Sunday, August 30, 2020

The Physical Premises of Cyber Security

Comedian Jeff Foxworthy waxes eloquent about learning that aircraft windshields are throughly tested; he says "they shoot chickens out of a cannon at them." He notes that he "remembers career day in high school," and that included "plumbers and lawyers." But, he does not recall "a booth where you could sign up to shoot chickens out of a cannon at the windshield of an aeroplane (phon)." He believes at his high school there would have been a line for such a booth. There might be those who would do such a job simply for the novelty?

That comedy routine came back to me recently when I ran across a story on Wired.com that explains a "Courthouse Break-in Spree" and "White-Hat Hackers." When that article was published August 5, 2020, the Workers' Compensation Hot Seat was presented the next day: Cybersecurity Threats: What You Can’t See Can Hurt You. Cybersecurity has been on my mind this year, with multiple posts devoted to the topic: Cyber Threats 2020 (July 2020) Cybersecurity 2020 (November 2019), Cybersecurity, 2020's Hot Topic (January 2020), and Cybersecurity 2020 Again (April 2020).

The Wired article introduces the idea that people are paid to attempt to breach computer system security. They are the "White-Hat Hackers" who are engaged to test the measures that have been put in place to keep networks and data safe from those who would misuse or abuse. This apparently includes both cyber and physical attack simulations. The physical attacks involve actually breaking into buildings (by what are called "physical penetration testers" and "security consultants") to see what cyber access can be achieved, and it is the focus of the Wired article. There are companies that specialize in such cyber-testing (I do not recall that table from the high school career day, but then there were not really computers back then, or perhaps Aeroplanes, it was a long time ago). 

Two individuals were hired by the Iowa court system (the judicial branch of state government) to test the computer security afforded in various courthouses. This assignment may immediately cause one to question who owns those courthouses. That is a valid concern that these "White-Hats" might have wished to ponder. This ownership of premises point raises an undercurrent of the separation of powers that exists in government. While the state court system hired these individuals to break into courthouses, that court system does not own those courthouses. They are the property, apparently, of the counties. 

As you can imagine, these individuals become fairly adept at working around security. The article describes how they "case their targets," and find outside doors unlocked, alarms unarmed, and engage in tricks such as "lock-shimming." They wander through facilities in which they pick locks, install devices to monitor networks, and even find passwords written on post-it notes or other fairly conspicuous locations. In short, they find opportunities for network breach. 

In September 2019 they they broke into a courthouse and went about their business. Eventually, they set off an alarm, which attracted law enforcement. Though the police arrived, they ironically could not enter the secure courthouse. The two "White-Hat Hackers" exited the building, greeted the police and identified themselves. They presented the responding officers with a letter from their employer explaining their mission. This led to some friendly discussion with police, which included one office having a Foxworthy-type question: "how does one get a job like that?” A fair question. 

But, the situation devolved when the county sheriff arrived. After comprehending the situation, the Sheriff noted “This is not state property, this is county property.” Later in the conversation, he returned to that theme with "this isn’t the Iowa court’s property.” The Sheriff had the two arrested for trespassing and burglary, mugshots were taken, and they appeared before a judge the next morning (in the courthouse they had broken into). The judge expressed disbelief in their mission telling them “You’re going to have to come up with a better story than that." Despite calls from the jail the previous night, no one from the state court system (the client) appeared in court to corroborate their mission or status. 

As time passed, the two "hackers" found themselves charged with crimes. There were apologies and yet acrimony between the state court system, the "Hackers" employer, and the county. There were allegations that the physical break in had not been anticipated by those at the state that hired the "hackers," and evidence that the state employees certainly knew. Eventually, the Courts conceded that they had instructed the "hackers" and intended a "physical penetration"; however, a statement was then issued that the state and the "hackers" had “different interpretations of the scope of the agreement.” 

Eventually, the charges against the "hackers" were dropped "with just days until their trial." The computer "security industry" has taken the situation as a warning, a "teachable moment." There are implications asserted involving the interrelationship in Iowa between the legislative and judicial branch, as well as between the judicial branch and the counties. It is a long article with a variety of interesting details. 

In the end, there are a number of lessons. First is that it appears that penetrating computer networks either in a cyber or physical sense is not that difficult. The failures of users to secure networks, protect passwords, and more are disconcerting. Beyond that, for those who would undertake such testing, the lesson appears to be two-fold: (1) get the scope and intent of the mission in writing before hand, and (2) notify the local police in advance of any such "physical penetration" of a facility. Those likely each apply equally whether the testing is cyber or physical in nature.

That reminded me of a vehicle repossession fellow I knew years ago: "when you go to steal a car, always find a payphone and call the police just before you do, but not to long before you do." That old fellow had been chased by an unknowing sheriff or two and had been shot at by a few car buyers as well. There is danger in this world. It is astounding how much "street knowledge" is required to perform certain jobs well. 

The Wired story illustrates the dangers to networks and processes. It reminds of the separation of powers both among state branches and among the various levels of state government. It is an intriguing story with multiple warnings on cybersecurity. But, it never answers the inquiry of "how do you get that job" which would perhaps be of the most interest to Mr. Foxworthy. Apparently the answer to that is apply. The experts say that jobs across the board in cybersecurity are plentiful, well-paying, and waiting for graduates.

Are your passwords written on post-it notes stuck to the bottom of a desk drawer or keyboard? Worse, is it your dog's name or similarly simple?

Thursday, August 27, 2020

Complacency or Zealousness

There is an exchange between lawyers in the Rainmaker (1997). The movie is full of interesting quotes and overall provides an indictment of lawyers. The quote that sticks with me is this exchange:
"Rudy Baylor : I'm curious.
Leo F. Drummond : About what?
Rudy Baylor : I'm just wonderin'... do you even remember when you first sold out?"
That line returned to me recently when I was doing some audit work in preparation for the OJCC annual report that will be published yet again this fall. The thread I followed led me from a final order to some pleadings that had been filed. I was frankly stunned by the quality of some of those documents, and not in a good way. Frankly, I suspect that no one had proof read them, not even the most cursory or complacent review before filing. 

