Tuesday, January 31, 2023

Judge Sojourner

We bid farewell on January 31, 2023, to Judge Margaret Sojourner. She was originally appointed by Governor Crist in 2010 to the Lakeland District Office. There were admittedly some challenges to work through in that district, nestled between the bustle of Orlando and Tampa. District Lakeland was persistently a small-town district that had a small and committed local bar. But that evolved in the late twentieth century as Orlando and Tampa each exerted influence and lawyers traveled more. It was a district in which some periodically had perceived various challenges or perhaps that some enjoyed a "home-field" advantage. Despite its size, Lakeland was a historic district in which it is believed an OJCC office was first established in 1953.

I dabbled there myself in the 1990s. I don't recall the circumstances any longer, but remember having to appear before Judge Vocelle. He had transferred there in 1986 after serving briefly in Miami. For some reason, old-timers tend to remember his transfer but to forget the vacancy he filled was created by a similar transfer. Judge Vocelle was an often impatient man who I perceived as never experiencing doubt. He was decisive and direct in my experiences, but we did not often see eye-to-eye substantively. There were those who had more to say about Lakeland over the years, but I will always remember Judge Vocelle. Interestingly a similar-named James Vocelle was Chair of the Industrial Relations Commission in the 1950s. 

The LKL history included other names like Charles Hurt, prior to his transfer to Orlando in 1986. People sometimes express their belief that judges moving is a very recent thing, but in 1986 Judge Hurt went to Orlando and thus facilitated Judge Vocelle's move up from Miami. Charles Vocelle presided in Lakeland for a dozen years, followed by Judith Flanders' short stay (1998-99). Many judges filled in hearing matters in Lakeland after Judge Flanders' departure, and Judge Hofstad was appointed in 2000. Judge Sojourner was appointed to replace Judge Hofstad in 2010 and served there for seven years before transferring to Orlando in 2017. Now, after almost six years in Orlando and over 12 years total, she is retiring from the bench. In the meantime, there is no district Lakeland any longer. Lost to time and the convenience of technology. 

I never practiced with or against Judge Sojourner, and only became aware of her when she applied for the Lakeland vacancy. She joined the OJCC at an interesting time that included contemporaries such as Hon. Renee Hill (GNS), Hon. Neal Pitts (JAX and ORL), Hon. Stephen Rosen (JAX and SPT), and Hon. Joseph Farrell (ORL). Each name evokes memories. It is a tribute to her that she is nearly alone in that group, only Judge Pitts remains. 

Judge Sojourner has spent an incredible career in central Florida. She was an associate at the Haas, Boehm, Brown, Rigdon, and Secrest firm. She operated her own firm after that, worked in-house for an insurance company firm, and was a partner at Langston, Hess, et. all for a dozen years before her initial appointment in 2010. The local bar was familiar to/with her as a practitioner and was immediately a presence there. She quickly became known in LKL as a no-nonsense judge with an affinity for the rules and a deep knowledge of the statute. She was immediately perceived as a dramatic change there. Her focus on transparency and predictability was a service to the lawyers and parties involved there. 

As is my habit when a new judge is appointed, I recall calling around within a few months of her taking the bench. I remember comments like "breath of fresh air," and "certainly different." As I conversed with lawyers, my general perception was that LKL changed when she arrived. She was decisive, fair, and industrious. Some perceived that as better and seemingly longed for the "old days." 

But, everyone I spoke with believed her to be fair and patient with the lawyers that were striving to get the job done. There were those who thought she was too stringent as regards some rule or requirement, but when I asked pointedly "isn't that what the rule/statute says?" to a person, they conceded she was right in the particular ruling they were lamenting. 

The bar quickly adapted to her presence and she was quite effective at managing a docket. Trials were scheduled, deadlines were enforced, and the statute was followed. During her tenure in LKL, the process and practice there became predictable and stable in an unprecedented manner. 

Judge Sojourner came to Orlando when Judge Condry departed in 2017. Those were some difficult shoes to fill. And, in her inimitable style, Judge Sojourner not only took on his docket but immediately assumed the responsibilities of administrative judge in that busy office. She was amazing in her ability to step into the two roles and manage that office with such efficiency and finesse. Judge Sojourner has skill when it comes to human interaction, and it showed. She remained in that role until just recently when Judge Pitts assumed the administrative role as we prepared for Judge Sojourner's retirement. 

In the course of a dozen years on the bench, she has waded through a plethora of challenging litigation situations, dealt with an array of colorful and competent attorneys, and presided over hundreds of final merits hearings. She brought stability to District Lakeland and fostered close collegiality both in the local bar and among the practitioners that traveled there. She maintained a steady course in Orlando and oversaw our relocation out of the city center there. She has been a part of our central Florida workers' compensation community for more than a few years, a leader in the bar and bench. 

I will miss her presence, patience, and persistence. She brought dedicated service to her time with the OJCC, and we (Florida) were fortunate to have her. She leaves behind many friends and colleagues. She leaves behind a functioning and efficient district office. And, she focuses on a future in which we all wish her the best. Godspeed Judge, "May the road rise up to meet you." "May your blessings be many and your troubles be few." Thank you for your service and example. 

Sunday, January 29, 2023

Repetition and Trial

I frequently stress in trial seminars the concept of retention. People are inclined to remember things that are repeated. People tend to remember things if you say them more than once. The chances of retention increase the more times you say something. Whether this is through a subtle rephrasing or a brute, rote, repetition, the human mind finds it easier to remember things that are stated more often. This "frequency" is one of the "three Cs" of retention. The other two are "primacy" and "recency." People tend to remember what you tell them first, last, and most frequently. It is a worthy consideration for lawyers, whose job it is to persuade.

But, how else is repetition powerful? It turns out we are also inclined to believe things that are repeated often, even if they are not true. We can be persuaded through repetition. It is beyond merely the influence of retention and memory. The fact of a matter might be changed through repetition. As reported several years ago by the British Broadcasting Corporation (BBC), "Repetition makes a fact seem more true, regardless of whether it is or not."

