brought to her/his attention by staff. Staff should ideally be instructed on the discussion of due process, and following their routine of requesting clarification or supplementation, but should be encouraged to bring all matters to the judge within some reasonable time with or without the remediation staff has requested/suggested. The judge, not staff, should be deciding whether to grant, deny, or defer. And, in most instances, a decision (yes/no) is the appropriate outcome. Win or lose, a party has sought relief and deserves an outcome. 

Judges electing instead for that "defer" option should remain cognizant of the limbo ("neglect or oblivion"), uncertainty, and stress that may result. That is a difficult spot and we should all strive to minimize those who are in "neglect or oblivion." Lawyers finding themselves in that limbo and uncertainty should review their pleading, their thoroughness, and their pronunciation of the issue. They may wish to file a better, more extensive, more explicative motion and making the case for a verbal hearing.

In effect, who is responsible for assuring that matters are resolved? It is a shared responsibility for judges and attorneys. Staff working for either should be instructed, supervised, and counseled to enhance the chances of progress. Everyone should strive to minimize the potential for limbo and the uncertainty that it brings. Lawyers can minimize potentials for it with effective pleading, judges should make decisions wherever practical, knowing that any party to the case may "needs some relief."

Thursday, December 17, 2020

Swearing Witnesses in Florida

I have recently been educated regarding perspectives on swearing witnesses. The COVID-19/SARS-CoV-2 pandemic has changed much that we do in the practice of workers’ compensation law. Of course, the perspective of this office is consistently and persistently upon the presentation of evidence, thus admissibility. It is possible that focus is primary for attorneys also. In those roles, we must remain conscious of the roles of other professionals, and the rules, regulations, and statutes which direct them. Focused-forward, collectively, on getting cases prepared and heard, various professions may face dissimilar laws and constraints.

Additionally, in the midst of this pandemic, tempers are short, frustrations are daily, and disagreements may arise. It is entirely possible one might disagree with the statutory interpretation or discussions surrounding professional limitations or authorities. However, it is never appropriate to bully anyone into behavior that they sincerely believe to be a violation of the law, her/his licensure, ethical responsibilities, or morals.

The 60 Q Rules afford the parties opportunities to stipulate to the administration of the witness oath telephonically. Rule 60Q6.116(3). This stipulation language is, however, specific to the administration of oath “by the judge”: “parties stipulate to administration of the oath telephonically by the judge.” In that instance, it is the judge who would assume responsibility for the administration of the oath.

There is also stipulation suggestion in Rule 60Q6.114(2)(b). This rule is specific to depositions and generally requires “the oath shall be administered in the physical presence of the witness by a notary public or other person authorized by law.” The rule affords an exception if “the parties stipulate to administration of the oath telephonically.” The Rule is permissive. The Courts have noted that “it is, of course, ‘axiomatic that an administrative rule cannot . . . contravene the provisions of a statute.’” There is no telephonic oath preclusion under the 60Q Rules; thus admissibility is not impaired by such a stipulation and administration of oath. That rule does not, cannot, contravene or control any statutory provision.

I now understand that rules are being cited, creating conflict and difficulty for Florida court reporters. I understand that some of them feel caught in the middle between her/his obligations and licensure, and this rule.

The conflict is based upon the legality or permissibility of administering a telephonic oath. Court reporters in Florida have the ability to administer oath because they are notary publics, section 92.50, Fla. Stat. Their actions are governed and controlled by the statutes regarding notaries. In 1992 Attorney General (AG) Robert Butterworth issued an Advisory Legal Opinion (AGO-92-95). It was his opinion that a notary may not administer an oath telephonically “to a person who is not in the presence of the notary,” “even though the attorneys for all interested parties stipulate as to the person’s identity.” Thus, Florida notaries believe that they are legally precluded from administering an oath telephonically. The AG cited section 117.05, Fla. Stat. Attorneys, apparently, believe otherwise and that difference of opinion is leading to conflicts.

