Thursday, September 29, 2022

Thoughts on Safety from the News.

We pause and think about safety periodically. There is a vast assortment of challenges out there in the world that may result in an accident. Workers' compensation is built for such instances and remains focused on safety after about 100 years (in some jurisdictions a bit more, in others a bit less). The thing about workplace accidents is that none should be ignored. We can learn from any event. However, that said, it is tough to get over some of the most tragic.

This month, the news brought us Jermani Thompson. She was just 26 and working in one of those jobs that involve a great deal of paying attention. She was a baggage handler. I had some experience in representing the airline industry and know well how many moving vehicles and things there are in the part of the airport that you don't visit as a traveler. Ms. Thompson "was working to offload an inbound aircraft after it landed when her hair somehow managed to get stuck in the belt loader," according to ABC7

The report says that "The circumstances surrounding the incident are unclear." What is clear is that someone lost a child, a sibling, a niece, something. There will be investigations, questions, and conclusions in days and weeks to come. After someone is killed, there are always questions.

Sometimes such events lead to the imposition of fines. In late August this year, a fine was announced in the case of a "30-year-old Peoria resident" who was in the food service industry. She had a scooter accident and likewise passed away (February 2022). The Occupational Safety and Health Administration (OSHA) investigation concluded that the "death was due to safety failures." It "found the company vehicle crashed because a strap had been placed to keep the gate open." the Employer was fined $20,302. This is a reminder that altering the design or plan (having a gate) with some interim solution (strap) may not always be thought through as extensively as the original decision to install such a plan or device. 

These are tragic and somewhat violent ends. But, a South Carolina example in the news last week was troubling in other ways. A 63-year-old woman was working as a janitor in a retail store. She apparently did not come home from work, and her family filed a missing-person report. The police began an investigation and visited the workplace. They discovered her in "a public restroom." She had passed away, and there is an ongoing investigation as to the cause.

For four days, this lady's body was in the public restroom "during a busy shopping weekend," and yet was not discovered. The question being asked is how this was not noticed by any passing customer. There is some curiosity as to how her coworkers did not notice her absence "and go and check to see where she was." And, "with the investigation in its early stages," one person noted, "there are a lot of questions that need to be answered."

These are each very different instances. Each made the news for different reasons. Each is a sad instance of loss of life. And, perhaps, each may illustrate to some degree that there is great value in the attentiveness and attention of our coworkers. There are risks that persist in the workplace. Some may be work-related, and others not so much (one might expire at work purely as happenstance). However, in the workplace, we are all in a community. To the extent that we might, there is a great value in our looking out for each other generally and focusing on workplace safety specifically.

There is value in reminding coworkers to "buckle up" or don their hardhat, hearing protection, gloves, etc. Why are those safety devices needed? The more serious the risk, perhaps the more attentive we should be for ourselves and for others? There is value in questioning why something is. That is, "why is that strap there?" or "is that a danger to someone that might not see it?" There is value in noticing that something is out of place (janitor cart unexpectedly in the bathroom for days) or someone is missing for days. Inattentiveness and lack of engaging our coworkers present the potential for accidents, injuries, and even tragedies. 

Each of these losses has affected someone. The loss to family, loved ones, and friends is pertinent, permanent, expected, and sorrowful. But, the loss to the community, coworkers, and management is often times also very difficult to accept and process. In an effort to avoid having to process it, my suggestion is more persistent and directed focus on safety in the workplace, vigilance for our coworkers, and patience with the processes in place to assure our safety and that of our coworkers. Warn a coworker, remind a coworker, care about a coworker. Be persistently aware of surroundings, risks, and challenges. Follow safety rules and appreciate when a coworker provides a reminder or warning. 

I remind students persistently that they must look out for their own best interests, that they must take responsibility in life for their own safety and well-being. We must each remember that life is fleeting as well as precious. What we do to acknowledge that and protect ourselves and each other says much about who we are. 

Tuesday, September 27, 2022

Quiet Quitting

Social media came alive recently with a discussion of the concept of quiet quitting. For those of you unfamiliar with the topic, it is a process of withdrawal, resignation, and acquiescence. It is an approach to employment said to be popular with the younger generations. They are in search, they say, of work-life balance. They perceive the world in which they "work to live," rather than "live to work," to take a page from Noel Gallagher.

As the discussion persisted, it spread to outlets like National Public Radio, which tied this evolution in part to the pandemic and its impact on the "workplace culture." Gallup, a polling organization, quickly concluded that the quiet quitters are "at least 50% of the American workforce." Its coverage also concludes the trend is currently increased but seems suggestive that the concept is hardly new.

Those who want a balanced lifestyle are in the majority? Hardly breaking news. Those who are disenfranchised at work, unmotivated, disappointed, disenchanted, or otherwise not engaged are the majority? Sorry, not news. Management is a challenge, people can be hard to figure out, and inspiration is elusive? So not news. The headlines can be proclamations and excitements, but the news is not always news. Sometimes, it is just the facts and unless the facts are changed they are hardly news.  

In fact, the Los Angeles Times made a point on the novelty question. It proclaimed that "Gen Z didn't coin 'quiet quitting' - Gen X did." With reference to a hilarious Hollywood tribute to the concept, it decries any claim of recency. See Office Space, (20th Century, 1999). You know you are aging when the news foists you upon a pop-culture reference that is a quarter of a century past. There was also an expose of a Hollywood assistant who has "been 'quiet quitting' for over a decade," and who advises that "it's OK to be mediocre."

Admirable and enviable, without a doubt. Life balance is a comforting buzzword phrase. Striving for "mediocre" perhaps less so. But, to work less, succeed more, enjoy more, and have more, are perhaps persistent dreams of anyone born without the proverbial silver spoon? Everyone is at least somewhat in pursuit of such balance. Notably, however, the so-called "quiet quitters" are not so much "slackers" who don't do their jobs. These are a cadre of employees who do the job they’re given, but offer a little if anything more. Some might suggest that they are essentially the ever-present backbone of the working world. 

There is nothing to suggest that they are not productive. No allegation is made that they are undependable, dishonest, or untrustworthy. They are neither unwanted nor unproductive. The point is not that they are any of those derogatory labels, but that they are not perhaps that for which management or ownership wishes or even pines. They do what they must, and then they head for the beach. Not subpar and worthy of termination, but similarly not the go-getter worthy of that promotion.

The "quiet quitters" are not the over-driven young urban professionals (yuppies) of the 1980s. If they even perceive the brass ring, they express neither intention nor motivation to make any attempt at seizure thereof. In point of fact, these workers are not "quitters" in any sense of the word. They are, essentially, people who have made a decision to persist in the role which they have achieved without the distraction of dreaming or aspiring to some greater role. Well, not rationally aspiring to some greater role; it is possible that they daydream of some fateful chance elevating them from their current mediocrity.

These are employees that are not in search of the next opportunity, not in pursuit of the next promotion. These are individuals focused upon the here and now, the sufficiency of the assignment specifically delegated, of doing their basic duty and departing for home. From this regiment, don’t expect nights and weekends. From this compliment, don’t expect volunteerism and exuberance. They are adequate to their roles and economical in their effort. They are, in a word, "sufficiental." Before you look it up, I made that word up

Social media celebrates this, and articles are written. The Internet comes alive with discussion, articles are written, and social media applauds. If social media loves it, it must be good. However, I question the perception that this is something new. This is not, from my perspective, new, unique, or newsworthy. There have always been workers without motivation, aspiration, or inspiration. I have worked with a great many of them over the decades. They exist in offices, restaurants, education, manufacturing, service, and more. If I am shocked in any way it is the conclusion that they are merely "at least 50%." In my pre-law careers, and there were several, I would have estimated more like 70-80%. The vast majority. 

I have worked with a vast array of the silent generation, baby boomers, Gen X, GenZ, and more. I saw many examples of quiet quitting in each. I would submit that the concept is not new, merely the label. I would suggest that the attitude is not unique, only more condoned today. There is an expansion in the acceptance of mediocrity in the workplace, and sympathy for the sentiment that despite shortcomings of motivation, productivity, or drive, such workers nevertheless should be amply rewarded. The argument for better pay and benefits is not based on production or success but on "fairness." What is "a living wage" and shouldn't everyone be taken care of?