If lawyers fail to appreciate the implications of that phrase, there is something truly amiss. It is the lawyer's job to pursue the truth on one hand and to zealously represent the client's best interests. When I say on the one hand, it is hoped that these two can each be pursued together on the "one hand" and that there is no "other hand." But, unfortunately, there are instances in which misstatements occur and untruths are told and repeated. Some may be minor or inconsequential, but others may control the outcome of a case. See Representations we Make (March 2019); Candor, Omission, Persuasion (October 2021). 

Whether from their own clients, opponents, or disinterested witnesses, lawyers must remain attuned to the potential for innocent misrepresentations, mischaracterizations, and blatant lies. Memory, perspective, and appreciation all differ from person to person. And, like it or not, self-interest and self-preservation are entirely likely to lead some to wander from the path of truth. When the lawyer perceives it, it must be confronted before its repetition renders it truth.

The psychologist quoted by the BBC says that this is a "law of propaganda," that has historically demonstrated efficacy. He labels it "the 'illusion of truth' effect." The impact has been tested by subjecting a variety of people to various facts. The results demonstrate that "people tend to rate items they've seen before as more likely to be true." The researcher concludes that this is for "the sole reason that they are more familiar."

The focus of the article was on (then) recent work in which the testing of acceptance was focused upon statements that participants were likely to already know. The example cited regards which of the oceans, Atlantic and Pacific, is the largest. There, results demonstrate that despite the common knowledge that the Pacific is the largest, repetition of the "Atlantic is the largest ocean" was sufficient to result in people accepting that "truth." The pure repetition was sufficient to sway people from known, "actual truth."

Repetition makes things reliable. The mere fact that we hear them over and over makes them relatable and believable. We might come to accept that a particular product makes us beautiful, or even that a particular look is itself beautiful. Popularity of a "look" might lead to repetition and repetition to popularity. Remember the "big hair" of the 1980s? A professional might cast her or himself as knowledgeable or able in some advertising media and thereafter enjoy the benefits of being hired or retained despite the actuality of shortcomings such as incompetence and sloth.

The article cautions that we are exposed to a variety of persuasions and influences in our day-to-day. It mentions persuasion in the form of rhetoric and advertising. It is easy to conceive how a catchphrase or attribute might become accepted if repeated often enough. The caution is that the repetition through "foible of human psychology" is exploitable. If a particular business expresses they are "the best" often enough folks might come to believe it. 

Despite these scientific findings that support our tendency to accept things that are repeated often enough, the predominant factor in whether we believe something is true actually turns out to be whether it is true. In the broadest context, we are "more likely to believe the actual facts as opposed to the lies." But, the repetition effect is still real. And, the potential for us to be misled by untruths is greatest in that population of knowledge in which we possess the least background, exposure, or expertise. There, in the absence of an "actual truth" foundation, we are perhaps the most susceptible.

Thus, in litigation involving a yellow car that struck a red car, there is seemingly little hope through repetition of convincing the jury that one of the cars was blue. For that, there is likely objective evidence, such as pictures, that will frustrate the obfuscation. But, as to which party is or is not hurt from that collision, or is at fault, for which there may be less objectivity, the repetition effect may be of great import.

While the research supports that repetition has the power to influence us and our belief of "truth," it is unlikely to override our actual, existing knowledge. But, it is difficult to be "rigidly logical about every piece of information you hear." When we are exposed to information, it is a lot of work to compare that data to "everything you already knew." If there is a little information, that volume of work is perhaps practical. But, as volume increases, practicality sinks in. The volume and the pace of information make this "rigidly logical" impractical at best and likely impossible for mere humans.

Therefore, when dealing with information that is critical, decision-makers must focus on the specifics that are important. The critical analysis, the comparing to the "already known," has to occur as regards the crucial points, recognizing it cannot likely be applied to all factual points. That analysis is the path to sorting the actual truth from the truth that is suggested by mere repetition. Therefore, it is similarly important to focus on the important and to avoid boredom and overwork for the jury. 

As a listener, we may likewise remain aware of the potential that repetitions possess. We can listen for repetition and question whether it is being engaged to obfuscate or obscure. We can decide what the crucial points are and through active listening bring our focus back to the comparison to what we already know. We can do so if we are active, engaged, and focused. 

The BBC author suggests we can be introspective. We can question "why we believe what we do." From our perspective, is plausibility reality when crosschecked against what we know? Or, "have we just been told that repeatedly?" Is the statement verifiable and thus reputable? Or, is it merely the subject of repetition and reinforcement?

Thursday, January 26, 2023

Criminally Charged Employer

I cannot personally imagine living with the burden of responsibility for someone's death. That does not come down to intent or negligence in the strictest terms, but merely responsibility. In an earlier age, we might have believed that such responsibility repercussions might be between someone and her/his/vis creator. But, there are a great many among us that exalt the present and deny any creator. We have become increasingly secular as a nation, and our reliance upon man's laws has undoubtedly increased. I touched on the responsibility for a death decision recently in Who Should Live (January 2023). What a difficult decision to shoulder, and responsibility to bear. 

I first wrote about actor Alec Baldwin in Safety First (November 2021). Since then, I returned to the subject of guns in Workplace Gun Safety (August 2022) and More Rust (October 2022). I have been reasonably unequivocal in my views on gun safety. You hold it, you safe it. Such devices are inherently dangerous. They can hurt or kill when used exactly as designed and intended. We Americans hold some fascination for fast cars and guns. Don't believe me? Go to the movies. I won't bore with a litany of recent films featuring each.

Mr. Baldwin is now back in the news. NBC News reports that he and the "armorer" of the movie Rust will be criminally charged in the death of Halyna Hutchins in October 2021. Mr. Baldwin has explained that he undoubtedly pointed a gun at the victim(s). I use the plural because director Joel Souza was also wounded, according to the NY Times. In the most recent news of charges, there has not been mention of the battery upon Mr. Souza or any related criminal charges regarding his injuries. He is, however, a victim. 