It made me wonder, at what point after law school does a lawyer become so lackadaisical about the practice of law that simple spelling and punctuation errors become unworthy of attention or correction? My journey through these pleadings included word choice mistakes (they're, there, their), punctuation errors (sometimes missing completely), and spelling erorrs (sic). And I wondered, why?

Law school is a challenging endeavor emotionally, intellectually, practically, and financially. It is a journey that many will aspire to, some will undertake, and frankly too many will likely complete. I recently learned that some law school professors have retreated from their emphasis on writing by substituting multiple-choice examinations for the classical essay examination or written paper. When I inquired about that, I was told that grading is much easier with the multiple choice. Well, if it is easier, I guess that is good. Perhaps that conveys an important lesson for the law students - "do what is easiest."

Another quote from the Rainmaker is 
"Rudy Baylor: Every lawyer, at least once in every case, feels himself crossing a line that he doesn't really mean to cross. . . it just happens . . . And if you cross it enough times it disappears forever. And then you're nothin but another lawyer joke. Just another shark in the dirty water."
I hope that is not true as to ethics or professionalism, which seems to be Mr. Grisham's connotation or intent in that context. But, I am similarly wondering if that progression is what has happened to drafting and writing? Does each lawyer at one point in some case fail to proofread? If we fail to proofread "enough times," does the practice and habit just "disappear forever?" Does the avoidance of proficiency and assiduity once lead to an encore, followed by an encore, and so on and so on?

How many poorly drafted pleadings does one file before it becomes commonplace and habit? It is possible that these documents are being provided to the lawyer's clients, as well as being filed with the judge? Perhaps those clients do not read or care? I had a client years ago to whom I would send minutely detailed and specific correspondence that concluded with recommendations. He would habitually call me upon receipt, having scanned only the ultimate recommendations, and ask "why should we do that?" Because he was the client, and the customer is always right, I never suggested to him that reading the whole letter would help him understand. Instead, I just verbalized the situation and facts set forth in the initial pages of the letter, to explain (again) those recommendations. 

Does the client's propensity to read and ask questions have any effect on the lawyer's desire to draft concisely, completely, and effectively? Or, is the art of writing merely fading into the distant past, soon to join such anachronistic and dated skills as cursive writing, and mix-tape editing? Perhaps there is no value perceived in effective writing. 

I find myself at this stage thinking of Ron Popiel who used to tag his infomercials with "but wait, there's more." And that is because there is more. Whether the lawyers or clients find the written word alluring, it has become the standard of progress in litigation. Of course, the written brief has long been the heart of appellate practice. An effective brief, well-written, concise, and clear is the only path to appellate success. This is because oral argument can be requested, but is not a right. The ability to effectively and efficiently explain one's contention in a brief is critical to appellate practice. 

That paradigm began to seep into trial work years ago. The federal courts led the way with eschewing live hearings on motions. The trend led to detailed and specific motions that either included or were accompanied by legal arguments written to persuade a decision in one's favor. In the twenty-first century, the Florida OJCC adopted that paradigm, and hearings on motions are infrequent (in most districts that follow the procedural rules). 

The Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications are clear on motion hearings:
"The judge shall not hold hearings on motions except in exceptional circumstances and for good cause shown in the motion or response."
I have written on that repeatedly, to little consequence. If a party wishes a hearing, they have to (1) ask for it, and (2) justify it. But, there is some population of attorneys that choose to do neither. They sometimes complain after an order is then entered pursuant to the rule; some call the judge's staff to argue about why they are not allowed to simply schedule a hearing. Possibly such habits abound from the "good old days," and possibly some attorneys simply cannot abide this hearing-less paradigm. A verbal argument, after all, is easier than effective drafting. 

The point is, that the ability to accurately, clearly, concisely, and effectively draft a motion is simply critical to success in litigation. Possibly lawyers have been deprived of an educational environment that fostered and developed the use of the written word. Perhaps they have been lulled into complacency by the employment of paraprofessionals. Or, there is the chance that they have simply "crossed a line" of not caring about their pleadings "enough times (that) it disappears forever." Maybe they just no longer care whether their writing is professional, complete, and persuasive? The volume and pace of litigation perhaps requires compromise and it is the drafting that suffers?

The path to success as a lawyer, is likely in words. An old idiom holds:
"If a thing is worth doing, it's worth doing well."
In that vein, if a motion is worth opposing (when counsel calls to ask if you object) then it is worth filing a response to, Rule 60Q6.115(4). If it is not worth filing a response, then why are you opposing it? And. put yourself in the judge's position of being informed by the motion that you "object," but having absolutely no idea why you do so. Judges are smart people, but how would a lawyer expect to prevail when their response to a well-drafted motion is merely "no?" How does a judge find the argument "no" persuasive?

And yet, this is a trend. Lawyers file motions, and opposing parties object. They object without explanation at all, or sometimes with single-word legalities that epitomize vagueness and ambiguity ("irrelevant," "duplicative," "prejudicial"). It is difficult to conceive how they hope to prevail upon their brevity and ambivalence. But, some of them are quick to invest their time after the order is issued. 

They then file a detailed motion for rehearing, raising new and substantive objections, essentially saying: "I doubted the need to respond, to explain my position, to cite the law, but now that I failed through inaction I would like to restart the process in hopes of erasing the effect of my indolence." Even in that setting, it is rare to receive either explanation for the failure to initially actively engage in the process and file that motion response. But, rehearing under Rule 60Q6.122 is not to raise new arguments, it is limited in scope and effect. Thus, the sounder practice is to raise those arguments initially, in the motion or response or risk losing the chance to raise them at all. 