The arguments are floated with difficult to decry labels such as "the living wage." The sentiments of socialism ("From each according to his ability, to each according to his needs," Karl Marx, 1875) seem to persistently grow stronger in society. The labels and phrases change to disguise the Marx, but remain right on the marks. Why should a person labor diligently, extensively, or even obsessively in some pursuit of making others comfortable or rich? Why go the extra mile when there is nothing more in that for me? The fruits of labor might motivate more, if the fruit did not have to be persistently shared with the mediocre fellow traveler? How many quit quietly because others before them have been tolerated, compensated, and retained?

I have seen many an employee come and go over the hurt feelings of wages that did not keep pace with perceptions of worth. But that is not "quiet," that is merely "quitting." The tradition of quitting is certainly not new. And, the quiet variety is not new or novel either. It is merely labeled and lauded. 

Is quiet quitting lamentable or praiseworthy? Is there anything wrong with being adequate, dependable, and predictable? In a world of challenges and competitions, is there anything wrong with being willing and satisfied to do the tasks to which one is assigned? While I have heard managers complain about the unmotivated, the "adequate," the "plodder," this seems a new acceptance or popularity of the role. Those workers are perhaps uninspired, but they are getting the daily work done. If that worker was more competitive, more motivated, or more ambitious, a manager might worry that they would quit and go work somewhere else.

The recent excitement on social media is noted. The new label is interesting and thought-provoking as it overlaps the passivity and subtlety of "quiet" with the action and motivation of "quitting." Whether by intent or default, one is in a career path, position, or posture that is not inspiring. One withdraws emotionally and merely does what is expected. This is simply not new. While the "next generation" perhaps wants to own it, and commentators want to weave it into our Pandemic, it is simply not new. The motivation may be influenced by our recent appreciation that life is short and perhaps fragile, but that likely justifies rather than motivates the quiet quit that is at least 25 years old. 

People will be individuals. They will perform at work based on their personal motivation, inspiration, and expectation. Management can strive to affect them, change them, and profit. That is dependent upon management's determination, effort, and drive. To what extent are they willing to invest in the challenge of lackadaisical producers and adequate ("mediocre") performance? Or, in today's environment of recruiting and retention challenges, to what extent are they willing to tolerate and work around those who are willing to do exactly what is required and nothing more?

That is not to say that the future is bleak. If only half of the workforce is quiet quitters, what is the other half? Certainly, some of them are likely the actual quitters. But, as certainly, some portion of that other half are the movers, shakers, and drivers. Managers who find themselves fortunate enough to find such an employee, if in fact that is what is desired or valued, should be careful to make such value felt and appreciated. How many potentially great employees have left your firm, or company, or concern for greener pastures elsewhere? What did you do to value, reward, and retain them?

Managers who aspire to change participation and motivation will have to inspire and drive change among the "quiet." Workers who are content with the status quo and want no more will likewise have to be content with the rewards that flow therefrom. Marxism is long disproven. Every example of socialism in the world eventually fails. Those who do produce inevitably tire of carrying the masses that simply want to subsist and take. To each, according to what each can forcibly extract from others at the point of legislation, is no recipe for societal progress, merely a slow path of diminishing all to the lowest common denominator. 

In our society, if the work is mundane and rote, the pay likely will be also (at least until they program a computer to do it, and replace you completely). There will be those in each camp who are satisfied and those who will complain or lament. There may also be a few in each camp who can inspire change or who can be inspired (to thrive or to quit). The world will continue to turn, management will continue to challenge, and workers will continue to work. "Water is wet, the sky is blue . . .." Nothing new to see here folks, move along.

Sunday, September 25, 2022

Life Expectancy and Risks

Life is unpredictable at best, periodically shocking. I received an email Friday advising of a death in the periphery of my circle. It was perceived as notable enough that the first email was followed by texts and other emails. The immediate reaction, as in similar circumstances, is always to question age. As I chronologically progress, I have been persistent in my perception that only old people die. Thus, when I learn of a death, I turn rapidly and instinctively to the "how old was s/he." As I age, the definition of "old" has also evolved and I find myself losing contemporaries at a far more rapid pace than I recall. 

In this instance, I was surprised with the answer - 74. By any stretch of the imagination, that is simply not old (O.K. unless you are under 10, perspective matters). Life expectancy is not what it always was. It seems like my lifetime has been a constant, or at least persistent, parade of announcements regarding the improving life expectancy of Americans. That ended in 2016, see Life Expectancy Changes (November 2016). We were shocked then. That trend, it seems, continues in 2020 and 2021. Our life expectancy declined in each, according to the Centers for Disease Control. That may be pandemic influenced, drug use is playing some role, perhaps other causes. 

Life expectancy in 2021 declined to "76.1 years," which "took U.S. life expectancy at birth to its lowest level since 1996." But, that is not 74. The way that statistics are kept, with these persistent references to race, origin, and gender, is somewhat questionable in a world in which such characterizations are decried and perhaps even fluid. But, the CDC keeps track of these trends based on race and gender. The biggest decrease in life expectancy was "on-Hispanic American Indian-Alaskan Native people (AIAN)." That phrase requires some unpacking.

The "second biggest decline" in 2021 was "one full year from 77.4 in 2020 to 76.4 in 2021." This was for the "Non-Hispanic white people in the United States." It was about one such person that I received that email Friday. The expectancy, or average, is 76.4 years. In that context, the answer of 74 is not perhaps so very shocking. Troubling. I will grant you troubling, but not shocking. Would it be shocking to learn that those expectancies are "from birth," and that instead, the expectancy for a male that reaches 74 would be another 12 years? You see, expectancy is about surviving, and the longer you do so, the more chance you will continue to do so. 

In the age of SARS-CoV-2, there would have likely been conjecture and questions perhaps about the role that malady played. I tired quickly of the debates regarding what role COVID did or did not play in various passings since 2020. Its role was difficult to define, complex to analyze, and frankly beyond most of us to comprehend or categoririze. I will not miss the pandemic, "you can't make me, you can't make me."

The declining life expectancy generally was juxtaposed this last week by surprising news of cancer survivability in the U.S. CNN reported that "more people are surviving cancer than ever before." The conclusion is founded on recent reporting by "the American Association for Cancer Research." The population of cancer survivors is dramatically increased over the last 50 years. And, the
"overall survival rate has increased from 49% in the mid-1970s to nearly 70% from 2011 to 2017, the most recent years for which data is available."
There is great hope and promise in those numbers. Of course, these may similarly be more about survivability, survival, and the higher life expectancy for those who reach various levels of maturity. But survivable is nonetheless worthy of celebration. 

I would have thought that cancer was the big threat to us all. But, the CDC notes that "heart disease is the leading cause of death for men, women, and people of most racial and ethnic groups in the United States." That is apparently what struck the 74-year-old Friday. A reportedly "massive heart attack" that was perhaps a known threat or a complete surprise. Heart disease is bigger than cancer, Covid, and the accidents with which workers' compensation is so often associated.

Mayo Clinic notes that "sudden cardiac arrest can happen in people who have no known heart disease." The fact seems to be that one may learn of risks, suffer symptoms, and be challenged to manage. Others may have little or no warning that such risks threaten. A heart attack may follow a prediction or premonition or could be a sudden and unequivocal surprise. For that matter, stroke is worthy of your attention for the same reason(s). And, one never knows for sure if those premonitions have occurred. People are generally rather close with their medical details. Thus, when an associate died suddenly and unexpectedly last spring, the questions of "why" and "how" cascaded. 