In 2021, the NY Times reported that the gun held by Mr. Baldwin "suddenly went off." Mr. Baldwin has said that he "did not pull the trigger," which is seemingly consistent with the gun mysteriously or magically going off of its own accord. This is a common theme with some who believe in their core that guns kill people. In point of fact, people kill people, and a variety of tools can be employed in such actions including knives, cars, boards, hands, and more. Yes, people can be violent and they can employ a vast assortment of tools to their ends.

Prosecutors in New Mexico announced that they will pursue Mr. Baldwin on two theories. Both are important in that context but are also worthy of discussion in the context of workplace safety. The actor and the armorer "will each face two counts of involuntary manslaughter," although only Ms. Hutchins was killed. The prosecutors explained that Mr. Baldwin is allegedly "criminally responsible as both the shooter and the “Rust” producer." How the armorer is subject to two counts is less clear.

Those who supervise workplaces and own workplaces are responsible for safety. Failure in that regard can lead to criminal prosecution and conviction. Easy examples include: a California construction company owner and foreman; a Virginia company owner; a Washington owner; and a Maine owner. A quick Internet search turned up these examples. There are more.

Whose job is workplace safety? Certainly, there are on-site forepersons. Often there are safety managers. In this shooting, there was an armorer. There has been much in the news about how the responsibility should be solely on that weapons expert. And, a court will ultimately decide if that is true. But, someone hired that expert and may find her/himself responsible for both the hiring and supervision of that on-site expert.

The armorer may have extensive experience and expertise. The Internet Movie Data Base (IMDB) lists her as having been involved with three productions. This includes costume assistant on Millennium Bugs in 2020, "assistant to Mr. Reed" (perhaps her father) on  Murder at Yellowstone City in 2022, and head armorer on The Old Way in 2023. Insider says that she is the "daughter of legendary armorer Thell Reed." It says some have labeled her "inexperienced" and she is "25-years old." Some will likely suggest that the Rust producers might have hired an "expert" who had more years or more projects? Perhaps there is more to her experience than meets this cursory review. The prosecution will perhaps flesh this out. 

Some will argue that Mr. Baldwin had no control of anything on the set, the workplace. They will assert that his "producer" title was faux, a mere accouterment or courtesy afforded for his fame and name (vanity). Perhaps there will be claims that listing individuals as producers is more attributable to accounting and profit disbursement than to actual management. But, already there are reportedly repercussions. Will this incident alter the practice of "producer" titles? Might this be a consideration for anyone offered the "manager" title on a construction site, restaurant, or project?

ABC News reports that gun safety on movie sets has recently become more respected and expected. People are reportedly checking guns for ammunition or asking others to do so. Perhaps this even includes the actors who some people so adamantly claim should be free of responsibility? Despite that, Mr. Baldwin's attorneys and his union are clear that the safety of a weapon cannot be the responsibility of the person (actor) that holds that gun in her/his hand: "this onus can't be placed on performers." 

Would the same hold true for one driving a car? Would anyone argue that the driver of a car cannot be responsible for its operation? Both are tools. Would anyone utter "you can't hold the operator responsible for a crane" or "saw" or "earth mover?" Might we argue that a driver need not inspect her/his rig before entering the highway? In my years truck driving, it was company policy that a walk-around precede every departure. Tires, lights, and loads were all checked. Every pilot does it. I have seen machine operators in factories do it. Are actors special or different?

The New Mexico prosecutor disagrees with Mr. Baldwin's congregation. She says "It is incumbent on anybody that holds a gun to make sure that it is either not loaded or to know what it is loaded with." Where is the dividing line? Are actors special? Should they be insulated from responsibility when they hold a gun, swing a board, or drive a car? Is their reliance on the instructions and assurances of others an excuse for any and all results or outcomes?

In the broader context, we see that employers can be charged with crimes when workplace safety fails. Those who own companies and supervise can face serious challenges that involve hiring lawyers and defending their personal liberty. That may seem harsh, but it is really far less harsh than the detriment suffered by the employee that dies and her/his family. In the broadest context, each of us is responsible for workplace safety. Some Rust crew walked off the job prior to the killing; their complaints included safety issues. If you are not safe, walk away. That sounds easy, but economic reality may preclude immediate departure. Needing a job can make it tough to make personal safety decisions. 

Despite us each being responsible for our safety, and keeping a lookout, those who pick up dangerous tools or take the controls of vehicles have more specific responsibilities. Those who are owners and supervisors and managers have a responsibility for the hiring of appropriate experts, the establishment of workplace policies, and enforcement of a myriad of rules that come from state and federal sources. Those safety rules are a pain, but they save lives. 

Perhaps something like guns (or similarly with vehicles, and other tools) would suggest someone with several years as an assistant armorer? Or perhaps gun skills and movie protocols are genetic and the skills and experience of a parent can be attributed to the child? Would anyone buy that explanation with a 25-year-old safety manager at a production facility? What motivated the producers of Rust to rely upon someone with so little published experience? Perhaps there is more experience that IMDB and others do not reflect? The jury will perhaps clear up any misconceptions. 

Will a jury conclude that the man with the magic gun is responsible for the gun spontaneously and magically discharging? Or, will it conclude that the trigger was actually pulled as the FBI seems to indicate? It is possible in our world for a jury to doubt the credibility of either the actor or the FBI. I never dreamed the venerated would face such credibility issues. Will there be consequences for the death of Ms. Hutchins? Will the shooter be responsible? Will the armorer expert, the producers that hired/supervised her, or both be found responsible? Time will tell. 

Is there an object lesson here for all employers? Certainly. Safety may be everyone's problem, but ultimately the boss can do much to prevent injury or death. 

Tuesday, January 24, 2023

February 24!

The time draws nigh for my favorite continuing education opportunity of the year.  The OJCC has been producing a free program at the First District Court of Appeal. We have been producing it for a decade, and it is a great success every year. There was that one tough year in 2021 when we went digital in deference to the virus. That was not easy, and regathering in person in 2022 was a great reward for our perseverance. 