The AGO expresses the purpose behind section 117.05: “the key to a valid oath is that perjury will lie for its falsity.” Citations omitted. The point, according to the AG is “not . . . that the officer knows him to be the person he represents himself to be, but that he can be certainly identified as the person who actually took the oath.” For that, the Attorney General cited a tertiary legal authority, a legal encyclopedia. While that may seem dubious authority to some, it is nonetheless the opinion of Florida’s Attorney General.    

As an analogy, consider that the parties to a claim could stipulate to any doctor providing care and treatment. However, consider the parties stipulating to a chiropractor providing surgical removal of a lumbar disc. Imagine the two attorneys confronted by a chiropractor explaining “I am not permitted to perform surgery, and could lose my license for doing so.” Certainly, no lawyer would take it upon him/herself to argue with the chiropractor regarding her/his personal beliefs as to what the doctor can and cannot legally do. Whether the doctor’s licensure allows her/him to perform any specific act (surgery) is a decision for that professional.

It is suggested that the same outcome would be appropriate if a court reporter or notary declines to administer an oath telephonically based upon the impact such action could have upon her/his licensure.

Anecdotally, there is an allegation of a notary public who recently administered a telephonic oath in Florida. Although the two attorneys allegedly stipulated to this reporter doing so, one of them thereafter reported the notary to the state. The notary reports that she was suspended for a significant period of time, and suffered the impacts, professional and pecuniary, of that punishment. Most of us work in order to produce income, feed our families, etc. No one wishes to have her/his ability to earn a living impacted by such a license suspension. It is particularly inappropriate if the individual believes her/his action is illegal or unethical, and proceeds forward only because someone is bullying, cajoling, or threatening them.

The solutions presented include at least seven potential alternatives. They are presented here in order of descending probable expense.

Solution one. Arrange for the witness and court reporter/notary to be physically in each other’s presence. This allows the notary the full opportunity to verify the witness' identity, view her/his identification documents if necessary, and to later attest to who actually took the oath (if perjury is an issue). This, of course, has long been the accepted norm in deposition testimony. However, instances of impracticality arose even before COVID-19/SARS-CoV-2.

Solution two. The parties can verify that their selected notary/court reporter is certified pursuant to the Online Notary statute passed in 2019 (Part II of Chapter 117). This is complicated by some notaries’ perceptions that these provisions are focused upon notarization of documents, and their conclusion that obtaining this credential is expensive and time-consuming. Some notaries have also concluded that use of this process requires both recordkeeping of the online interaction, and engagement of an independent third-party vendor (potentially adding expense).

Solution three.  Arrange for the witness to have access to a computer with WebCam (tacitly endorsed by (AGO-92-95). This would allow the deposition to be taken via Zoom, WebEx, Google Meets, or similar platform. An added advantage over a telephonic interaction is that all parties are able to view the witness, facial expressions, and the general atmosphere of the proceeding. The potential downside of this solution include the cost/accessibility of hardware and the presence of accessible and sufficient bandwidth. Furthermore, this solution may be dependent upon the Florida Supreme Court’s emergency order regarding proceedings during the COVID pandemic (Administrative Order SC20-16).

Solution four. The parties can arrange for, and facilitate, the use of a (smart) telephone that allows video such as Zoom, FaceTime, etc. That technology can be engaged at the outset to allow the notary to (1) view the witness' identification, and two) administer the oath. (likewise tacitly endorsed by (AGO-92-95). A complication of this methodology is the potential a witness may lack such video phone technology. Furthermore, this solution is also believed by some to be similarly dependent upon the Court’s AO SC20-16.

Solution five is the least expensive, and simplest of all. Pursuant to section 92.525, Fla. Stat. the testimony can be elicited without an oath. The witness can then be required to read and sign the resulting deposition transcript, which contains a specific jurat rendering the transcript sworn in retrospect (as a document). The downside of this process is that it requires the expense and time of transcription in instances that might not otherwise be necessary. There is also the potential for a witness to make alterations or changes in the transcribed testimony. A witness might likewise elect not to sign the document.

