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."