We have had some great moments over the years. Who can forget Mr. Porcher's mathematics lesson on permutations? Or, Judge Lazzara and his witty moderating? Does anyone remember the judge who responded to every question with a question? There have been some great times, collegiality, and interaction. We have seen dozens of judges, outstanding attorneys and mediators, and we have had the benefit of in-person collegiality and communication. The programs have been an unmitigated success.  

We will be back again on February 24, 2023, from 8:30 to 5:00 for "Sharpening and Adding to the Tools in your Trial Toolbox 2023." The full details of the program are listed on the OJCC announcement blog.  

The program in 2023 is a path through the litigation forest. It will bring you from the initial challenges of the pre-petition through the overarching challenges of professionalism. In between, there is valuable advice on discovery, mediation, pretrial, trial and appeals. This program is a "soup to nuts" compliment of all that is workers' compensation litigation in the Sunshine State.

The program this year has been planned and executed by Judge Moneyham (PMC), but with ample help. Other moderators include Judge Arthur (TPA), Judge Kerr (MIA), Judge Walker (PNS), and Judge Hedler (WPB). The panels are geographically diverse, with lawyers and mediators from Pensacola to Jacksonville to Miami. It is a tremendously dynamic group bringing multiple backgrounds, perspectives, and personalities.

This will be a great opportunity to know the practice and the professionals better. Many people practice workers' compensation in Florida, but a select few do so well. Some of them are presenting at this program and others will be in attendance. Will you? It is a "must-see," and it is free. And, stick around after the final presentation for a reception! But, spots are filling rapidly, with 94 already registered. Space is limited, so download the image below and return to WCI to register.

Sunday, January 22, 2023

Who Should Live?

There is a continuing and intriguing debate regarding euthanasia. It has persisted in this county for some time but really came to prominence late in the twentieth century when Dr. Jack Kevorkian was engaged in assisting suicide. He was charged and tried, but conviction was elusive. He was finally convicted in Michigan after assisting in a death that was recorded for posterity. While there have been news stories since, the topic has not led headlines in America in recent decades. 

There are American states that have enacted Legal Medical Aid in Dying (MAID) laws. They include California, Colorado, Hawaii, Maine, Montana, New Mexico, Oregon, Vermont, Washington, and the District of Columbia. However, 36 states prohibit the practice of euthanasia. Another 4 have laws that leave their actual position unclear. It is perhaps most accurate to say that there is some lack of consensus overall, but a reasonably clear majority and minority view.

The British Broadcasting Corporation (BBC) reports that Canada has an "assisted death programme," and has had it since 2016. It has been for the "terminally ill." There, doctors in hospitals have been participating in the ultimate harm, death, for several years. There is an interesting study of why patients said they elect this outcome. There are malignancies, organ failure, neurological diseases, and more. Intertwined with those foundational points, there is discussion of symptoms, loss of autonomy, and "fear of future suffering." 

In the end, we are each terminal. Death is an eventuality for us, and the fact is that not knowing when or how is perhaps a blessing. The knowledge is hard to live with, or at least I have been told so. I have been told that knowing the name (cancer, heart disease, etc.) of your path is both terrifying and somewhat comforting. One told me it was liberating (much like a famous song lyric, that fellow "went skydiving"). I struggle with that characterization, "comforting," but having not lived it I cannot competently consider the reactions of those who have actually faced such news. How does one cope with such information? How does one face either the end or the challenges of the painful days that may precede it?

One physician is quoted by the BBC recounting her first foray into assisted death, and characterized it as "surreal," and "like stepping off a cliff." However, she says it has now "normalized." If you do something often enough? Listen to Murder by Numbers, The Police, A&M 1983, "You'll find your conscience bothers you much less." This is not in any way a suggestion that MAID and "murder" have any correlation, but the point of the song is that things become easier with repetition. That is worthy of discussion despite the song title. Might it become too easy to discount the value of life?

The BBC article notes that "in 2021 . . . . there were 10,064" assisted suicides in Canada, "accounting for 3.3% of all deaths in Canada." That is intriguing. In Great Brittain, the Guardian reports that ten percent of all suicides are related to "chronic illness." Thus, without physician assistance, there is evidence that suicide is nonetheless engaged by some portion of society. 

In 2021, the Canadian program shifted from only those with "life-threatening" conditions to "include those with serious and chronic physical conditions. However, the program is changing further in 2023, and is expected to soon "include some Canadians with mental illness." There might be some that see evolution in the law, and that is perhaps valid. Others might contend that a broader population has the right under Canadian law but that individual and serial court proceedings have been required to extend that recognition to various groups.  

And, with the present expansion, there are some expressing reservations and concerns. Critics have expressed fears that "the expanded law could devalue the lives of disabled people by implying that a serious disability was worse than death." They also perceive evidence that people have elected "assisted death . . . in part because they could not afford adequate housing." There are fears that some might seek it "because of poverty, lack of housing, or extreme loneliness." There is fear expressed of "making death too ready a solution."

What of the perceptions of people? In Daytona this week a septuagenarian fulfilled half of an alleged murder/suicide pact with her husband. She was arrested after allegedly killing her husband, who suffers from a terminal condition. CNN reports that the two agreed about three weeks ago to this outcome "should his health get worse." She allegedly followed through with the killing but as to the suicide she "was physically too weak to do so." She now is in custody after a police stand-off, and reportedly may face capital murder charges. When someone chooses death, is there distinction here from what some states allow? Should people have to suffer? Should the state sanction their decisions? Should physicians assist people in their deaths? Who will draw the lines? Aren't there already lines?

Some in Canada thus see this as a government issue. They feel that providing food and shelter for everyone is a government function, a socialistic provision of "fundamental human rights." These are the souls that have concluded each and all are responsible for all and each. They argue that government is failing to provide adequately in this socialistic paradigm and that allowing assisted suicide as an alternative to poor living conditions "is unacceptable." In the process, they perhaps discount that poor living conditions are themselves a threat to health, safety, and longevity. That is a broader discussion. 