Solution six, any attorney who wishes to may obtain a notary license. The attorney would thus be in the position to interpret the provisions of section 117.105, Fla. Stat. and could be individually responsible for any consequences as a result of oath administration that was later deemed inappropriate.

Solution seven. Without the potential for the application of perjury, the parties may likewise stipulate to be bound by a witness' statements despite the absence of any oath or jurat. Such a stipulation would likely render such statement admissible at trial. Citrus World, Inc. v. Mullins, 704 So. 2d 128, 128 (Fla. 1st DCA 1997). Some attorneys may be unwilling to proceed in this manner as it would not subject the witness to the corresponding penalty of perjury. Of course, there remain potential repercussions regarding such statements. Section 440.105, Fla. Stat.

It is also critical to remember that the law in our federalist system is sometimes not consistent from state to state. That Florida law may limit the authority of a Florida notary in a manner that Maryland’s (strictly for example) may not. The notary engaged to administer an oath may be bound by laws that are different (more or less restrictive) than Florida’s. Thus, the constraints and concerns expressed here may or may not be helpful if the witness being deposed is currently outside of Florida.

From the standpoint of the attorney, there may be a variety of concerns or requisites. While everyone should respect those concerns, it is important to similarly respect the concerns of a notary hired to administer an oath or to also report a deposition. Each of these solutions presents the potential for expense. It is likely that none of these will be seen as a or “the“ perfect solution. However, in this time of pandemic it is really not an issue of finding perfection. In this time, it is an issue of finding a cost-effective (in the particular circumstance) solution by which each party may move their matter forward.

It is for the attorneys to worry about procuring testimony, addressing admission ability, and overcoming objections. For this practical purpose, the stipulation is perhaps efficacious. Conversely, it is for the notary public to decide what she or he may appropriately and legally do. It is suggested that it is not the notary’s role to render advice to counsel regarding evidentiary admissibility challenges, and likewise it is as seemingly inappropriate for the attorneys to render the notary advice regarding the appropriateness of various methods of oath administration.

As a practical matter, determining how and if an oath will be administered would likely be a sound conversation topic long before the parties are present and ready to begin a deposition. Communication, discussion, and interaction should facilitate appropriate attainment of everyone’s goals, within the scope of everyone’s corresponding constraints or restrictions, under whatever state laws are applicable to a given situation. As a general proposition, conversations between counsel and other professionals are recommended throughout litigation, and all that it entails. 

Tuesday, December 15, 2020

Statute of Repose Forecloses Claim

The Florida First District Court rendered Palm Beach County v. Wilkes on December 14, 2020. The case is significant as it provides a glimpse into the 2018 statutory presumption regarding post traumatic stress disorder for first responders. However, in a broader sense, the discussion of distinguishing statutes of limitation and statutes of repose is also intriguing for the legal professional. I find students struggle with the concept of repose. That is understandable, as a fair few lawyers likewise struggle. 

The litigation in Wilkes resulted in the trial judge arriving at several findings of fact which controlled the outcome. The parties did not dispute those findings on appeal, arguing instead over the appropriate interpretation of the reasonably recent statutory enactment. The trial judge's interpretation resulted in the award of benefits to the injured worker. The employer appealed, and the Court's interpretation sided instead with the employer/carrier. 

The statute in question is section 112.1815(5), Florida Statutes (2018). Florida, generally, is a state in which mental injury or disability is compensable only if it results from a physical injury. Section 440.093, Fla. Stat. States that afford such benefits for mental injury alone are colloquially known as "mental/mental" states. Florida's 2018 amendment of the Public Officers and Employees law impacts that broader provisions of its Workers' Compensation Law in Chapter 440. The amendment in 112.1815 creates workers' compensation coverage outside the workers' compensation law, but only for specific employees, the "first responders." The Court referred to these as "special provisions for accidents and injuries suffered by first responders."