Rudy Baylor might ask: "do you even remember when you first -"
  • "started allowing staff to do your drafting?"
  • "quit proofreading pleadings you sign?"
  • "became complacent instead of zealous?"
  • "forgot that holding a client's life in your hands matters?"
At the end of the day, the ability to effectively communicate in writing is critical. The willingness to do so by motion or response (brief, memorandum, you name it) remains fundamental to this practice. The need to be diligent and focused is critical to your client, and thus to you. It bears your consideration and attention. 

Tuesday, August 25, 2020

Cybersecurity Forum 2020

I have focused significantly in recent months on the threats that we face in an increasingly complex cyber world. See Hardwired Hacking (11/18) Cybersecurity 2020 (11/19), Cybersecurity 2020's Hot Topic (01/20)  Cybersecurity 2020 Again (04/20), and Cyber Threats 2020 (07/20). Technology is increasingly changing our world. That technology and therefore we, are dependent upon data, processes, and programs. These seek our data input, collect our data interests, and mathematically target us with resulting marketing. As scary as these somewhat innocuous impacts are, that collected data is also of great value to miscreants and other malapropos actors. 

The threats to "big" business are readily apparent in the news. Major retailers, famous websites, social media and more have made the news related to data breach. The famous in society see their most intimate details stolen, publicized, and even deprecated. The invasion of privacy damages mental health, finances, and privacy. But, the persistent good news it that it always happens to someone else. That is, until it hits home. I am confident that 20 years ago I knew no one whose identity had been stolen. Today, I know numerous. I know people whose personal and professional lives have been compromised and complicated by the acts of malcontents who thrive on causing people discomfort and pain. 

I know people who have related (1) their medical records being breached, (2) their identity used to open credit accounts, (3) their hardware stolen with sensitive data, (4) their email compromised and used to transmit impostor messages, (5) their social media accounts accessed and used by others, and (6) their networks locking them out of their own data and being held for ransom. 

I know people who maintain vast databases and documents filled with the confidential information of their own clients. Some have internet connections that allow them to access volumes of such information stored on servers owned by others, or share their data with others. The information age is dependent upon the flow of information on the "superhighway" that is the Internet. And, there is a seemingly endless supply of bad actors who are focused upon  misappropriating, stealing, and leveraging that data. 

Cybersecurity has never been more important or more challenging. I have been fascinated as the Florida Cybersecurity Task Force has refocused our  attention onto this topic. I have learned a great deal in the last year regarding the threats, the cures, and the pain that is involved. I was therefore excited to be peripherally involved in planning the cybersecurity conference that was to be a part of WCI2020. Unfortunately, when the WCI was postponed, the leadership decided an in person cyber program was similarly not viable in the age of COVID-19. Fortunately, the critical programming will still be available, but in a remote format. 

WCI has teamed with organizations such as Associated Industries, The Florida Defense Support Task Force, The Florida Economic Development Council, and the Center for Cybersecurity at the University of West Florida to produce a stellar program on Cybersecurity. The program registration is only $49.00, and features speakers such as Senator Marco Rubio and Katherine “Katie” Arrington (Office of the Secretary of Defense). 

The program promises to deliver the kind of information that any small business needs. The key points include:
  • How to protect your data – Individuals and Companies 
  • Who are the “bad guys”? 
  • How to recognize and respond to a cyber breach 
  • Demonstration of a Simulated Cyber Breach 
  • Preventative action steps for protection 
  • The DOD Cybersecurity Maturity Model Certification (CMCC) Program 
  • Compliance with CMMC standards
The major trend is toward data security requirements for businesses that interact with the federal government. The access to government markets will be dependent upon satisfaction of multiple security standards and certifications. These businesses will have to be secure in order to interact with the government. But, recognizing that any chain is only as strong as the weakest link, those business' other customers and vendors will likewise have to be security focused. The business linked to the government will have to assure the security of those "others" with which it does business. 

Securing company "X" from the bad actors, in order to protect the government agencies with which it works, will be effective only if the others with which Company "X" interacts are similarly secured. The vendors who need access to company "X" data to provide medical care, claims adjusting, and legal representation must similarly be secure. Otherwise, each might be a weak link in a chain and thus a threat to the security of the integrated network and the exchange of data and information. In short, an unsecured vendor could lead to a breach. It happened in 2013 with Target stores, and the potentials remain. 

There is a probability that cybersecurity will be a persistent challenge and expense in years to come. The driving force is of course the bad actors whose behavior is being challenged. But, that is leading to increased government regulation that will directly impact businesses, and that impact will expand through that businesses' interactions with far-reaching and significant implications and expense. The imposition of standards on federal contractors is likely to be mimicked by state governments, The trickle down impact of such standards is apparent. 

Those with an interest in protecting their own data would be well advised to learn more. Those with an interest in doing business would be served by this expanded knowledge. The future will include regulation and certification for many. I plan to be in attendance September 16-17 because this addresses an important topic, helps us understand a significant threat, and provides us with professional growth and education at minimal cost. Will you take an interest now while this affects someone else, or wait until some hacker takes a direct interest in you? 

Sunday, August 23, 2020

What is in a Name?

I was reminded of a very old movie recently, Don't Raise the Bridge, Lower the River (1968). The theme involves a con artist demonstrating that old adage "there is more than one way to skin a cat." In that vein, some have apparently finally found a way to address the growing issue of obesity in society. They have boldly . . . changed the definition of obesity.

The British Broadcasting Corporation (BBC) reports that Canada has overcome obesity by concluding Obesity should be defined by a person's health - not just their weight, says a new Canadian clinical guideline. This is inventive and novel, certainly. 

The Center for Disease Control in the United States has a clear definition of obesity:
"Weight that is higher than what is considered as a healthy weight for a given height is described as overweight or obese. Body Mass Index, or BMI, is used as a screening tool for overweight or obesity."
That is fairly simple to comprehend and to communicate to others. If my weight is above the standard, that is seen as problematic. I first confronted that fact years ago when I entered the world of workers' compensation. My early practice was focused on employer reimbursement claims against Florida's Special Disability Trust Fund, see section 440.49, Fla. Stat. 