There are some who are concerned with the new law because of safeguards, or the lack of them. They express reluctance to bring suicidal family members or friends to medical facilities for assistance because of the chance they will be counseled and swayed. They see the potential that some populations will be inappropriately offered the suicide alternative and perhaps make poor choices. They fear that alternatives will be poorly explained, comprehension will be challenged, and that untoward outcomes may follow. There is some fear that suicide will be encouraged, and examples are noted. 

The article suggests that there is a significant debate underway. And, in the end, it may turn into a broader debate of the successes and failures of socialism generally, the rights to support and sustenance, and the challenges of living with impairment in society. The article uses the word "disabled," but there is debate among the so-called experts as to the appropriateness of that word. We have debated it in workers' compensation. It is likely that when the experts decide how they feel about the word, its use will be either accepted or derided in our modern cancel culture. 

How does this plan in Canada, and the challenges, intersect with workers' compensation? There are touchpoints worth noting. There are many who find themselves impaired, restricted, or disabled following a work injury. Will their challenges steer toward the same concerns expressed above? In reality, is it possible that they have already? In patients' recovery or rehabilitation, will they be supported in a belief that much remains practical and possible despite disability? Will they be shown a path to productivity, contribution, or place in society? Will they believe themselves to be adequately housed, clothed, and fed by the social safety net that is workers' compensation?

While Canada presses forward, there remain questions. As the debate regarding euthanasia continues, it is perhaps worthy of consideration and debate in the broadest contexts. Though only a handful of U.S. states currently enable assisted suicide, what might the future hold? In a community that has struggled with helping workers recover and remediate, will we have tough questions to address in years to come?

It is a curious and serious challenge that Canada faces. It may be isolated there in the context of the law, but are the challenges faced by patients so constrained by political borders? The implications for both today and tomorrow seem worthy of some pondering. 

Who should live? Who should decide?

Thursday, January 19, 2023


I have posted on the proposals pending before the Florida Supreme Court for reform of the civil practice in Florida. They are lengthy and involved. With a great deal of perseverance and patience, they are worthy of attention and study. As mentioned in Civil Rules Reform (January 2023), one of the main focus points highlighted in the news is sanctions, "tough sanctions."

The report candidly notes that
"the civil rules include only scattered references to sanctions that the trial court may impose"
Therefore, there is a proposal for "a single rule delineating available sanctions and codifying certain sanctions-related case law." The proposal is for a "new rule, numbered 1.275." The sentiment seems strong that those who are not complying with rules and orders need to be dealt with in the civil practice, that there is "a growing culture of noncompliance in the absence of consequences for failing to follow the rules.”

RULE 1.275. SANCTIONS (a) Generally. The court may impose a sanction if a party or attorney fails to comply with these rules or with any court order arising out of a case filed pursuant to these rules. To the extent any rule of civil procedure specifies options for sanctioning misconduct, the sanctions set forth in this rule shall be deemed supplemental to such other rule, as appropriate.
(b) Available Sanctions. On a party's motion or on its own motion, the court may enter appropriate sanctions concerning such conduct unless the noncompliant party or attorney shows good cause and the exercise of due diligence. Such sanctions may include, but are not limited to, one or more of the following measures:
(1) reprimanding the party or attorney, or both, in writing or in person;
(2) requiring that one or more clients or business-entity representatives attend specified hearings or all future hearings in the action;
(3) refusing to allow the party to support or oppose a designated claim or defense;
(4) prohibiting a party from introducing designated matters in evidence;
(5) staying further proceedings, in whole or in part, until the party obeys a rule or previous order;
(6) requiring a noncompliant party or attorney, or both, to pay reasonable expenses (as defined in this rule) incurred by the opposing party because of the conduct;
(7) reducing the number of peremptory challenges available to a party;
(8) dismissing the action, in whole or in part, with or without prejudice;
(9) striking pleadings and entering a default or default judgment;
(10) referring the attorney to the local professionalism panel or The Florida Bar; and
(11) finding the party or attorney in contempt of court. (Emphasis added).
Are these sufficient (even in light of the "not limited to" that is included)? Would any of these suggestions be workable or desirable in the workers' compensation litigation process? The standard in workers' compensation is in Rule 60Q6.125:
(1) Generally. Failure to comply with the provisions of these rules or any order of the judge may subject a party or attorney to one or more of the following sanctions: striking of claims, petitions, defenses, or pleadings; imposition of costs or attorney's fees; or such other sanctions as the judge may deem appropriate.
These are confined, however, with the cautionary constraint:
(4) A sanction imposed for violation of these rules shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Penalties, fees, and costs awarded under this provision may not be recouped from the party unless the party has committed the violation. 
(5) Any order imposing sanctions shall describe the conduct determined to constitute a violation of the rule or statute and explain the basis for the sanction imposed.

Thus, there is a spirit of sanctions being narrowly focused, limited to what is necessary, and explained such that there is clarity as to both the present instance and guidance for the future. But, what of the proposals in the Civil arena? Would they have merit in workers' compensation? 