So, we have met the enemy. Heart disease. It turns out that medicine is going to make great strides, see the cancer discussion above. There will undoubtedly be improvements in heart disease as well. The Mayo Clinic suggests some actions through which you might help the medical profession to help you with heart disease (bullet points are direct quotes):
  • Don't smoke or use tobacco. One of the best things you can do for your heart is to stop smoking or using smokeless tobacco. 
  • Get moving: Aim for at least 30 to 60 minutes of activity daily. 
  • Eat a heart-healthy diet.
  • Maintain a healthy weight.
  • Get good quality sleep.
  • Manage stress.
  • Get regular health screenings.
Some of those are seemingly easier than others. I started an odyssey in January 2020 to lose a few pounds. The isolation and serenity of the pandemic soon thereafter, and its impacts, only made that easier for me. However, I know a fair few who gained weight during that period. Know that with a diet high in fiber and protein, low in processed foods, fats, and sugars, weight loss is not really a mystery. Add in a good 10,000 daily steps and you are on your way. Those steps will also likely help you with the stress and the sleep. In fact, diet and exercise might just solve all the world's problems (we would all be too tired to fight about anything).

In the end, I am tired of hearing of deaths. For you younger readers, know that I recognize death invades your world periodically. Know also that as you age, it becomes increasingly pervasive and recurrent. Too many die, and we are powerless to prevent it. There will be strides. You can make a difference. But, in the end, the end will come nonetheless. Friday brought yet another entry in the parade that has been my recent existence. Another chance to contemplate that somewhere in this parade there is a float with my name on it. 

Have a good morning, I'm going to go walk three miles and grab some carrots for breakfast; then maybe a nap?

Thursday, September 22, 2022

Trial Academy 2022

There is a very important case playing out in Tallahassee this week. A supervisor seeks relief following allegations and conclusions of misfeasance or malfeasance. It appears drugs were purchased, coworkers or subordinates misused. Win, lose, or draw, the facts are troubling, confusing, and even confounding. No, it has not made the news, and it likely won't. While there are some rather salacious allegations and even innuendos, it will not likely attract a single reporter or garner more than this one mentioned in the press. And that is assuming you are willing to play along and pretend with me that this is actually "the press," an imposition to be sure. 

I was there Monday for the start of the whole expose which will be the trial(s) of this matter. I met some of those involved. There are Ivy Leaguers, elders, neophytes, and more. Some are judges, apt and able. In fact, this odd little case will require a great deal of judicial effort and dedication. There will be no less than 20 involved before it is all over. They will coach, collaborate, and conspire in those efforts, but there will be collegiality. There is great merit in collegiality, often taken for granted or overlooked. 

Also involved are literally the best and brightest of tomorrow. The case has attracted attorneys from a variety of law firms, state agencies, and more. I recognized a handful. Some of them I know by reputation or reference, others through first-hand experience with their work ethic and intellect. To be blunt, there was a great deal of both brain and heart sitting in the opening session. It was, in a word, encouraging. In two words, inspiring.  

The case is a fraud, a fake, and a sham. That is blunt but accurate to a fault. You see, some creative judges made the case up, contrived the facts, and lured these young lawyers into its clutches. It is a mock trial that is being studied and notably, almost 100 lawyers have elected to invest a week of their careers into the opportunity this little scenario will require. They will be challenged, tested, and tasked. They are not alone in their faith. They are here because law firms, agencies, and companies see value in this investment of time, intellect, and energy.

The lawyers are energetic and enthused. Their coaches are thorough pedagogs, at times pedantic, persistently forbearing. These coaches are, largely, the product of a different age. They came to the practice in an era that had never heard or foretold anything like Zoom. They earned their stripes as young lawyers doing the increasingly unlikely: trying cases. Years ago, we young folks were allowed to take depositions, argue motions, try cases, and fail. Boy did we fail? We learned a lot from falling, and getting up, and if we were lucky we gained from the advice of the old codgers whose "old age and treachery" kept overcoming our "youth and vigor." I saw that on a coffee cup once. 

I get a lot of interesting answers when I ask my students why they are interested in law school. My favorites are the perennial "to help people," and "to champion the downtrodden" (who talks like that?). This semester an honest student confided to the class "to make lots of money." Alas, honesty, brevity, and clarity. But, in the shadows, there frequently lurks the "to try cases." It is a draw, a dream, a grail. To get to trial is an achievement, to succeed in it is a thrill. To persist in it for a career, that is an enormous success. 

There are many old lawyers, but show me one that still revels in trying cases after a career in the trenches and I will show you an exceptional lawyer. I am persistently surprised by the lawyer ads that proclaim their trial ability and expertise. From where I sit, a great many lawyers do not try many cases in the workers' compensation system. 

I was not part of the parade Monday. The floats and the dignitaries were before me though. I sat on the curb and watched them launch. They were distinguished, polished, prepared, and enthusiastic (and that was just the judges). They, students and coaches, are each, to a person, engaged and enthused this week. The energy as the cavalcade passed was palpable. The students are there to strive for the experience that too infrequently visits the young lawyer of today. They will be mentored, coached, and coaxed by their judge and attorney coaches, and they exude eagerness for that experience. 

They will, if they are half as bright as I perceive, listen, absorb, and contemplate. Wisdom will flow, competing for their attention, and they will each decide whether and what to absorb. If I could give them one piece of advice it would be to listen. Listen actively. Listen persistently. Listen patiently. Listen constantly. You are surrounded by the keys to learning: great intellect, patient coaching, and intellectually superior collaborators. Yes, "superior." Always assume that your peers around you are smarter than you are. Listen to them, ponder what they share, and question what they don't. You can learn so much from your peers if you remind yourself of their values and strengths. 

This is the third annual Division of Administrative Hearings (DOAH) trial academy, nicknamed "Top Gun." Believe it or not, there is even a motorcycle in the Desoto Building lobby commemorating the Pete Mitchell in us all. The DOAH team has gone above and beyond to develop a theme, to be hospitable, and to welcome the Tallahassee community for this experience. 

It is a growing and broadening experience for young lawyers to take a reservoir of academic knowledge and begin the task of applying it to the challenges of litigation. They will love it, hate it, revel in it, and perhaps despair. Litigation is exhilarating, frustrating, beautiful, and gross. For those who get it, it can be an exceptional career. But, as they say, "it ain't all roses." About 100 young lawyers will get a great antipasto of it and its emotions this week. They will grow and learn. If they listen. Listen to the coaches, the critics, and each other. Collaboration is a tough teacher, as are experience, failure, and success. Each has value for those wise enough to find it.

This week the trial academy takes an odd dispute and tries to frame it within some of the most convoluted and confusing statute sections they could find. There is argument as to whether the villain is a victim, who supervised whom, and whether there were or were not overt acts, innuendo, and influence. Definitions will matter. Phrases will be parsed. Inquiries will be made. Arguments will be constructed. There are certain misdeed(s), arguable motivation, strained statutory construction, and mischief. Victories will occur, but some degree of defeat ultimately awaits all but one team. 

You see, in a game, the rules may differ from real life. In the real world, you might gauge your chances, calculate your odds, and strategize your plans. The organizers of this year's competition saw at least one potential for mischief as regards one of the most challenging aspects of this scenario, an expert witness, and forestalled it. "You will call the expert to testify" pronounced Judge Newman in the opening (he didn't specify how long that expert has to be on the stand). While that addresses one particular potential for a mischievous maneuver, I am confident in assuring you that it will not foreclose them all. Lawyers, you see, are very adept at tactical choices. 

In short, I drove away from the opening day encouraged. First, that there were 100 lawyers that cared enough to come and learn. Tomorrow, indeed, "ain't as bad as it seems." As much, however, that all of these judges devoted a week of their professional lives, precious time, to these people and their aspirations. More still to the Bar, particularly the Administrative Law Section, for bringing the resources that make such an undertaking practical ("practical," not "possible," it could be done without the coffee, cookies, and more, but what's the point in a world without cookies, really?).

Heartening, inspiring, encouraging, reassuring, I could likely find a word or two more in my thesaurus. But, suffice it to say that there is an obvious and impressive cadre of up-and-comers gathered in Tallahassee this week to hone their skills and sharpen their wits. I eavesdropped on some of their rumination, exposition, and preparation. They are tomorrow and tomorrow is indeed grand. 

Congratulations to all involved. I am grateful for their dedication, vision, and participation. 

