A recent post regarding an August decision by the Florida first District Court of Appeal resonated (The Burden, the Law and Uncontroverted). I have heard from several in the community regarding perceptions of an unexpected juxtaposition in the practice of law during COVID-19.
Apparently, a great many attorneys in our Worker’s Compensation community have taken professionalism to a whole new level in the age of COVID-19. It is heartwarming to hear the stories of mutual support, amiable agreement, and expeditious communication. While I am fearful that these best efforts and exemplary anecdotal experiences may not be unanimous, I am thoroughly impressed to hear the examples noted from various quarters.
Lawyers are finding a way to make the practice of law function. They are speaking with each other before filing motions. They are assisting each other with calendar complications, and they are striving to be efficient and effective in a Zoom-based world. But it’s not all roses today. There are other practice issues that bear discussion and highlight.
Several years ago I wrote a blog post about bringing evidence (If you are not Perry Mason, bring Evidence, May 2013). The point of that post is that you may in fact prevail with your Perry Mason skill set, merely by eroding the ground from beneath your opponents argument and case. It is possible to win without evidence, we saw Perry do it week after week and I have seen lawyers do it in real trials. That said, it is not the way to bet. Lawyers need to bring evidence, and to support it with argument. That is the epitome of the lawyers function.
Too often, judges are perceiving lawyers as having neglected to examine the statutory elements for a particular claim. You see, we need to remember that what is and is not workers compensation is defined by Florida statutes. Workers compensation is not a matter of common law, but a statutory abrogation of common law. What an injured worker may be entitled to, what she/he must prove, what defenses might be mounted, this is all in the statute.
Despite this, for some reason practitioners are struggling with laying out the elements that must be addressed to prove her/his case. Critical elements of evidence have been found lacking. Occasionally, to their professional credit, some have witnessed examples of opposing counsel providing polite reminders of such deficiency or omission. Such devotion to the principle of a decision on the merits is laudable, but cannot be expected.
Each lawyer must strive to know her/his case's elements, provide the evidence thereon, and explain that relationship in argument. A lawyer needs to list those elements and be sure to address each with evidence. How many witnesses to call, how many questions to ask, how many documents to put in evidences; these are all matters of strategy and the art of persuasion. But, it will be rare that the perfect volume of evidence will be "none." Whether supporting a claim or defense, there must be "some" evidence in order to prevail.
There is also a growing perception among lawyers and judges alike, regarding incomprehensible pleadings. It might surprise some to know that this blog is usually dictated rather than typed. Although I am a reasonably efficient typist, I grew up in the age of dictation and have struggled to forgo that habit. But, gone are the transcribers of yesteryear. Today, transcription is done by software as we speak. It is efficient, effective, and makes a lot of errors and mistakes.
Knowing that, I personally proofread every blog post, order, notice, and letter that leaves my office. Despite that effort, I often find errors in those documents months and years later. That I make them is embarrassing, that I miss them in the proofing process is embarrassing, but after all I am human also. And, though the mistakes chagrin, they tend to be misplaced commas or awkward phrases. They are errors, but they are isolated mistakes that have survived a thorough review.
Admittedly, we will each make mistakes. We all know this is a stressful time in the age of COVID. We are all under a great deal of stress and strain. We need to strive not to be too self-critical. But, the volume of mistakes, and incomprehensible documents has become a pandemic itself. It appears that documents are being dictated, but not proofread. Some of them are distracting and some are simply incomprehensible.
Some of these examples are quite simple. For one, it is important that you use each element of English, including objects and articles (like "the"). One judge related recently having to read an entire document which was missing many of these important directory words, which provide clarity and comprehension. Similarly, you must use punctuation. The absence of punctuation may be attributable to the dictation software. When dictating, to insert a comma, you must literally say that word “comma.“ Dictation software has come light years in the span of my professional experience, but it remains imperfect, literal, and sometimes frustrating.
Another example is hyperbole; it may not be your friend. Certainly, there is a need for an advocate to push the issue over the line. Litigation, like a race, it’s not over until the finish line is crossed. I am therefore not suggesting that advocacy be less vigorous. However, if the evidence is not uncontroverted the advocate gains nothing by misrepresenting that it is. And furthermore, the advocate has everything to lose in terms of credibility.
Tell the story, highlight the facts, put your best foot forward, and then rest. Do not over state and exaggerate. Obviously litigation is a skill that requires practice. Everyone’s advocacy, organization, and skills are being tested in the Zoom world in which we live. But, focus on the basics. Perhaps ask a member of your staff to sit in on the Zoom hearing and check mark off the items that you have intended as they are put in evidence? Perhaps ask them to similarly check mark as each point is clarified in argument? Perhaps with the distraction of an impersonal, remote, technology-based proceedings it pays to have someone backing you up in that manner?
This is not to suggest that we become too self-critical in an already stressful time. I make dozens of mistakes every week. I am as imperfect as any human being on this planet. I refuse to let that get me down, or to distract me from delivering my best effort in each instance. I accept that I will fail. You will fail also. Do not be defined by that. Decide instead to step up to your failures, and own the errors.
Judges are interested in your explanation. Judges are obligated to make determinations of competing arguments, struggles, and dispute. But your potential to prevail is enhanced when you own the error, tell it like it is, and ask for accommodation. Admitting you have made an error or omission may be more likely to get that continuance than some constrained and contorted story contrived to cover the error.
It is entirely probable that many of the errors that are occurring, the drafting that is not being proofread, results from the fact many are telecommuting. What used to be interpersonal office exchanges of information and feedback have become for many weekly Zoom meetings, telephone conferences, emails, and texts. Obviously it is easy to recognize that this social separation will be a challenge for us all initially.
But, if you are to prevail in your legal practice, you must overcome these challenges. You must get the elemental evidentiary foundations in evidence. You must make sure your pleadings are coherent, cogent, and complete. You must make sure that the digital divide does not become a destructive distraction from the goal of this litigation (to demonstrate your point with competent evidence on each statutory element, which you explain in argument).
You must admit to yourself that everyone is challenged, none of us is perfect, but each of us can grow. Through change in process, or pace, or focus, we all have to do better with our commitment to those critical statutory elements and effective written communication. If you fail to prove each element required, you are unlikely to prevail. If you fail to communicate effectively, you are unlikely to prevail. The point of legal practice is to prevail for your client. We have to commit to grow and do better.