(1) reprimanding the party or attorney, or both, in writing or in person;
There have been JCCs that have attempted to send lawyers to continuing education programs as punishment for violating Bar rules, but without success. Pace v. Miami-Dade Cnty. Sch. Bd., 868 So. 2d 1286 (Fla. 1st DCA 2004). That is likely not the same as a reprimand for violating practice rules. I have seen many JCC orders that reprimanded or admonished a party or counsel.
(2) requiring that one or more clients or business-entity representatives attend specified hearings or all future hearings in the action;
This is a sanction we have seen on many occasions as regards missed mediations and hearings or failure to comply with agreements or orders.
(3) refusing to allow the party to support or oppose a designated claim or defense;
The striking of claims or defenses is certainly in the JCC toolbox, but the appellate court has been persistent in its reminders that such a serious sanction should be essentially a last resort and only upon a finding of willfulness. Lincoln Assocs. & Const., Inc. v. Wentworth Const. Co., 38 So. 3d 155 (Fla. 1st DCA 2010).
(4) prohibiting a party from introducing designated matters in evidence;
This is certainly in the JCC toolbox and has occurred in a multitude of cases. However, it is likely limited to the "actual prejudice" standard discussed by the Court in Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981).
(5) staying further proceedings, in whole or in part, until the party obeys a rule or previous order;
The authority to enter a stay has not been granted to the JCCs. Alachua Cnty. Adult Det. Ctr. v. Alford, 727 So. 2d 388, 389 (Fla. 1st DCA 1999). But, perhaps a JCC could continue the trial or hearing until such time as compliance occurs.
(6) requiring a noncompliant party or attorney, or both, to pay reasonable expenses (as defined in this rule) incurred by the opposing party because of the conduct;
This has certainly been imposed by JCCs at various times and in particular circumstances. This has included payments to physicians as regards depositions or other appointments. 
(7) reducing the number of peremptory challenges available to a party;
There are no juries in workers' compensation, and this would seem irrelevant.
(8) dismissing the action, in whole or in part, with or without prejudice;
This seems different from (3) only in terms of the degree or extent of the impact. It would seem that this likewise is within the discretion of hte JCC, but subject to the Court's cautions regarding its severity.
Lincoln Assocs. & Const., Inc. v. Wentworth Const. Co., 38 So. 3d 155 (Fla. 1st DCA 2010).
(9) striking pleadings and entering a default or default judgment;
This is similar to (3) and (9) and is again seemingly more of an extent or degree than a separate sanction in workers' compensation.
(10) referring the attorney to the local professionalism panel or The Florida Bar; and
This authority certainly exists, and is in fact mandated. RULE 4-8.3 REPORTING PROFESSIONAL MISCONDUCT "A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority. (b) Reporting Misconduct of Judges. A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office must inform the appropriate authority.
(11) finding the party or attorney in contempt of court.
It is clear that this is not within the JCC's authority. Pace v. Miami-Dade Cnty. Sch. Bd., 868 So. 2d 1286 (Fla. 1st DCA 2004). However, the JCC can refer a matter to Circuit Court for summary proceedings as regards the enforcement of an order. See No Reply at All (January 2023). 

Will the practice of workers' compensation need additional sanction paths, or greater use of those that exist? Is the informality that we have all come to appreciate too much with respect to practitioners of some character? There is a perception that the speed limits are set at 70 because they know people will speed. Thus, if 70, people will drive 80, but if the limit were 80, then they would drive 90. Thus, perhaps, there is some benefit to all in our community familiarity and informality, but if the bar is too low perhaps some will take advantage of each other to the detriment of all? Perhaps, at times, there is a need for some tickets to be issued for all to remember there are constraints and rules?

Tuesday, January 17, 2023

Obesity yet Again

One of my first posts noted that Obesity can Kill (March 2015). I have noted some intriguing theories, including one that focuses on transplanting human waste. See Stool Transplant (October 2019). And, in the broad aspect of workers' compensation, we know that issues related to obesity are often seen as inhibition to care and treatment for various work injuries, a "comorbidity" issue. See Comorbidity of Obesity (October 2021).

Of course, one easy solution to being "overweight" or "obese" is simply to change the definitions. That is the course the Canadians elected. What's in a Name? (August 2020). That is a broad effort, but the idea of changing labels made the news. It is, after all, really that simple. Just identify as being thin and dare the weakened and weary world to disagree with you. If they do, sue them in Brazil, see Flying, Disappoitnment, and a Lawsuit (December 2022). Just be "plus" or "big-boned." If only we had some modern-day philosophers like the Rolling Stones to help us through our challenges.

Obesity is big in America. The good folks at Harvard say that "Roughly two out of three U.S. adults are overweight or obese (69 percent) and one out of three are obese (36 percent)." That is amazing in the numerical sense, and perhaps less so when you get out and walk around our world. There are about 330 million Americans, and so about 227 million are "overweight or obese?" Great to be in the majority? As a famous comedian once noted regarding similar statistics "we're the normal ones now."

The good news is it is not our fault. Being obese is not about how many calories one ingests. The American Academy of Pediatrics encourages us to view "obesity more as a biological disease rather than a lifestyle problem," according to a recent story from the British Broadcasting Corporation (BBC). The pediatricians espouse this conclusion because "research has shown that genetics and hormones can have an impact on weight." Not "do" have an impact, but they "can." Since it is possible that such factors "can" "impact" (not "cause," "impact"), then obesity writ large should be viewed as a disease. Post hoc ergo propter hoc? Reductio ad absurdum?

Based upon this interesting logic path, the Academy has issued a new "Guidance" regarding "childhood obesity." It encourages physicians to engage patients through "behavioral and lifestyle changes" as a "first-line approach" in battling obesity. This might involve consuming fewer calories (dieting), or increasing activity (exercise). The old saw may actually ring true - if you burn more calories than you consume you will lose body mass (weight), and the inverse is also true. 

I am no scientist, but I think this is a law somewhere regardless of your genetics or hormones. If you consume less calories than you burn, will hormones or genetics make you gain weight anyway? I would love to hear from you if I am missing something and how either genetics or hormones change the physics of calories consumed versus calories burned. 

So far, so good. Spot an obesity issue, adjust calorie intake and activity, change the equation, and improve the outcome. This seems like math, not calculus. Having recently gone through a weight loss transformation of my own, I can relate. In two pounds of carrots, there are only 372 calories. Try eating ten pounds of carrots a day (2000 calories per day recommended). I found I could barely eat a pound before being full. Brocolli, even harder. cauliflower, only 113 calories in a pound. Try eating 17 pounds of cauliflower in a day. I'm not saying you should, but if you must snack I am a big proponent of these vegetables. 

But, the pediatricians are also advocating more serious intervention if this mathematical approach, this behavior approach, fails. The Academy is "suggesting" that weight loss "medication can be offered for kids as young as 12, and that weight loss surgery can be offered for those as young as 13." The medical community is not specifically endorsing this it seems, this is a "can" not a "should." But, the suggestion seems to be that drugs and surgery are destined to increasingly become a go-to for young patients who find themselves afflicted with weight gain. The idea of getting kids started on drugs early is interesting. 