The exception in Chapter 112 is specific: "the PTSD must result from one of the eleven qualifying events listed in" that section. Furthermore: “[a] claim under this subsection must be properly noticed within 52 weeks after the qualifying event.” 

In Wilkes, the worker "witnessed the rescue of a young boy who drowned" in 2015. He continued to work, but at some point began to experience "distractedness, anxiety, and depression." Then, in May 2019 (at least 3 years after the drowning), he went diving. After that diving, the worker at some point "had a dream that the drowned boy was his own son." By the "the end of May 2019, he was diagnosed with PTSD that was opined to be caused by the drowning he witnessed in 2015. 

The trial judge concluded that the drowning was a "qualifying event" under Chapter 112, and that the worker suffered PTSD as a result. The judge concluded that the manifestation was May 30, 2019 and that the worker was disabled as of that time. The judge concluded that the Claimant's notice thereafter was timely filed, that is "within 52 weeks." The Court disagreed with that final conclusion. 

The Court reiterated that this was a matter of statutory interpretation, guided primarily by the "plain language of the statute." It reminds that when such language is "clear and unambiguous," there is no resort to "rules of statutory interpretation." Instead, that plain meaning is applied to the facts: "the statute must be given its plain and obvious meaning.” The Court concluded that the 52 week limitation was such a clear provision. 

The statute does not require notice within 52 weeks of a diagnosis of PTSD or the manifestation of symptoms. It requires the notice  "within 52 weeks of the qualifying event." The worker contended that this "manifestation" was "itself is a qualifying event." The Court explained that "section 112.1815(5)(a)2. lists only eleven very particular events that constitute qualifying events," and The "manifestation of PTSD symptoms is not among them." Therefore, since the notice was not provided within 52 weeks of the drowning that was witnessed, the notice was not timely under the statute. 

This will prove challenging for some. The question posed may be "how does one provide notice before one knows of a problem?" There will be some who perceive "fairness" issues with such a legal requirement. The Court perhaps anticipates such questions presciently, or perhaps the issue was raised by the parties. The Court therefore provides a reminder of the concept of "repose." 

The Court explains in detail that a statute of limitations requires action within some period, but "apply [after] a cause of action accrues." Thus, the statute of limitations did not expire in this instance because it did not begin until the May 2019 diagnosis. However, "the same is not true for a statute of repose." A repose statute is not measured from such "accrual" of an action but from some "specified act." Such laws are constitutional, even though they may bar a claim even before it accrues. That is, the claim may be barred before the malady (PTSD) is even diagnosed. 

The legislative intention, interpreted by the Court, is that a fixed period exists during which a worker might suffer one of the events described by Chapter 112, be diagnosed, and provide notice of a claim to the employer. That period is one year, 52 weeks. The statute's reference to that "qualifying event" bars such PTSD claims if not noticed within one year. The Court conceded that the "effect may be to eliminate a cause of action before it accrues," but explained that such limitations are not "denial of equal protection, due process, or access to courts." It is possible for a law, in providing an exception or special treatment, to be limited in time (when it occurred) or space (where it occurred). 

The compensability of "mental only" claims in Florida workers' compensation is precluded generally. The provisions of Chapter 112 make specific exceptions to that generality for special employees in special, delineated, situations. The Court applied those statutory exceptions to the situation as presented and concluded that the exceptions do not apply in the factual situation presented. Whether the exceptions of Chapter 112 are or are not fair is not the issue with which the Court was presented. 

Sunday, December 13, 2020

Filing Volumes and Causes

The Florida Office of Judges of Compensation Claims 2020 Annual Report has been published. There are various topics therein that may be of interest to the community. One about which there is frequent inquiry is the filing volumes: "are petitions increasing?" "is the petition volume new cases or old?" 