One of the criteria under that statute, constituting a "preexisting permanent physical impairment" is:
"Obesity if the employee is 30 percent or more over the average weight designated for her or his height and age in the Table of Average Weight"
That led me to those charts, which led me to calculate my own statistics, which led me to label myself "obese." The Government published an ideal weight range for my gender and height, and I was well above it. There were self-attempts at justification, at disbelief (in the standard, not the scales), at denial. But, the definition and the standard remained. I was obese.

We are an obese society. According to the American Cancer Society, many of us are obese, and the percentage is growing:
"between 2007-2008 and 2015-2016, the report says the rates of obesity rose significantly among adults, from 33.7% to 39.6%. Rates of severe obesity increased during this time from 5.7% to 7.7%."
Who can forget the tower scene from Airplane (1980) in which we learn "Leon is getting larger." In fact, recently it seems many of us are getting larger. 

There are implications and problems. The American Society for Metabolic and Bariatric Surgery says there are potential health impacts:
"Obesity can cause a lot of damage to your body. People with severe obesity are more likely to have other diseases. These include type 2 diabetes, high blood pressure, sleep apnea, and many more."
Note that they say "cause." There are others who note various potentials for obesity to aggravate various maladies and conditions. But, also to "cause." Over the years I have seen a great many of those government standard height/weight charts in doctor's offices. My impression has been that there is general consensus that overweight can increase health risks. 

Are we worried about obesity? (Alfred E. Neuman: "what, me worry?") Some conclude that we are, both individually and collectively. According to Thinkbynumbers.org, Americans alone spend vast sums on weight loss and fitness.
"Americans spend more than $60 billion annually to try to lose weight, on everything from paying for gym memberships and joining weight-loss programs to drinking diet soda."
The site claims that world hunger could be eradicated for half that amount. The news focuses on this topic. This year it noted the obesity rate is now over 40%, that weight may implicate COVID complications, and that obesity has implications for heart disease. Obesity is not a new topic or concern. 

Canada's solution is interesting. According to the BBC, it is not suggested that "diet and exercise" be forgone, but it is now advising "doctors to go beyond simply recommending diet and exercise." The plan is to "focus on the root causes of weight gain and take a holistic approach to health." That may or may not be consistent with merely changing the definition. Without an objective standard like the charts, how does one decide if they are or are not a healthy weight?

Well, the Canadian Medical Association has determined that there is a potential for "weight-related stigma against patients," and it cautions practitioners against that. There are cultural assumptions, it notes, regarding "personal irresponsibility and lack of willpower." The result is "blame and shame upon people living with obesity," The Canadian approach seeks to remove the stigma attached to obesity, by redefining it, and thus purportedly empower clinicians to treat it. 

The Canadian effort concluded that "many doctors discriminate against obese patients." There is a ""weight bias" that leads to practitioner behavior. The sense is that many have operated on a simple advice of less calories and more activity. The new guideline continue to focus on healthy and balanced diet as well as "regular physical activity" But, there is a significant focus on the mental aspects of both hunger and weight gain. 

The new Canadian guidelines will continue to utilize the body mass index (BMI) ensconced in that government height/weight chart. The waist size will also remain as a measure. But, the focus will shift from attaining "ideal weight" essentially to attaining some improvement. Size will not matter as much as making some progress. The authors of the standard point out that small weight reductions can effect improved health. 

The new guides specifically claim to not abandon the long-standing advice of "eat less, move more," but to shift focus to supporting the patient psychologically, medically (drugs), and even surgically (gastric bypass). Is it practical to conclude that surgery is the answer? Bypass surgery is nothing new. The Mayo Clinic labels it a "major procedure" and notes it "can pose serious risks and side effects." And, it adds that "you must make permanent healthy changes to your diet and get regular exercise to help ensure the long-term success." In other words, surgery is not apparently an independent, risk-free, solution to the issue.

The issue seems to be both complex and vexing. Vast sums are invested annually in addressing it, and despite that rates of obesity are increasing. We like sugar, convenient processed foods, eating out, large portions, and more. We tend to like exercise, activity, and self-discipline less. We are engaged in a societal battle of the bulge, and many signs indicate we are losing. Changing definitions may help. The path of the Canadian effort will be interesting to watch. 

I for one hope they are proven correct and that weight loss can be more easily attained through their new redefinition and removal of stigmas. Clearly, something needs to change and obesity trends need to improve. Too much is riding on it for us personally and collectively. But, let's hope we are not just naively lowering the river. You think on it, I am going to get some breakfast. 

Thursday, August 20, 2020


Earlier this year I was struck by the narrative in a story on Healthline regarding misdiagnosis. It focuses upon the experience of one healthy young patient, misdiagnosed by her primary care provider, and fortunately saved and treated nonetheless. The article espouses a troubling statistic of perhaps 12 million Americans being misdiagnosed every year, with roughly half of those instances resulting in harm.

I immediately thought of our modern age, the leaps and bounds of medical scientific progress, the technology, and all suggestions are medical care should be paramount. I know people who have presented in an emergency room, and received a CT scan the same afternoon. There are a plethora of blood tests, urinalysis, and otherwise that provide support in the pursuit, diagnosis, and plan of treatment. Yet in our 2020, diagnosis apparently still continues to elude us in a significant number of instances.

The second thought that occurred to me, is the ever-present family history portion found in most medical reports. It is systemic that doctors ask what maladies or conditions run in our family tree. But, it may be impractical even in this age to expect ourselves to possess such knowledge with any certainty.

It is entirely possible that members of your family have passed, without any autopsy ever being performed. Therefore, it is likewise possible that your immediate ancestors had maladies and conditions that were never diagnosed or treated. Do you know your grandparents' or great-grandparents' medical history (or their siblings?) It is important that we remember that a great many of us have limited and imperfect knowledge of even our parents' medical history, but likely less knowledge beyond that generation. Absent hearsay, or notations in a family Bible, it is practical to expect that we have no knowledge whatever beyond three generations.