Oh, here come the Stones again. In 1966, they recorded Mother's Little Helper (Decca). They noted that "Kids are different today," in the context of our grown-up lives being a challenge (see, "these kids today" has been a thing since there were kids). And, they celebrated the pharmaceutical solution of diazepam (Valium):
"And though she's not really ill, there's a little yellow pill
She goes running for the shelter of her mother's little helper
And it helps her on her way, gets her through her busy day"
Pharmaceuticals, you see, are the answer. We know the Stones were not alone. Jefferson Airplane in 1967 (White Rabbit, RCA) advocated instead for Lysergic acid diethylamide (LSD), noting :
"One pill makes you larger, And one pill makes you small
And the ones that mother gives you, Don't do anything at all"
Pills, the experts from the 1960s proclaimed, were the solution to societal ills and challenges. Today, perhaps it is seen in the pot store on every corner, and the myriad of television advertisements for various solutions. Perhaps there should be more ads directed at kids about the panacea of drugs and surgery for body weight? Or, maybe we could all take a lesson or two from those who won't be body-shamed?

Back in the day, when dinosaurs roamed the earth and I was in high school, it was humorous to say "you got a problem, take a pill." Many did. We evolved into the 1990s and the great opium fallacy was foisted upon us by drug pushers and the physicians to whom they marketed. And, the pills flowed like water. How many believed that the harmless and miracle opioids would save the world? How many believed that they were merely a means to an end?

In the 1990s, some chemists decided to mix a weight loss drrug from the 1970s with a second concoction, and
Fenfluramine/phentermine was born. It was nick-named "phen-fen" or "fen-Phen," I can never remember. It was a miracle, a weight loss miracle. Then there were side effects, deaths, litigation, and surprisingly enough this concoction is not widely available anymore. How many prescriptions were written? Many. It was so popular, the National Institute of Health noted that many non-obese people took the drug. That revelation always amazed me.

In this century, we happened upon the challenge of children that were ill-behaved and lacked focus. That was never a problem in the twentieth century. Back then, children were angels. Well, you know, these kids today (sarcasm). Problem? Well, take a pill. In came the age of Attention Deficit Disorder (ADHD), and with it a solution. You guessed it, pills. In a 2021 piece in the Journal of the American Medical Association (JAMA), the authors "found convincing evidence of ADHD overdiagnosis and overtreatment in children and adolescents." Wait, you mean people children were given drugs they did not need?

Like it or not, there are more examples of the rush to diagnoses and delivery of care. Space and time limit my criticisms discussion here. 

Despite our track record with pharmaceutical miracles, the Academy is advocating ("guiding") kids as young as 12 to weight loss drugs. What could go wrong? They say the health risks of obesity are so pervasive that these measures are the best alternative. One expert is quoted that "Waiting doesn't work." As a curiosity, from a non-expert, what is the impact on body image, self-esteem, and well-being when you tell a 12 year old she/he/ze needs to take pills to lose weight? Is there any potential for emotional impact from telling a 13-year-old that gastric bypass or similar is appropriate?

There is risk from any surgery. People have died from having their tushy lifted. And, the folks who do bariatric surgery are proud that only one in 1,000 patients die within 30 days of bariatric surgery. Others say it is more like one in 300 to 500 that die of such surgery (perhaps more die outside that intriguing 30-day window cited above?). Are parents to be guided to pharmaceuticals and surgery despite the potential for risk, complication, side effects, and worse?

Admittedly, there are many obese Americans. Rates are trending upward globally according to the BBC. It is interesting that we have reached the point where little pills and surgery for children is "an" acceptable plan (I am not exaggerating or suggesting that the Academy is making these "the" plan). I acknowledge the problem, I see the obesity health risks and understand the angst. But, seriously, what would Mick Jagger say? ("though she's not really ill, there's a little yellow pill").

Are pills and surgery the answer to all of our ills?

Sunday, January 15, 2023

Civil Rules Reform

Thinking of Bob Seeger this week as I contemplated the latest on the efforts to improve civil case process in Florida courts. In 1980, Seeger penned Running Against the Wind:
"It seems like yesterday, But it was long ago"
And those words resonated in my head when I realized that it was January 2022 when I penned Workgroup Report on Civil Cases. The song is perhaps as fitting because of the title, some are likely feeling like they are against all odds in this endeavor. The 184-page report just over a year ago was intended to set in motion changes "to make Florida 'the envy of the nation.'" That is, to rethink the civil litigation process and to refine the goals thoughtfully so that process is focused upon the objective: delivery of impartial adjudicative services. And, I reiterate, it seems like only yesterday.

A December 2022 article announced that Aggressive Case Management and Tough Sanctions are Needed to Bring About a ‘Cultural Change’. Florida Bar News, December 10, 2022.  This piece brings us back to the "civil rules proposals meant to ensure 'the fair and timely resolution of all cases." There is a "sweeping rules petition" pending and oral arguments were held in December regarding the Florida Supreme Court's consideration of the proposals.

The culture to which we have evolved, according to the Administrative Judge in Miami-Dade, Judge Jennifer Bailey, is that our civil justice system is failing. She said:
“There’s a fundamental truth that’s being missed here, regular people, they just don’t come to court. They’ve abandoned hope that they can get their problems heard.”
And that is a fairly strenuous indictment. I am not sure who is "regular" anymore, but that subjectivity is for another day. 

The foci of the changes include "aggressive case management" and "tough sanctions." The chair of the Workgroup on Improved Resolution of Civil Cases says that the changes are "needed to bring about a 'cultural change.'” While the Chair's comments are not conciliatory, there is some suggestion of anticipated criticism regarding the sanction discussion. The Chair denies this theme is driven by control issues, but instead stresses that there is a perception of "a growing culture of noncompliance in the absence of consequences for failing to follow the rules.”