There has been significant fluctuation in the petition filing rates over the years. Florida has used the "petition" paradigm since 1994. Prior to that, issues were raised in a "claim" form, which could be filed as a notification. The jurisdiction of this Office, however, was not invoked with that. After such a claim, a party could then file the jurisdictional pleading, an "Application for Hearing." Thus, "claims "sometimes remained on file for years without any forward progress. 

When the new petition process was instigated in 1994, it was part of a major re-write of the Florida Workers' Compensation Law. The extensive revisions were made in a special legislative session. One of the purposes of the 1993 special session was to alleviate necessity of litigation. In 1995-95 41,526 petitions were filed; the volume steadily increased each year, except 1999-00, through 2002-03. In 2002-03 the volume filed was 151,021. One might characterize the effort at decreasing litigation as unsuccessful.

Thereafter, likely related in part to the 2003 statutory amendments, petition filings decreased as steadily through 2012-13. That year, a the trend reversed and increase began. That trend continued until 2019-20. Some are surprised that the petition filing that year was 72,086, a 1.4% decrease from the year before. The "new case" volume similarly dropped about 1.6%. It is notable that the two decreases were so similar. 

Some question why the trend is reversing. After reasonably stable tendencies toward increase since 2012-13 (except 2017-18 which demonstrated a minor change downward of 70 petitions), why would the trend change in 2019-20. It is likely attributable to the pandemic, COVID-19/SARS-CoV-2. This chart illustrates several points. 

First, the 2019-20 petition filings were demonstrating increase through most of the fiscal year. Note how the green line is persistently the highest on the chart through February. Then, in March 2020, the petition filing rate dipped below the figures for March 2019. That was not a major decrease; note that it remained above the March 2018 figure. 

Second, the decreases in April and May 2020 were significant and notable. This two month "dip" was not as severe as the one seen in September 2017 (blue), which was likely related to the impact of hurricane season. The trend in 2017-18 returned rapidly to similarity with other years the next month (October). The decrease in April and May 2020 was a longer period. While the June figure demonstrated some recovery, note that June 2020 did not equal June 2019, but did equal June 2018. 

Beyond the reported fiscal year 2019-20, however, the trend for 2020-21 continues to demonstrate mixed results (purple). In July 2020, filings were notably below 2018-19, but on par with 2017-18. August 2020 brought diminished results, well below the other three Augusts illustrated. September 2020 illustrated petition filings above the other Septembers, a promising sign of recovery. However, the encouraging September led to a disappointing October 2020 which demonstrated decreased filings. 

While October was diminished, it was not to the extent that November 2020 is predicted (multiple more filing days remained when these figures were compiled). The multiple-year analysis illustrates that petition filing decreases are to be expected in the November and December end-of-year. Unlike the state, with its fiscal year ending in June, most businesses have a year that ends December 31. There is therefore some expectation for there to be winding down and housekeeping in these months. Anecdotally, there are perceptions of increase in resolutions (stipulations, settlements) in these months. 

But, for whatever reason, there is a tendency to decreased petition filing at the end of the calendar year. In the time of COVID-19/SARS-CoV-2, that tendency appears to be more pronounced. There is consistency in the overall figures that Florida workers compensation litigation has been suppressed over the last 8-9 months. The decrease was sufficient in the fourth quarter of 2020 to effect an overall decrease for a year which had shown every indication of recording a notable overall increase. 

The decreases in the first five months of 2021 suggest probability that the overall figures this year will represent another annual decrease. There will be questions as to this. Anecdotally, the evidence suggests that COVID-19 claims are a significant volume (31.1%) of our "lost-time" claims, according to the Florida Division of Workers' Compensation. Despite that, they represent only 8% of the lost-time claim expenditures (costs). The pandemic is undeniably impacting business operations, work hours, and accident frequency. It is possible that it is impacting accident severity as well. 