Compounding this limited written personal history, is the potential conjecture that misdiagnosis was perhaps more prevalent 100 years ago that it is today. The concept of requiring education in order to be a doctor is reasonably recent, according to The Atlantic. In our recent past, individuals became a doctor by working with someone else who was a doctor. There was an apparent lack of standards and standardization in terms of qualification or experience. It is entirely possible that your great grandparents may have been diagnosed with some malady based upon minimal medical evidence, an opinion formed upon potentially imperfect information or inadequate experience. They might have been diagnosed and treated with/by the best available, but still not with the science of our modern medicine. 

And, even if they were blessed with an exceptionally experienced and qualified physician, the potential still remains that diagnoses were made without the kind of diagnostic testing to which we have become accustomed. Or, perhaps worse, that their diagnosis was missed entirely. This is not to suggest that family history is irrelevant, or unimportant. This is to suggest that family history, like so much else regarding our health, remains imperfect and potentially flawed. The presence of such knowledge is potentially helpful to the situation, but an absence of known family history may be of less import. 

Unfortunately, in our youth we were all likely at best inattentive to the various complaints of our forebears. At best, perhaps, we may have noticed as children that some ancestor was ill, or did not feel well. Perhaps there is even some vague recollection of persistent symptomatic complaints. However, it seems unlikely that one will be able to accurately recite a series of symptoms from one’s youth.

The family history is therefore a worthy topic. But, more so, how many of us can accurately recall when and where we personally suffered injury, symptom, or were treated for a malady? If a physician prescribed a medication for you for some period of months in the last ten years, how likely is it that you can recall the name of that drug or the dates you used it? Perhaps more likely as chronicity increase or recency supports. But, it may be natural for us to forget temporary symptoms or treatments as time passes. Despite this, those may potentially be of importance in our future.

We are thus likely to be imperfect historians. In providing information to our physician we may be well advised to research family history with older family members to the extent we can. But, it is unlikely we can provide extensive or reliable information. Despite this, the family history is seen as "a critical element in risk assessment for many conditions" according to the Journal of General Internal Medicine. Those authors suggest obtaining a "pedigree that includes at least 3 generations." They suggest that critical information for those generations includes at least:
"Age or year of birth; Age and cause of death (for those deceased); Ethnic background of each grandparent; Relevant health information (e.g., height and weight); Illnesses and age at diagnosis" 
The realization comes upon us as we age that each of us will eventually necessitate the assistance of medical science. With the potential for misdiagnosis, it is incumbent upon us to participate in our medical care actively. Do you have any idea of the "critical information" elements listed above for three generations of your personal history? If not, perhaps the time is right to begin assembling such before it is asked for?

Tuesday, August 18, 2020

Trial by Consent, but not by Ambush

Due process is one of our greatest challenges under the law. It is a difficult concept for many. Even the most active litigators sometimes forget its primacy and practice. The easiest way to explain it is essentially in two elements: notice and opportunity to be heard. That is, due process is a matter of parties knowing there will be a debate and decision (notice) and the opportunity to tell their individual side of the story (provided they have a real interest, called "standing"). Due process does not assure you a win or a victory, but merely knowing when there will be a game and the chance to play. 

One of the critical points for due process is more subtle and detailed. It is beyond that there will be a game, but what the game will be (tennis, golf, baseball, they are different), what the rules of that game will be. It is important for the parties to a case to know that there will be a trial (game), what the trial will be about (subject), and what the rules will be. This affords individuals a chance to contemplate, prepare, and thus a meaningful opportunity to be heard. 

In an interesting case years ago this is illustrated and explained. The Florida First District Court reversed a Judge’s award of benefits in a 1985 workers’ compensation case, because those benefits were not “listed as being at issue in the pretrial stipulation.” Commercial Carrier Corp. v. LaPointe, 723 So.2d 912 (Fla. 1st DCA 1999). The Court held "because the claimant did not specifically request this class of benefits, and the matter was not otherwise clearly placed at issue, we reverse the award." Citing, Florida Power Corp. v. Hamilton, 617 So.2d 333 (Fla. 1st DCA 1993). 

In LaPoint, the Court further explained “Due process concerns preclude a ruling on matters which have not been placed at issue, since the parties are entitled to notice so that they may fairly present their case." Southeast Recycling v. Cottongim, 639 So.2d 155, 157 (Fla. 1st DCA 1994), Hamilton at 334. This is the foundation of procedural due process, the notice of what will be at issue, and how the parties may participate in airing their positions regarding that or those issues. 

Notably, the Court has also held that an issue in a workers' compensation case may be tried "by consent" of the parties even if the issue was not listed in the claimant's original petition for benefits. Dollar Gen. Corp. v. MacDonald, 928 So.2d 464, 466 (Fla. 1st DCA 2006). Trial by consent has bitten many a litigator that was less attentive than they realized. There is the potential for an issue to reach out and bite you when you are focused on other matters. 

Litigation, you see, is inherently an occupation of multi-tasking. It reminds me of the entertainment practice of "plate spinning," which was popular both in live venues and in the early days of television variety. A good example from the Ed Sullivan Show is here for those who have forgotten the image. The entertainer starts a plate spinning atop a long dowel rod, and its momentum keeps it upright while the entertainer proceeds to start others. But, each loses momentum and the entertainer must periodically return to each slowing plate and re-accelerate it before it falters or even falls. Many plates must be kept spinning simultaneously. One must work on one, while keeping a wary eye on many. Energy and focus are critical. 

In MacDonald, the injured worker suffered two work injuries, in March and August of 2003. The parties went to trial on claims related to March. In the course of the evidence and testimony, there were references to neck symptoms, causation, and need for treatment. The trial judge awarded her benefits for that neck injury, but the Court reversed. It concluded that the evidence did not support that the injury and need for treatment were related specifically to the March event. It noted that this March event was the only one listed in the pretrial and the one upon which the parties prepared and proceeded to trial. Thus, although evidence was presented regarding the August injury, that was not the injury upon which due process (notice) had been provided.