Tuesday, September 20, 2022

Changing things

“Si mi abuela tuviera ruedas seria una bicicleta”

“If my grandmother had wheels, I would have been a bus.”

“Aye, and if my grandmother had wheels, she’d be a wagon.”

Idiomation provides us a historical perspective on these similar adaptations of a 1908 German book. The point of each, the overarching theme, is "that people will sometimes throw irrelevant questions or comments into a discussion thereby changing the original focus." 

I had a law school professor that thought this saying was the most clever he had ever encountered (or at least he acted like it). His adaptation was a persistent response to students striving to solve his little riddles by adding conjectured additional facts ("well what if he had a _______"). The professor would smile and say something like "lets' keep the wheels off of my grandmother." He apparently found this immensely entertaining and seemed to think we all did. 

That professor was maddening, devoid of real-world experience, and oblivious to his shortcomings. God rest his soul, I learned a lot from his poor example. As Norman Schwarzkopf said:
"You learn far more from negative leadership than from positive leadership. Because you learn how not to do it. And, therefore, you learn how to do it."
I was recently reminded of putting wheels on one's grandmother when the news one morning included an intriguing story about the orbit of Jupiter, and how adjusting it might make the earth more habitable. The article led with the recognition that we are immensely fortunate and lucky. We are indeed winners in a cosmic lottery, as there is "exactly one world, in all the Universe, that we know for a fact to be hospitable to life: ours." Yes, against all odds, here we are. Without the successful and cumulative confluence of so many variables, the miracle of our existence would not have occurred. 

Here in this space that results from the compounding of so many seeming coincidences, we strive for improvement in our human condition and existence. With more success on some days than others, there are a great many people striving against odds and making the world a better place. They are making workers' compensation a better community. We could call out a great many of them. 

They are educating, writing, training, commiserating, planning, refining, and more. They are advocating, criticizing, and challenging. Often, they are asking "why" or "why not" as regards how these systems work. Our community is better for them, and often we can stand on their shoulders to make more difference still. They see challenges in the world, and they ask how they could make it better. Perhaps, they posit, "if we put wheels on your grandma?"

The crux of this Jupiter article is about making our world more habitable by shifting "Jupiter's orbit . . . slightly." This is about as whimsical as one might stretch because there is neither capability nor motivation on our part to go shifting the orbit of any celestial body. This is both purely hypothetical and quaint. It is a mental exercise engaged in by some academics, on the premise of the question "what if?"

Their new study examines the "many moving parts and ingredients in the Solar System." They strove to determine "which ones contribute to Earth's habitability." This, they conclude is "extremely tricky." Though we may be convinced in our naivete "that Earth is the epitome of a habitable planet," this group's study and effort demonstrate that if we could put some wheels on your grandma things could be better, the Earth more habitable. That is, you see, in their opinion(s), personal or collective. 

We obviously cannot put wheels on your grandma or on Jupiter for that matter. In large part, the hypotheses of these scientists will struggle with the legal standards for opinions, the so-called Daubert standard. See Daubert Better Explained (May 2016). The questions might include whether the scientists' conclusions have been peer-reviewed, tested, and confirmed. It is not likely that being smart and logical is always sufficient in such scientific endeavors when it comes time for testimony and opinions. 

We cannot shift the orbit of Jupiter. But, there was a day when many thought we couldn't put a man on the moon. We have seen such progress, innovation, and change in our world in just my short (relatively) time on this planet. I can only imagine what tomorrow will bring in gadgets, gizmos, and conveniences. But, this study of Earth is perhaps relevant, say the scientists, in building a more autonomous and idyllic model of what is the "most habitable." In other words, as much as we like the Earth, what conditions would make a planet ideally habitable. It is this hypothesis that is the crux of their effort, conclusion, and focus. 

From this study and academic pursuit, they have theorized how this planet would be more hospitable if Jupiter (or your Grandma) had wheels. Thus, they model what the ideal planet would look like in the "habitable" characterization. With that knowledge, they believe they can now search the other planets of the cosmos for the "most habitable" rather than merely for the "most like Earth." The effect of their research is not necessarily dependent upon Jupiter at all, but is a consensus of their belief in defining "ideal."

There is acknowledgment in the article that we may lack perfect perspective. These results are perhaps too focused on the what, "habitable," and not on the who, as in habitable for creatures similar to us, carbon-based, etc. It also notes we do not have tools to "conclusively gauge the habitability of an exoplanet." That is, even if we are correct in what to look for we may lack the tools to appropriately evaluate what we find. Does relative location matter? Do size and mass matter? And, there returns the challenge if Daubert, how would that be proven in an experiment setting?

The scientists also acknowledge the folly of considering shifting a planetary orbit. They admit that even a slight miscalculation or adjustment might instead render the Earth and even our solar system utterly uninhabitable. The lesson, perhaps from our historical past, might be on nonmaleficence "first do no harm." That is, as Daughtry noted:
Be careful what you wish for
'Cause you just might get it all
You just might get it all
And then some you don't want

What if we could similarly make some light adjustments and in the process make workers' compensation more inhabitable? Could we make some difference(s) without such grandiose ideas as shifting the orbit of a planet? If we are careful in our approach and conscious of the potential risk that we might effect harm, and we strive to minimize that harm, might we make changes in this space? 

There are a handful of people that are striving to make a real difference in the world that is workers' compensation. Some may consider our efforts to make as much (or little) sense as hypothesizing on shifting Jupiter's orbit. Admittedly, we may never move mountains. But, we might just learn something in the process(es) and analyses and it may be that some adjustments are possible.  

Leave behind the bias of your home (admit that Earth is not necessarily the "most habitable" or the "epitome"). In other words, shed the bias that your own state system is "best." Ask yourself instead what would "best" (or "most habitable") look like if I was answering the question "how do I best protect employees and employers?" In such a mental exercise, we might put wheels on a lot of grandmas. But, would we all benefit from asking "what would make this space more habitable?"

You might even consider my law professor of yore (God rest his soul) and think "what could I learn from a bad example?"

Sunday, September 18, 2022

Why so Many Words?

The concept of electronic filing was conceptualized early in the 21st century and eventually deployed in 2005. I never imagined or envisioned where we are today, but was an early adopter of accepting emailed PDF files early this century. As the system (e-JCC) was born, I quickly became a fan and enthusiast. The FloridOJCC led the e-filing revolution and we are proud of that. The development and evolution of that process have been aptly documented and does not be repeating here. 

Suffice it to say, that the process has saved lawyers, parties, and the state millions of dollars. Those are hard savings in paper, postage, and more. There have been greater savings in efficiency, saved time, etc. It has been nothing short of revolutionary. Practitioners will know that in that process, in the evolution since its inception, the OJCC also began generating orders at its district offices.

The procedural process of Worker’s Compensation litigation in Florida was materially and coincidentally altered by the supreme court‘s admission in 2004 that it lacked authority to enact procedural rules for this office. The legislature had long before statutorily shifted rulemaking authority to the Office of Judges of Compensation Claims and then the Division of Administrative Hearings. Shifted, because the Legislature had initially acquiesced in the Supreme Court's 1973 usurpation of authority in adopting OJCC procedural rules.

Notably, the adoption of rules by DOAH in the twenty-first century led to litigation. Many lawyers were convinced that the legislature, and it's directing the adoption of administrative rules, was instead somehow usurping the authority of the courts. An entire generation had practiced a career under those Court rules, over about 30 years. The Supreme Court involvement in this administrative agency was familiar, comfortable, and habit to them. But, it was wrong. Seeing lawyers that could (would) not understand that was troubling. It was an interesting time to live and grow.

With the adoption of administrative rules, came the broad prescription of the submission of proposed orders. Proposed orders were once the norm, and were expected with motions. The Administrative rule vision encompassed, instead, the production of orders by judges. To some that was a novel concept, even perhaps radical. Imagine, judges producing orders? To some lawyers, it remains a novel concept today. 

Despite the procedural rules clearly and succinctly instructing not to submit proposed orders, the practice persists with some attorneys. Rule 60Q6.103(4)("proposed orders shall not be submitted unless requested by the judge"). There is seemingly no question regarding the meaning of "shall not," nor "proposed orders." I ask judges periodically why they perceive lawyers still doing so, in violation of this rule, and the response is usually "habit, I suspect." 