The volume of petitions (seeking judicial intervention in disputes) is directly related to the volume and nature of disputes. Are disputes sufficiently serious to warrant litigation? What alternatives are there to such disputes? How efficiently are attorney's offices functioning in the role of interviewing and intaking clients with disputes? How willing are workers to seek representation or visit an attorney's office in the environment of COVID-19? Any or all of these may be playing a role in the decreased volume. And, perhaps, the answers lie elsewhere?

Thursday, December 10, 2020

Accent Discrimination?

Comedian Jeff Foxworthy has made a fortune from his "you might be a redneck" routines, said to have originated from other comedian's ridicule of his rurality while performing in Detroit. In one routine, he addresses the impact and import of accent, noting:
"People hear me talk, they automatically want to deduct a hundred I.Q. points. Because apparently the Southern accent is not the world's most intelligent sounding accent. You know, and to be honest, none of us would want to hear our brain surgeon say, 'Aw right, now what we're going to do is, saw the top of your head off, root around in there with a stick and see if we can't find that dadburn clot.' It'd be like, 'No thanks, I'll just die, O.K.? [laughter]"

This returned to my memory recently when the British Broadcasting Corporation (BBC) published Why France may ban discrimination against accents. The article makes no mention of "rednecks," but includes refences to being "treated like a hick - amiable but fundamentally unserious" based upon accent. The similarity to Jeff Foxworthy's perspective and perception are notable. 

The BBC story focuses upon an interaction between a French politician and a "reporter from French regional TV." The story notes the reporter has "a strong southern twang." As does, perhaps, Mr. Foxworthy? The BBC notes that France has a history of regional accents and that there has been some propensity to make light of their dialect in various contexts. The contention is made that such an accent can be damaging to those who seek to make a living "in broadcasting or national politics or the higher end of academia and the civil service."

At the other end of the dialect spectrum, according to the BBC, are those who "conform to the norm." These adopt instead a "standard Paris bourgeois." About half of the country (37 million) is said to speak in the Paris manner, while about 30 million "speak with an accent." It notes that lessons are available to facilitate learning how to speak without regional distinctions; to speak in the Paris fashion.  

While Americans were busy celebrating Thanksgiving, the French National Assembly undertook consideration of a bill to outlaw "discriminat(ion) against an individual on the basis of accent."  The vote was reportedly overwhelming (98 to 3) in favor of the bill, according to The Local.

It reported on the passage of the bill, and noted that there was "animated debate" prior to the vote. The bill makes "accent discrimination - known as glottophobie in French" a form of "actionable discrimination, along with racism, sexism and discrimination against the disabled." The legislation proposes penalties including "three years' imprisonment and a fine of €45,000" (about $54,000).

One of the few to vote against the measure, Jean Lassalle, expressed his thoughts "in his strong southwest France accent." He insisted "I'm not asking for charity, I'm not demanding to be protected because I am who I am." 

The legal implications of such a law in the U.S. are intriguing. In the world of employment litigation, the prima facia case would seem to be something like: "there was a promotion and someone with a Michigan accent received it instead of me (with my California accent)," or something similar. The nuance of who in a chain of command spoke with what accent, how an applicant or employee spoke or was perceived to speak, might prove to be difficult factual inquiries. In short, enforcement might prove challenging in the worst of circumstances. 

Of course, perhaps easier if the decision maker were more blatant: "we can't give you this promotion, you sound like a hick." But, in reality, how often would such a statement be made? In some employment cases, data is mined regarding the volume of some group promoted across a statistical sample, such as "x% (insert group) employees were promoted to manager in this company." But that is accomplished because there is data on employee demographics, origin, gender perceptions, and race. Would such a law come with requirements of documenting perceptions of accent (of others) or identification of accent (our own perceptions of our personal vernacular)? 

It is an interesting idea playing out. Whether it becomes law in France remains to be seen. Whether proof will be difficult in such circumstances, should it pass, will be intriguing from the perspective of employment and beyond. Could glottophobie become a thing here?