Despite the parties proceeding with an issue, it may nonetheless be inappropriate to allow it, or to adjudicate it. 

Thus, as a general rule, the issues for trial must be plead by the parties. It may be sufficient, instead, if an issue is thereafter mentioned in a procedural order or notice by the adjudicator (that order thus putting each party on notice). And, even if not specifically so listed, it is possible that an issue may be "tried by the consent of the parties." Herb's Exxon v. Whatmough, 487 So. 2d 1169, 1173 (Fla. 1st DCA 1986). In a subsequent decision, the Court cautioned "this rule presumes, however, that the parties have agreed expressly or by their conduct to litigate an issue not otherwise framed by the pleadings." Lakeside Baptist Church v. Jones, 714 So. 2d 1188, 1190 (Fla. 1st DCA 1998).

Obviously, an express agreement would render such an issue ripe for adjudication. The parties are bound by their stipulations and agreements, as explained by the Court in Citrus World, Inc. v. Mullins, 704 So. 2d 128, 128 (Fla. 1st DCA 1997). Many a lawyer seems to periodically lose sight of that spinning plate. It is not in the situation of an "agreed expressly" that we see allegations of "tried by consent." It is in the situation where an issue is patently and plainly presented, such as the neck complaints in MacDonald, that there are allegations of consent "by their conduct," which present a challenge to the trial judge.

Some would point to MacDonald and argue that if an issue is clearly discussed, evidence upon it is patently adduced, that the absence of some objection to that testimony is "consent." There is merit in such an argument, that this particular plate required attention and should have received it. The alternative argument is similarly that "this case" involves a population of spinning plates that require attention. Therefore, that one of the parties started some other, potentially distracting plates spinning elsewhere, should not obligate another party to pay attention to them absent some discussion or notice that they were intended to be part of this particular litigation. 

There is no bright line test for "trial by consent," or for when or how such consent occurs absent that the parties "agreed expressly." The best advice for parties is to raise an objection. If testimony arises about the August (neck) event, while the case is solely about the March event, one might object to the relevance of such testimony and reiterate that this litigation is only about the March event. Such clarity might well be mentioned likewise in an opening statement (spurred by suspicion or mention of new topics immediately before trial or in discovery) or closing argument. When it appears something new or unexpected is occurring, when one feels ambushed, it is time to voice the concern (thus putting the other parties on notice of one's differing perceptions of the actual issues).

If the notice was for a volleyball match, when the other side shows up dressed for football, you may be on notice. Or, perhaps they have just chosen wardrobe poorly, are eclectic, or are even just coming from another football game. Perhaps it is best to object at that point. But, when the other side first kicks the volleyball, throws a block, or tackles an opposing team member, it is time to object. There is some miscommunication about the activity and the rules. Get it on the table and begin to sort it out. The longer you play tackle volleyball, the harder it may be to contend that this was not the game that was noticed, expected, or appropriate. 

And, some mention of resulting prejudice might strengthen such an argument. That is, what might the "surprised" party have done with proper notice of the dispute that is being interjected. Had the party known of the apparent intent to include the August event (neck) and results, might some other discovery been conducted, other witnesses called, further examination been arranged, etc.? If there is apparent harm from the inclusion of issues through a perceived consent, the aggrieved party would do well to voice that as soon as practical.

From the standpoint of an appellate court, litigators should remember that there is a preference for issues to be addressed by trial courts. Appellate courts are often unwilling to address new issues for the first time. They prefer that, in the spirit of due process, that all issues receive an airing in the trial proceeding. Thus, an argument that some decision was made by the trial judge outside the parameters of notice and due process should be raised with the trial judge by rehearing immediately. Failure to do so, may inhibit the ability of an appellate court to consider such an issue. The appellate court may conclude rather that this issue was "not preserved." Hamilton v. R.L. Best Int'l, 996 So. 2d 233, 234 (Fla. 1st DCA 2008).

The end result is reasonably clear. Notice is appropriate and crucial. There may be instances in which the parties clearly perceive issues evolving, and they may consent to broaden issues for trial. The best demonstration of that would be an express agreement such as a joint motion to amend a pretrial, or stipulation. It remains possible that the parties actions may rise to sufficient proof of trial by consent, but hurdles may present. In a world of many spinning plates, surprised counsel is well advised to voice objections to such surprises or even to suggestions that are without the stated issues. Failure to object may leave counsel responsible for yet another population of spinning plates that require attention. 

Sunday, August 16, 2020

Artificial Intelligence Surveillance

I return today to the seemingly endless invasion of our individual privacy created and augmented by technology. This blog has included discussion of facial recognition, body cameras, and artificial intelligence. These technologies are racing forward, making the fictional 1984 an increasingly believable reality of government surveillance, revisionist history, and more. Who can forget the "party slogan":
“Who controls the past controls the future: who controls the present controls the past.”
In the midst of the recent rioting, and abject property destruction ("get ready for an influx of claims and payouts"), we have seen example after example of individuals arrested based upon probable cause provided by ubiquitous surveillance cameras. Certainly, not every criminal act has featured cameras, many have. There is the woman accused of burning the Wendy’s in Atlanta, the lawyers who threw Molotov cocktails (yes, lawyers) in New York, and there are even disputes between neighbors over cameras. 

Cameras, it seems, are everywhere. CNBC asserts that by next year there will be over a billion of these cameras keeping an eye on us. Most are in China. But, the United States is second in the proliferation. The non-China Asia countries combined are home to the third highest population. They are mounted on buildings, and on poles. Police use them to issue tickets for traffic lights and speeding. People install them in their doorbell. These home cameras have caught alleged rape, dognapping, mail theft, and even child birth. It seems that the news brings us a new example of passive surveillance daily. A billion! Remember when there were none?