This proposed order habit or artifact from yesteryear periodically comes to my attention, as it did recently. A judge executed an order submitted by the parties, and the order did not include a certificate of service. That rare instance in which untoward behavior (submitting proposed orders) is met with acquiescence (using proposed orders) perhaps encourages the rule violators in their persistence?

In reviewing the missing certificate of service matter in this instance, it soon struck me that half of the first page of that order was consumed by a style that listed the names, addresses, and more of all parties. I have seen examples in which the entire first page consists of such surplusage. You would literally have to proceed to page two even see the title of the motion. I considered publishing an image of one of those for clarity but decided to avoid embarrassing anyone for either their antiquated surplusage habit or rule violation. 

I did check my surroundings for signs of Marty McFly (Back to the Future, Universal, 1985). None were found. I was, nevertheless, feeling as if I’d been pulled into a time warp as I viewed that long page of names, addresses, and phone numbers. My fellow old–timers will remember that such a case style was once normal, “back in the day." That is, in the 20th century. However, great portions of our 20th-century efforts have yielded to modernization, streamlining, and efficiency. Gone are "open motion calendars," "joint petition days," color-coded orders, and various other eccentricities and inefficiencies. The rules changed. Technology changed. And in the end, we changed (well most of us). Why has your practice and case style not?

Most of us changed. But some still fill vast spaces with anachronistic case styles loaded with redundancy and superfluity. What could be simple one-page order with a normal, modern case style is easily two pages due to this senseless homage to yesteryear. It is more frustrating when the lawyer has so assiduously prepared such a style and then omitted the certificate of service. Certainly, with electronic service, the listing of recipients is of less necessity. But, in this instance, the order was on withdrawal of counsel. We will always wonder if the Claimant was served with that order as there is no electronic service record, and the order is silent, deficient, and lamentable. Is the mistake on that certificate issue:
  • the lawyer's for submitting a proposed order?
  • the lawyer's for not including the certificate in that proposed order?
  • The judge's for not preparing her/his own order?
  • Answer "D" was always troublesome "all of the above?"
In preparing this post, I wondered how many gigabytes of memory is being consumed by the volume of proposed orders submitted in violation of the procedural rules. Each day, our database of filings grows. It is inexorable, persistent, and cumulative. It is amazing that the Rules literally say "shall not" and yet lawyers still do. That these orders include the 1990s antiquated case style and its wasted space merely consumes space in the database. 

I also wondered how much attorney and paralegal time is consumed each day in preparing such proposed orders. And I wondered why such effort is persistently invested in these large, unnecessary, and antiquated case styles. Is it because of habit? ("we've always done it this way."). Are those data points already lodged in the attorney's data system and the antiquated forms are too numerous to adjust and modernize? Is it just easier to continue to produce without ever considering a better, more efficient, process? See The 5 Monkey Parable (February 2021).

If the issue is that an attorney's forms include this massive case style, and it would take time to modernize and rectify, why not fix one form at a time? Perhaps one might use "copy and paste" in a process where the style is fixed but once, and then pasted into other forms? Abraham Lincoln is credited with saying "if I had only one hour to chop down a tree, I would spend the first 45 minutes sharpening my axe." Getting the tools right, though it would take some time, would make the work thereafter more efficient and productive. 

In the end, why so many words? Why are there filings with these large case styles that persist as we near the second decade of Administrative Rules in Chapter 60Q? They serve no purpose and they waste space. Save the time used building those old, clunky case styles. Save the space to store them. The case style should be simple, like this:

Anything more is a waste of our space, precious bandwidth, and your time. There is no reason for more. There is no reason at all for proposed orders "unless requested by the judge." Save the time of creating them. Save the space of storing them. 

Thursday, September 15, 2022

Mediation Success

Much is changing in the workers' compensation community. One of the hallmarks of 2022, when our successors look back from the future, will be the amendments to Section 440.44 and the requirement of 17 district offices. The convenience and geography of those facilities had to be balanced against their cost. In 2022, the Legislature saw merit in the reconsideration of facility locations and the 17-office requirement was deleted.

Therefore, many will look back and remember that it was in 2022 that the District Offices in Lakeland, Melbourne, and Pt. St. Lucie were consolidated. Lakeland was split between Tampa and Sarasota, Melbourne was split between Daytona and West Palm Beach, and Pt.St. Lucie was integrated into West Palm Beach. That was a significant shift of resources and caused a rethinking of OJCC operations. The District Office in Gainesville will follow in fiscal 2022-23.

There will be those, 20 years down the road, that will remember the in-person mediation of their youth. They will reminisce about their trips to the comp office for mediation, the camaraderie, and collegiality. They will sound much like some today who feel the same about the "good old nineties" and the open motion calendar process employed throughout various districts. To be blunt, there was much social interaction in this practice, and the trend seems now to head a different way.

To be fair, many tried telephonic appearances at mediation for years. They asked for it, and often complained to me when permission was denied. There were those who doubted "telephonic" and lamented it often. Others, the proponents, pleaded for a chance. When they got it, some mediated from traffic or other distractions. The detractors/traditionalists most often seemed to prevail.

Then the Great Pandemic brought telephonic as a way of life. That is on me, and I accept the blame. I ordered the system telephonic in reliance on the best advice the consensus gatherers expressed. We rode the roller coaster of masking or not, do this or don't do that. We did our best, and the OJCC team performed admirably. But, when the time came to return to in-person mediation, no one wanted to return. The consensus was to ask for telephonic permission and the mediators tended to agree.

As part of our accommodation strategy for the long driving distances between the consolidated offices, the OJCC elected to shif mediation to Zoom beginning in earnest in 2022-23. Some experimented with it in 2021-22 and it is well-liked. This will facilitate attendance with less travel, expense, and hassle. But, everyone must focus, avoid mediating in traffic, and continue to get the job done. Issues and cases can be successfully resolved with remote mediation. We You have proven it.

In 2021-22 the vast majority of mediations were telephonic. And, the success rates reported recently are noteworthy. We saw another marked increase in the volume of Mediation Conferences Held (+3.4%) up to 20,109. The volume of petitions either “Dismissed” or “Resolved Prior” remained fairly consistent, a sign that the increase in mediations reflected the increase in petition filing.

The outcomes were even more impressive. All of the potential outcomes were improved in 2021-22, except impasse, which decreased markedly. To summarize: more mediations, more resolutions, fewer impasses. The
volumes were:
Settled 6,322 (+5%)
All Issues Resolved 1,398 (+11%)
All Issues Resolved but Fees 2,939 (+10%)
Some Issues Resolved 2,907 (+6%)
Impasse 4,143 (-7%)
The timeliness of mediation continued to be a proud point for this Office. One hundred percent of State Mediators averaged less than 130 days to the first mediation in a case. That marks the FOURTEENTH consecutive year that this metric has been met by the State Mediators. The overall volume of petitions that were mediated within the 130 days was a resounding 98.3%. That, as they say, is consistency and perseverance. (who are they? Well me. I say that and appreciate the hard work of the mediators).

Continuances for mediation increased, by 23. The total of all mediation continuances in 2021-22 was 137 across the state. That is a tremendous achievement, and some mediators recorded zero continuances. With 29 mediators, that is an average of about 5 continuances per mediator throughout the year. That is phenomenal and I know it comes from the effort and dedication of a great team. The future may become a bit more difficult in that regard as petition volume climbs. However, we are hopeful that our recent addition of another state mediator will

As the 2022-23 year progresses, our customers will see Zoom become the default for mediations. We will see the information for joining mediations listed in the postcard order that is issued for notice in every case. We will see more use of Signeasy, for remote signature on documents and expedited completion of the paperwork process. Much as we did with e-filing, we will see progress and greater efficiency. This is due in large part to the enthusiasm and patience of the customer (you) and to the mediators we are lucky to have.

Mediation was a success in 2021-22 by any measure. We anticipate it will remain so and improve further in 2022-23.

Tuesday, September 13, 2022

Artifact and Anecdote

There is a concept discussed in the world of legislation and regulation, labeled "artifact." Merriam Webster provides the following definition:
"something or someone arising from or associated with an earlier time, especially when regarded as no longer appropriate, relevant, or important"
And, the world of workers' compensation has historically demonstrated some history of various artifacts, Jacobson v. Se. Pers. Leasing, Inc., 113 So. 3d 1042, 1048 (Fla. 1st DCA 2013)("the phrase seems to be a mere artifact of the prior version of section 440.34(1)"), as have other statutory settings. Trianon Park Condo. Ass'n, Inc. v. City of Hialeah, 468 So. 2d 912, 928 (Fla. 1985)("is an elaborate but irrelevant artifact"). 

The Florida workers' compensation law has evolved in regards to the view and treatment of settlements. Initially, all settlements required judicial approval, currently only those by unrepresented workers require true approval. These are described in sections 440.20(11)(a) and (b). Those in (a) involve cases in which compensability was denied at (or near) the outset of the claim. In 1990, when the provision for these settlements migrated from section 440.20(12)(a) to (11)(a), the Legislature added:
"Upon the approval of a lump-sum settlement under this paragraph, the judge of compensation claims shall send a report to the chief judge."
Back in olden times, we used to literally fill out a piece of paper with specific data points about such a settlement. The reader might assume that we would send that to Tallahassee by mail, but (I kid you not), we sent it by The Pony Express (July 2019). If you don't believe me, "look it up in your Funk and Wagnalls" (Laugh In, NBC, 1968).

That statutory reporting requirement made little sense in that it directed the collection of data, but expounded no purpose or goal for the data collection. As I travel the length and breadth of America studying the complexities of workers' compensation, I hear many anecdotal criticisms of similar data collection by states. Data is required but no one is sure what it is used for or why it is needed. There is periodic suspicion that such is "just artifact." That may be true in any particular instance or it may just reassure us as to why we do not personally understand. There are varieties of factual information collected, and processes thus questioned.

In 1994, the "why" in this instance was perhaps diminished with the addition to the statute of a further requirement:
"The Chief Judge shall keep a record of all such reports filed by each judge of compensation claims and shall submit to the Legislature a summary of all such reports filed under this subsection annually by September 15."
So, then the assigned Judge at least was in a better frame of reference. When staff asked "why do we have to complete this form?," the Judge could reply "the Chief Judge needs it for the report to the Legislature." That is perhaps imposing and official, a great justification. But, it begs the real question.

The next thought might be "why does the Chief Judge need to submit this data to the Legislature." Well, that is pretty clear. Because the statute says so. And, it has since 1994. For almost thirty years, we have been diligently collecting this data and dutifully submitting it. And, without question, none of us knows why. See The 5 Monkey Parable (February 2021). We did modernize the process and those data points are now collected by the database when such settlement orders are uploaded. We have made the collection process more efficient, but still do not know why the data is needed, or at least why it is needed each September. 

Every September for the last 17 years, I have received a data set from the Division of Administrative Hearings team with all of the pertinent information on settlements pursuant to section 440.20(11)(a). That has been compiled into an overview report of the prevalence and characterization of these settlements, and duly submitted. And, I don't know why. I have never had any follow-up questions or discussions with anyone in the workers' compensation community about these reports, their figures, or their implications. 

In 2010, I expanded the "settlement report" in an effort to use this required tool more effectively. So, for the last 13 years, we have concurrently provided extensive analysis and overview of the efforts of our state mediators. This is a deep dive into the mediation process and it has value to the marketplace. And yet, this information on mediation could easily be incorporated into the OJCC annual report required each December by section 440.45(5).

Similarly, the section 440.20(11)(a) settlement data could as easily be included in that December report annually. But, through artifacts no longer understood, this small subset of settlement data must be reported about 75 days prior each year, by September 15. Thus, as noted, (paraphrasing Lord Alfred Tennyson in his 1854 poem, The Charge of the Light Brigade):
"ours is not to reason why; ours is but to do and die."
And so, "do" we have and "do" we shall. The 2021-22 report is being sent this week to the Florida Legislature and will soon be posted on the OJCC website. The report is recommended reading as it documents each year where the mandatory mediation process is in Florida. Florida led the way to mediation generally, led its integration into workers' compensation, and led the way into mandatory mediation. Our mediation is unprecedented, unparalleled, and envied. More on that in a future post.

Today, however, we focus on the statistics for settlements pursuant to section 440.20(11)(a), where compensability is denied. This is one of two categories of settlement that require judicial approval in Florida (represented settlements no longer require approval per se, only the fees and child support do). The other category requiring approval also involved unrepresented injured workers, the 440.20(11)(b). Unrepresented worker settlements are a small subset of all settlements, and the (11)(a) is an even smaller subset of unrepresented settlements.

The volume of (11)(a) washouts has vacillated notably over the last 14 years. The highest volume was 99 in 2008-09 and the lowest was 54 in 2020-21. While it is interesting that there would be such fluctuation, It is critical to consider the incredibly small volume of data represented. The total volume of workers’ compensation settlements in Florida in fiscal 2021-22 was 24,410; the (11)(a) washout volume of 65 is about one-quarter of one percent of all settlements (0.0027). This is an incredibly small portion of the settlement population. Any particular category within the (11)(a) group, such as "statute of limitations," might be only one or two settlements in a year. One might liken them to unicorns of sorts, rare.

The aggregate dollar value of each year's (11)(a) settlements has also fluctuated significantly in that 14 years, from the low of $414,357 in 2015-16 to a high of $802,220 in 2021-22. That is a significant difference in terms of magnitude, but note that at the highest volume, this small subset of settlements does not reach a million-dollar aggregate value. The average value of each settlement fluctuated over the last 14 years between $4,847 in 2009-10 and $12,342 in 2021-22.

Notably, even with the wide variations demonstrated, The average value figure first exceeded ten thousand dollars in 2020-21 when the average (11)(a) settlement increased by 69%. Thus, the two most recent averages of $11,040 and $12,342 might be of significance as regards these particular settlements in terms of growth or trending upwards. That the major increase in 2020-21 (+69%) coincided with a notably small volume might be of interest. But, we must remember how scarce these settlements are. That the average value remained significant in 2021-22 as volume increased might also be of interest. 

It is possible that even one outlier settlement of notable value (high or low) might have a profound impact on the figures represented in such a small data set ("the effect of a single outlier on the mean, standard deviation, and variance diminishes as the sample size increases"). A brief comparison of 2020-21 and 2021-22 is worthwhile in furtherance of that discussion. The overall increase in aggregated value of the (11)(a) settlements in 2021-22 was $206,059. The 2021-22 “high” example in the “Causal Connection Lacking” category of these was $157,500, but the 2020-21 “high” example in that category was $50,000. Thus, over half ($107,500, 52%) of the overall increase in aggregate (11)(a) value for 2021-22 might be attributed to that one settlement.

Similarly, the 2021-22 “high” example in the “Positive Drug Test” category was $75,000, but the 2020-21 “high” example in that category was $20,000, a difference of $55,000 attributable to one settlement. Thus, approximately 27% of the aggregate increase in 2021-22 ($55,000/$206,059) might be attributable to that particular settlement. We might add these two together ($107,500 and $55,000; the two order differences total $162,500). Thus, two settlements (outliers) appear plausibly responsible for almost 80% of the aggregate increase in 2021-22, and the impact or influence on the analysis and the "average settlement" discussion.

Why is this tiny subset of (11)(a) settlements studied with such specificity? The answer might well be the famous "Spicolian" "I don't know" (Fast Times at Ridgemont High, Universal 1982). The analysis of this data may be of great interest in some analysis of the health or practicality of the Florida workers' compensation system. If so, I am not aware of where there is such interest or any scholarship or study regarding the (11)(a) data. It is perhaps as likely that the persistence of this data collection and reporting is an artifact whose purpose is lost to history. We perhaps collect and report this annually only because the statute says to do so. 