Since September 11, 2001, Americans have become increasingly acclimated to government surveillance. There are now cameras lining interstate 10 in Florida. One government employee intimated to me it is possible for the Florida Department of Transportation to monitor a vehicle on that road between the state line and Jacksonville without ever losing site of it as it fades from one camera's scope and enters another. I’ve done nothing to verify that statement, but, seeing the progression of camera poles along this road, it is hard to doubt. 

Recently, the news brings reports of a commodity market in South America utilizing artificial intelligence to scan individuals entering its facility. This artificial intelligence is tied to surveillance cameras, and thermal scanners. It is evaluating pedestrians, noting the frequency of visits, checking their body temperature for potential COVID (but it cannot smell, see why that might matter), and processing this information through an algorithm. In a microcosm it is fascinating. Of course avoidance is simple, just do not visit this particular marketplace. But as that microcosm develops, would this technology be engaged elsewhere and on larger scale? 

According to the British Broadcasting Corporation (BBC), this system is collecting "data on the vendors and market-dwellers." It is storing information about each person's "age range, gender, and" whether each is "wearing their mask correctly," in order to assess risks and more vulnerable demographics. Wow, a surveillance system capable of being the mask police; I see lots of people not wearing their mask properly, but have decided it is not worth mentioning to them. In addition, there are "thermal cameras" that are capable of measuring "the temperature of 200 people per minute." It is a massive surveillance of those that visit this facility. Their face, their temperature, and the potential for gathering more date in due time. 

Another recent article describes scientists efforts involving micro cameras. The BBC reports that researchers have deployed a camera weighing only "just 250 milligrams" ("which is about a tenth of the weight of a playing card"). These are mounted on the back of an insect (Beetle). It is presently rudimentary, and the video produced is black-and-white and somewhat "grainy." But, it is bound to evolve further. There will likely be quality improvements. And, this micro camera, providing a beetle-eye-view, can produce video over a six hour battery-life. An insect in your home could stream pictures elsewhere for up to six hours. 

The researchers were not satisfied with the unreliable tendencies of the wandering beetle. They therefore built an artificial beetle. This is a acknowledged as "the world's "smallest terrestrial, power-autonomous robot with wireless vision." The device has legs which do not move, and it ambulated through vibration. It can "travel about three centimetres a second." Thus, 180 centimetres a minute (over two yards). This thing can get around. 

The researcher responsible for the beetle-camera admits that these "tiny camera robots could introduce new surveillance concerns." He contends that the solution to these challenges is public awareness of the technology and potentials. He says "that it's really important to put things in the public domain so people are aware of the risks and so people can start coming up with solutions to address them." That is an interesting thought. The double entendre is there as to the "public domain." There is the "let people know this exists" and yet also the "let's use this to spy on people." 

Is it all too far fetched? The Smithsonian reports that in Singapore a robotic dog patrols a park "barking" instructions to those it perceives as not social distancing appropriately. Amnesty.org reports that governments are using data from our own cellular telephones to track our movements and activities. It accuses some governments of sharing people's personal and private health information with others. It concludes with warning "these measures have the potential to fundamentally alter the future of privacy and other human rights." 

In this country, the Supreme Court conceived a "right to privacy," albeit in a context regarding contraception, in Griswold v. Connecticut, 381 U.S. 479 (1965). Some wonder at the recency of this decision, others lament its fragility. There is no privacy mention in the Constitution itself. The Court cobbled together a protection of privacy through reference and influence of the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution. The Court concluded that the "Constitution specific guarantees in the Bill of Rights have penumbras." That is a "shadowy, indefinite or marginal area" around the more defined core. It is a "penumbral right" to privacy upon which various personal protections hinge if Griswold is the focus of study. 

This is not the end of the analysis. Of course, we all "hold these truths to be self-evident" and "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these . . ." There is suggestion in this language that should be remembered and discussed more frequently. The rights you have were not endowed by your founding fathers, nor by our Constitution. 

Your rights exist as a natural cohort to your existence. Whomever you conclude to be your creator, you have rights through that grant ("endowed"). Much like the old saw "I think therefore I am," (Rene Descartes), we might just say "I am, therefore I have rights." Though the Griswold Court strives to explain penumbras, the fact is that the rights we have collectively enumerated are "among these" rights. The right to privacy is perhaps therefore as fundamental as any? 

As we progress in this age of ever-intrusive technology, perhaps we should stop periodically to consider how pervasive surveillance has become. What measure of our personal privacy will we each shed in exchange for the security or perception of security these cameras bring? Maybe it is that discussion that should be in the "public domain" more frequently for discussion? And, maybe we should wonder what the next generation may bring us if our complacency with these exceptional intrusions come to it as normal or expected.

Thursday, August 13, 2020

COVID Florida Filing Update August

The Florida Division of Workers' Compensation is continuing to provide data regarding the filing of COVID-19 related notices of injury. There have been two previous reports that have been the subject of posts in this blog (COVID-19 Claims in Florida and Florida COVID-19 Claims June 2020). A critical element in all of these reports is their limitation to claims involving indemnity benefits ("this summary does not include Medical Only claims in any claim counts or benefits paid.").  

The volume of such "Medical Only" claims might be significant in that this COVID-19/SARS-CoV-2 requires testing and quarantine in various instances. Some people may suffer significant hospitalization while others have minimal symptoms. That aspect of the disease suggests the implication of indemnity in many instances, however, under Florida law, "compensation is not allowed for the first 7 days of the disability, except for" medical benefits. That "seven day wait" period can be compensated retrospectively if the period of disability later exceeds 21 days total. Section 440.12(1). Thus, some with significant symptoms might not exceed the 7 days of absence to have a claim categorized as an "indemnity claim."