Sunday, September 11, 2022

September 11

The anniversary of September 11, 2001 will continue to bring memories for most. However, as we remember today, it is noteworthy that those born on that date have achieved "drinking age." The ages of 16, 18, and 21 carry significance in America, with each representing, in its own way, a progression toward adulthood. I seem to attach more significance to 21 than the statisticians; data on the number of Americans under 21 is hard to find. However, the Kaiser Family Foundation notes that almost 24% of Americans are under 19. Another 9% are under 25 (that is 33% total, a third).

As we mark twenty-one years since September 11, 2001, something close to one-third of us don't remember a time when boarding an airplane did not involve a security checkpoint. Much has changed in the last two decades, and air travel has seen notable change. There was a time when it was not uncommon for the flight deck door to open during a flight. Back then, the crew might even mingle with the passengers. As a young passenger, I recall being invited to the flight deck for a visit. Reinforced cockpit doors were among the earliest September 11 reactions. Many more followed.

People used to gather at a flight departure gate to say their goodbyes. There was no security checkpoint, x-ray machine, or boarding pass/identification check. Everyone was free to wander the concourse(s), to linger about the gates, and boarding passes were only checked at the aircraft or jetway door. In retrospect, it seems that the gate waiting areas are more crowded today than ever. That seems anachronistic to the seemingly smaller population now allowed through security and into the concourses and gate areas.

Carry-on baggage used to be simply accepted. Certainly, there were prohibitions on some things. But as National Public Radio noted a year ago, "The FAA allowed knives of up to 4 inches in length on board an aircraft." There was no prohibition on the blades used by "the people that did something" on September 11, 2001. A member of Congress somewhat surprisingly made that reference to the attacks in comments back in 2019 (“CAIR was founded after 9/11, because they recognized that some people did something and that all of us were starting to lose access to our civil liberties.”) Those "some people" were terrorists and what they did was mayhem and murder of ordinary civilians that were merely going about their daily lives. 

It was not just knives in carry-ons. In the days prior to September 11, 2001, I had seen people carry things like hammers, screwdrivers, power drills, and even circular saws onto airplanes. A friend swears he saw someone bring a leaf-blower, with fuel, but I cannot testify to that. I am somewhat doubtful as leaf blowers did not make the list of 474 items in carry-on baggage (gasoline made the list, it's a "no"). I recall being on a flight that included many who had just attended a baseball game and were returning home. At least 20 of them had souvenir bats they placed in the overhead bins. That was a different age. 

Some of us are old enough to remember when the security of air travel was even more relaxed. Until the 1960s and 1970s, it had not really occurred to people to hijack aircraft. CNN notes that it was "in the early 1970s when an epidemic of airline “skyjackings” dominated the news." And that changed us. A modicum of security in terms of baggage search and metal detectors at major airports followed and largely put an end to that. Flight crews were trained to cooperate with highjackers, the goal being a safe negotiated outcome. But, the thought of a terrorist using a plane full of people as a weapon had not yet occurred to us back in the twentieth century.

"Some people" indeed did something. September 11, 2001, is the headline of WorldAtlas' "Worst Terrorist Attacks in History." It notes that those miscreants "killed approximately 2,996 people, injured more than 6,000, and destroyed property and infrastructure worth more than $10 billion." It is listed as the number 1 event. A few less, 2,390, died in the surprise attack on Pearl Harbor in December 1941 ("a day that will live in infamy"). Perhaps to the modern age, it is September 11 that will live in infamy?

We tend to remember the World Trade Center. It was first in the sequence of events. It was tragic, unbelievable, and shocking. But, we must strive to remember that there were four planes hijacked that morning, and only two struck New York (about 08:45 and 09:03). A third was driven into the Pentagon in Arlington, Virginia, just outside the nation's capital (09:37). A fourth would dive into a field in Pennsylvania about 10:00 that morning (by then, the plans of the hijackers had been discerned and various passengers ceased cooperating and fought back against the coward hijackers). Though we tend to remember the collapsing towers, there was death, destruction, and mayhem in many locations.

And we remember September 11, 2001. In 2021, the Brookings Institute marked the twentieth remembrance with a survey. The results support how indelibly marked those events are for those of us that were ten years and older at the time:
"93% of Americans ages 30 and above said they can remember exactly where they were or what they were doing the moment they learned of the terrorist attacks on September 11, 2001."
I was sitting at my desk working on a stack of medical records that were as jumbled, disorganized, and redundant as any I had ever seen (about 08:45, ET). It was a frustrating endeavor, sifting for relevance in a swamp of paper. An attorney came down the hall and said that her husband had told her of a plane hitting a building hundreds of miles north (New York) and that she was going home for the day. The import was lost on me; I returned to my records. Not until the second plane struck (about 9:00) did I begin to suspect we were witnessing a world-changing event. The day worsened, and the certainty grew. It took a while for me to absorb it. It just seemed so implausible. 

The world largely stopped that morning. We turned to the news for their reporting, but there was little news and so broadcasts were full of conjecture and prognostication. There were theories, there were accusations, and there were experts. The FAA began shutting down American airspace. All of it. Every plane was brought in for a landing. Thousands of people were diverted from their day, scared, scarred, and surprised. And, there were great signs of humanity as well. There were heroes galore that day, in the sky, in the response, in the humanity. We were so united, so concerned, and so disconcerted.

We declared war on terror after September 11, 2001. The "Costs of War project at Brown University" estimates that the "20 years of post-9/11 wars have cost the U.S. an estimated $8 trillion and have killed more than 900,000 people." Those are "direct deaths," and do not strive to account for "the many indirect deaths the war on terror has caused by way of disease, displacement, and loss of access to food or clean drinking water." Statista says 7,075 Americans have died in the war on terror. Thus, American casualties of the September 11, 2001 attacks and reactions total well over ten thousand. Those "people that did something" started a war that led to massive implications globally. 

It may be fairly said that "some people did something," twenty-one years ago. They are responsible for a vast amount of destruction and death. The world today is different. Unfortunately, without a historical perspective, those differences may be less than obvious to those who did not live through it. Certainly, there is a generation blessed to not know of that first hand, but we must all strive to remember. We pause today to remember those fallen.

We should also pause each September 11 to remind the next generation of the perils of this world. The vast population that was too young to remember the world before September 11 cannot be allowed to forget the damage and destruction, the treachery and terrorism. With each passing day, the generations that lived through September 11 age, retire, and pass. The next generations must remember the threats that "some people" pose to our peace, prosperity, and community. They are still out there, and our safety lies in our remembrance, preparedness, and vigilance. 

Thursday, September 8, 2022

September is Awareness Month

I am chagrinned to admit a variety of historical moments that I recall. Many things have occurred in my lifetime, and it bothers me more than a little that I am getting, as they say, a bit long in the tooth. The years come for all of us, and there is much to see along the way. I recall, for example, when there were great advertising campaigns for the novel idea of a single, easy, phone number to dial in case of emergency. I recall that roll out of "911" like it was yesterday.

Many misremember the advent of "directory assistance" that was reached dialing "411." They conflate somehow that this was created before "911." But back in the old days, we just dialed "0" for help. No, I am not old enough to remember when dialers knew the local operator by name, but I have seen it as a Hollywood trope. The "411" shortcut was a product of the 1970s. In the 1980s, the FCC added "211" as an easy way to reach "essential government services."

With far less fanfare, or perhaps I noticed that "911" fanfare more because I admittedly had less to think about in those days, the fine folks in government recently rolled out the "988." I know a lawyer in south Florida who persistently refers to that geography as "the 305." Apparently this is an appellation adapted by some singer somewhere, and embraced by the locals. Everyone at risk of mental and emotional challenges might do well to remember "the 988," and perhaps someone will rap about it eventually. 

Well, we are all living in the new "988," it is everywhere, and that new shortcut debuted in 2022. The publicity occurred, but it was not memorable. It began July 1, 2022. When I mentioned it at the recent WCI, I could just as well have been speaking Italian. There was no recognition or acknowledgement. The "988" is a national Suicide and Crisis Hotline. Not as broad as a "911," but a source of help and resources. I remember thinking in July that it seems a bit alien that this simply and somewhat obvious idea is only coming to fruition in 2022.