Additionally, there are employer-provided benefits required by federal law in many instances. Two weeks of paid sick leave are required to be provided by many employers by the Families First Coronavirus Response Act. There is an additional two weeks for an employee caring for someone else in quarantine. It is possible that this, or other available sick leave has impacted the need for indemnity claims for some who contracted this virus, but do not suffer the serious symptoms, complications, or hospitalizations. The disease is unprecedented, unpredictable, and uncertain. 

COVID-19 in Florida Claims; the key takeaways noted included:

  • Through May 31, 2020 - 3,807 indemnity claims reported (notice of injury filed).
  • About 55% had been accepted as compensable (1,718 denied at least in part).
  • The total paid at that time was $3,431,342.
  • About 64% of the total expenditures were for claims from Dade, Broward, and Palm Beach Counties.
  • The second largest group geographically was "not indicated," which was 16% of the total, $535,544).
  • Those three counties and the "not indicated" accounted for 80% of statewide expenditures.

The claims were distributed occupationally as follows:

  • Through June 30, 2020 - 5,693 indemnity claims reported (+50%)(notice of injury filed).
  • About 54% had been accepted as compensable (2,643 denied at least in part)
  • Through June 30, 2020, the total paid on claims in Florida was $7,074,389 (+106%)
  • About 57% of the total expenditures were for claims from Dade, Broward, and Palm Beach Counties.
  • The second largest group geographically was "not indicated," which was 24% of the total, $1,713,954).
  • Those three counties and the "not indicated" accounted for 81% of statewide expenditures.
The claims were occupationally distributed as follows:

In the latest report from the Division, which encompasses the figures for July and incorporates the previous numbers, the key takeaways are:

  • Through July, 31, 2020 - 11,872 indemnity claims reported (+109%)(notice of injury filed).
  • About 56% had been accepted as compensable (5,176 denied at least in part)
  • Through July 31, 2020, the total paid on claims in Florida was $13,120,059 (+85%)
  • About 54% of the total expenditures were for claims from Dade, Broward, and Palm Beach Counties.
  • The second largest group geographically was "not indicated," which was 17% of the total, $2,253,987).
  • Those three counties and the "not indicated" accounted for 71% of statewide expenditures.
The claims were occupationally distributed as follows:

COVID-19 indemnity claims have been notable since the first Division report. As of May 31, COVID-19 indemnity claims accounted for 15% of all Florida indemnity claims, and 2.9% of the total indemnity cost. As of June 30, 2020 COVID-19 indemnity claims accounted for 17.2% of all indemnity claim, and 4.1% of total indemnity claim cost. As of July 31, 2020 COVID-19 indemnity claims equal to 26.2% of all indemnity claims, and 5.3% of all indemnity cost. 

Note that the cost has increased by approximately 1.2% each month (2.9%, 4.1%, 5.3%). That growth in cost percentage is more consistent than the increase in COVID-19 indemnity claim volume, which increased 2.2% from May to June (15% to 17.2%), and increased 9% from June through July (17.2% to 26.2%). The volume, as a percentage of overall indemnity claims, is growing more significantly and less predictably than the cost as a percentage of all indemnity claim costs. 

The August report also provides a new delineation of information, “claim count & amount paid by  benefit ranges.” This divides the cases into predominately $10,000 ranges ($0-$4,999; $5,000-$9,999; $10,000-$19,999 and upward thereafter in $10,000 increments until $50,000; then in larger ranges: $50,000-$99,999, $100,000-$249,999, 250,000-$499,999, and finally $500,000+). This parameter delineation provides an initial glance at the potential and propensity for severity in the COVID-19 indemnity claims. 

The vast majority (11,544, 97%) of the total claim count (11,872) is in the $0 to $4, 999.00 range. But, overall this 97% accounts for 59% of the reported expenditures, $7,756,631. Nine cases in the upper "ranges" (8 in the $100,000-$249,999 range and one in the $500,000+) demonstrate the potential for significant financial impact of this disease. These nine claims account for 15% of the total COVID-19 indemnity claim expenditures ($2,022,046). This delineation of the expenditures substantiates that currently the preponderance of claims (97%) are individually in the lowest defined range, but together account for significant expenditures. The remaining 3% of claim volume accounts for 41% of the expenditures, with illustration that some claims are of significant individual expense. 

The volume of COVID-19 indemnity claims is increasing with each report issued by the Division. The rate of increase from the end of May to the end of June (+50%), was significant, but not as significant as the rate of increase from the end of June to the end of July (+109%). The volume is growing and the rate of growth appears to potentially be increasingly significant. When a vaccine becomes widely available, the growth in such claim volume would likely be expected to subside. 

The associated expenditures on COVID-19 indemnity claims is similarly increasing with each report. The rate of increase from the end of May to the end of June (+106%) was significant, more significant than the rate of increase from the end of June to the end of July (+85%). While that distinction is noted, the rate of increase is nonetheless significant in each of the two most recent reports. The COVID-19 indemnity claims as of July 31, 2020 are responsible for 5.3% of the overall indemnity claim expenditures in Florida. Because of the potential for claim expense to continue in a particular case, the arrival of a vaccine or compelling treatment may slow the growth in expenditures, but it is probable expenditures will continue in some population of such cases. 

The impact of COVID-19 on workers' compensation is receiving scrutiny and analysis. There are some who perceive the impact as significant, while others discount the impact entirely. Still others acknowledge the impact of these specific claims, but contend that resulting changes in employment generally have effected a counteracting impact of less frequency or severity (or both) of non-COVID-19 claims. Intermingled in discussions of that nature are questions raised as to whether the severity of non-COVID claims has actually diminished or whether COVID-19 related access to medical care issues (cancellation of elective surgeries, etc.) has only delayed related expenses. Some suggest that such delays may likewise have increased expected temporary indemnity in such cases as workers are out-of-work awaiting such care. There are many variables worthy of discussion. 

There are various perspectives and perceptions expressed. One point of clarity, which bears repeating, is that the Florida Division is providing timely and informative public access to pertinent data. Over time, these reports will further memorialize developments, and the trends they may portend. It will be interesting to see if other states begin to publish such data.