Suicide is a thing worthy of our analysis. In 2020, 45,979 Americans departed by way of suicide, according to the American Federation for Suicide Prevention (AFSP). That is a significant number. That is more than the total of Americans that died of gun violence in 2020, but not by much; Pew says that figure was 45,222. The news is persistently reporting on gun violence, but notably about half of those gun deaths is attributable also to suicide. Where is the public outcry and concern about suicide?

The government thinks that over 100,000 Americans died of drug overdose in 2020. The Center for Disease Control concludes that only about 4.7% of those were suicides. That is somewhat surprising compared to those involving firearms. The National Highway Transportation Administration says that 42,915 Americans died in vehicle accidents in 2020. It is possible that some of those were intentional, though statistics were not readily discerned. Might it be possible that some portion of them, not being intentional, were caused by mental distraction, fatigue, or inattention? Could emotional issues be contributing to the figures beyond suicide?

Returning to suicide, September is Suicide Awareness Month according the National Alliance on Mental Illness. And, coincidentally, the news has been attentive regarding a recent suicide in Wisconsin. The coverage volume may be influenced by the victim being a member of the media profession. It may be influenced by her being photogenic. Some may even be driven by salacious angles with which some have approached this particular instance. It may be influenced by the timing and the Awareness Month. But, in the end, coverage has been extensive. Despite its "far off" Wisconsin nature, it has a Florida connection, which is likely how it ended up in my news feed.

Neena Pacholke was the news anchor at WAOW. She had seen success as a basketball player at the University of South Florida, graduated, and taken on a career in media, according to Yahoo. The Daily Mail reports that she was engaged to be married, and had purchased a home with her fiancé, a wedding was scheduled for October. There were apparently allegations of infidelity (the salacious angle some are taking), the wedding cancelled, and Ms. Pacholke passed.

Where were the signs? Her sister characterized her as "a little ball of sunshine, and her smile was massive," and she was "by far the happiest person I thought I knew.” The news reports her loss of a boyfriend shortly before college, dedication to fundraising and public awareness of that gentleman's cancer, and her thoughts on dealing with loss and tragedy were reported early in the news cycle. She was praised and complimented extensively in the coverage. 

Her coworkers remembered her "a kind person with a big heart and a contagious smile and we will miss her greatly,” according to the Tampa Bay Times. A former teammate reportedly said she "possessed a big-picture perspective and a willingness to look at 'the positive side of everything.'" She was someone people counted on, and who could "put a smile on everyone’s face, and she was always there for us.”

According to People, Ms. Pacholke's sister concluded "sometimes you just don't know what people are going through, no matter how much you think you know someone." Perhaps that is true in a broad portion of the American population? It is possible that there are a fair few people in your circle are struggling with something. The National Institute if Mental Health (NIMH) says that in 2020 about one in five (20%) American adults lived with a mental illness. If you have five friends, perhaps one of them is at risk?

The point here, however, is more direct. There is a new tool available to those who are struggling. The new "988" is easy to remember and to access. One might seek help there for themselves or another. And, despite outward appearances, it is possible that someone you know may similarly be struggling "no matter how much you think you know someone."

September is awareness month. Hopefully this post helps with that. And, perhaps you will have the chance to pass on the new "988" and build public awareness that this new resource is there for the taking. 

Tuesday, September 6, 2022

Board Certification Help

I received an interesting inquiry from an attorney interested in pursuing Board Certification Worker’s Compensation. The application period is September 1 through October 31, 2022 (Halloween). The question was in two parts, and despite my familiarity with the OJCC database, was perplexing. Despite that, I am always glad to encourage someone interested in certification. It is a great honor and distinction, which I highly recommend. If you are considering it, read on. It is not as difficult as you might think to apply.

Essentially, this lawyer wanted a list of petitions filed between a particular date range. The second bit of information was a list of final merits orders, by which the lawyer could document the required volume of trials necessary to apply. 

In my defense, this request came in shortly before the Worker’s Compensation conference in Orlando. This is a busy time of year, and the preparation for that conference only exacerbate the situation. I began experimenting with various data reports that exist within the OJCC system. I managed to generate the list of petitions. That involved pulling all the petitions for the state during that date range (thousands), then sorting the output based upon filer (hundreds). It sounds a bit rough, but it took less than 10 minutes once I figured it out. I sent that just before the WCI. 

The intrigue of that achievement caused me to raise the subject in a broader conversation at the WCI. The whole process had appealed to me, and I was pleased that the database was so responsive in this example (translation, I may have bragged on our capabilities a bit). One attorney there responded, essentially, that she would like a similar list of her petitions. It is heartening to hear that lawyers are interested in seeking Board Certification. 

I applied for Board Certification back when the exam involved an exam hand written on papyrus (an exaggeration, but not by much). I well remember the rigor of the Board Certification application. I am grateful to one of the partners that hired me after law school. She handed me an application form, and encouraged me to keep it at hand and make notations upon it with each case I tried. She believed that I would achieve the requisites, but would be burdened by the documentation requirements. I did not comply assiduously, but did significantly. And that ongoing recordkeeping process was of great use when the day came to submit an application.

One challenge for which I have no advice is trying to keep track of those opposing counsels in cases. I suspect that is something you just have to search manually when the time comes. The Bar website is great for that, assuming no one has a name change for whatever reason. I wish I had a better answer to that challenge. 

Then I found myself, having returned from the conference, pulling a list of petitions for this second attorney. As I did so the concept of trial orders continued to fester in the back of my brain, and I jumped to the order search function of the OJCC webpage to experiment (www.fljcc.org). On that page, you can search for an attorney‘s name

You have to decide whether to search for full name "John_Smith," or merely "Smith." I point this out because if there are too many spaces between "John" and "Smith" in a document, a literal search for the full name may result in under-inclusion. Of course, there’s the potential that if you search only for "Smith" or for "John," the list will likely be over-inclusive. It is practical, perhaps, to search instead for an address at which you had your office, that may narrow things better than a name. However, that might produce over-inclusivity as regards ones associates your partners. In short, you may have to play with that element a bit to get the list you need. 

Everyone that has used the order search page well knows that the return is often inclusive of duplicates. I have asked the question repeatedly regarding why that is, and have yet to fully comprehend it. In fairness, I gave up asking the question and simply moved on. However, there is a button on this page that allows you to "export" the results of a search, yielding you a spreadsheet (of sorts) listing all of the information. It is actually a "comma separated values" sheet. 

This includes the name of the document (our name, not your name, meaning the computer-assigned designation that is generated for the documents uploaded), the date and time of upload, and a link to it. Unfortunately, because this is comma-separated values rather than Excel format, all of the information is in a single column and that is  a bit frustrating. However, I found a trick to reduce the volume in the sheet. First, it is best to first re-save the exported sheet, and to do so using the “save as" function selecting Excel Worksheet as output. Then broaden the first column (column A) so that it encompasses the entire population of data. 

Then highlight the information in column A.

Click on "data" in the top ribbon, and then "text to columns."

Click on "delimited."

Then click "next." On the next screen, select "semicolon" from the choices and un-check any others.

Click "next" and "finish." The data will then sort for you, putting the name of the document in column A (resized here for purposes of the picture), B, C, and D. For illustration, this was performed here on only the first line of data. For your purposes, however, block the entirety of column A and you will get all the information  in this spreadsheet similarly sorted. 

Then you can simply sort ("data" tab, "sort," and select your column) the data using column B or A to group duplicates together. 

The duplicates are obvious, and the sheet can now be in "date order" if you selected column B. Thus, you have a chronological list starting with today and progressing back. As you look through those orders one at a time, you should be able to find what you are seeking. The portion of column D that is in quotes:


can be copied with your mouse and pasted into a browser window for instant access to the order you seek. 

So, it is reasonably simple to produce a list of trial orders for which you are responsible and which support your application. You can email me for a list of petitions if that is helpful to you. There is no excuse not to put the application together now and get it submitted. I encourage you and support your effort.