The proposal includes ideas like (1) "setting inflexible trial dates at the beginning of a case," and (2) "rigid deadlines for motions and rulings." The process contemplates keeping cases on track with penalties: "Judges and lawyers who fail to meet the timelines would face sanctions, including attorney fees and case dismissals."

I echo, again, that this sounds a bit like the 210-day trial parameter,130-day mediation parameter, and 30-day order parameter in section 440.25. Of course, there are not penalties in those sections. In fact, many judges who have striven to enforce those standards have found themselves reversed. E.g. Scottie-Craft Boat Corp. v. Smith, 336 So. 2d 1150, 1151 (Fla. 1976)("We find that the language of the statute is directory only.").

Nonetheless, as I read the comments in the article, I was drawn to commiseration at times.

Justice Canady described the issues as “pervasive,” and noted that "clients are paying the price." There are perceptions of unfair consequences for people, and a desire to ameliorate those potential impacts.

There are critics. Some seemingly do not like change. Do any of us? Others are more critical it seems of the pace of change ("too much change, too soon"). Furthermore, there are those who doubt that the changes will bring the desired effect in an appropriate and commensurate manner ("no assurances that it is going to be worth it.”). 

Other critics are concerned with affording trial judges discretion. There is the challenge of delivering due process and the reality that all cases do not look the same. We have confronted that in workers' compensation. Certainly, there has been no harm in this system by having standards and monitoring whether judges are performing overall within those statutory parameters. In other words, discretion can still exist while standards and parameters nonetheless coexist.

Possibly, the Court will try an incremental change. The News reported that Justice Muñiz questioned whether there are "one or two things that would give us the most bang for our buck?” This suggests that there may be some support for the "too much" critics, and some inclination to consider making changes in 2023 with an eye toward reevaluation and reconsideration in years to come. However, the Chair reported that alternative had been discussed, but the Workgroup "concluded it couldn't be done."

In a vein the workers' compensation community has repeatedly heard over the decades, there is a sentiment that complaints, issues, and tribulations are not widespread. Some express the belief that there are only "few unethical attorneys or judges that can’t control their dockets.” And, perhaps that is where the lament of sanctions is focused. If there were more frequent and notable consequences for the "few," would there be a need for stricter rules and definitions for the many?

Time will tell where the Court proceeds with this effort. It is intriguing to watch, and the reactions and recommendations are informative and thought-provoking. Will this effort drive a larger conversation about the operation of courts, justice, and the "regular people?"

Thursday, January 12, 2023

Privilege and Audacity

My old friend Horace Middlemier called recently. He was ranting about the judiciary and our failings. Horace keeps me from the malice and malaise of Black Robe Disease, and I thank him for it. See Honest Critics - Invaluable (November 2018). As an aside, it is tough to catch the disease if you don't put on the robe. I can hear Horace still: "pompous," "arrogant," "privileged," and on, and on, and on.

The reference was to a story from the Detroit Free Press regarding a couple of judges who got out to enjoy some recreation and exercise (I highly recommend this to all, get outside, get moving).

The story began in 2019 when two judges rented bicycles at a resort in Michigan. When they returned the bicycles, they had a complaint about one of the bikes and requested a price adjustment. Things devolved from discontent to disagreement, and words were said. One of the judges accused the bike shop personnel of being disrespectful and racist. The two customers apparently told the merchants that they wanted the police summoned, and then dropped the other shoe with "I am a judge." That, I will say, is a phrase I assiduously avoid even when asked. My family makes fun of my answer when asked about my occupation: "I work for the state." It is true, vague, and incomplete. And, I think it is best.

Some of the incident here was captured for posterity. There is video. Unfortunately, there is apparently no audio to accompany it (though shop owners may be moving in that direction as technology changes). Cameras are ubiquitous and more sell every day. Assume Everyone is Watching (September 2015). There is thus some disagreement regarding exactly what was actually said in the heat of the moment regarding the $12.00 (approx.) that was in dispute. Hint: judges - if you find yourself on the verge of angry or untoward words regarding a disagreement over $12.00, walk away. Call me, and I will send you the $12.00.

The incident escalated and "police arrived at the shop." They asked the judges to step outside and then reviewed the video with the shop owner. At some point, apparently, the "tiny . . . island police department" summoned backup. After the video review, one officer, with "two other (officers) . . . standing by," informed the judges that it appeared they or one of them "did the assault" on the shop personnel. The whole incident ended with the judges getting a 100% discount on their rental, "negotiated" by the police. The negotiated agreement also included the judge and the shop personnel agreeing not to pursue assault charges against each other. 

Thus, the shop owner/management apparently thought the whole $24.00 issue was not worth all the hassle? I would suggest that was wise (perhaps she/he should be the judge?). The Free Press seems critical of the judges' pursuit of a refund. The article notes that the judges were in the resort town for a judicial conference, and that "most expenses are covered by taxpayers." This is perhaps a suggestion that this whole tempest over $12.00 was even less worthy of the alleged escalation, assault, and words?

All is well that ends well, or so they say. But then there was a complaint to the Judicial Tenure Commission. The "I am a judge" was apparently enough to cause an inquiry into the propriety of "judges announc(ing) their status in commercial dealings." Then, as too often happens, there was allegedly some doubling down. The article reports that when the judges were questioned by the state investigators, there were "numerous false statements." See No Reply (January 2023); Respond Before the Trouble Starts (September 2022); and Don't Double Down (June 2017). Of perhaps more general judicial interest, see Conferences and Consequences (November 2019). At least this was a simple bike dispute and not a shooting after a night of drinking.

The Michigan allegations include citation to the Code of Judicial Conduct, Canons 2(A) and (B). These are focused on the avoidance of "all impropriety and appearance of impropriety," and "conduct that tends to erode confidence in the integrity of the judiciary." There is also mention of Michigan rules that forbid any lawyer from "conduct involving dishonesty, deceit, or misrepresentations . . .," and misrepresentation, and "conduct that is prejudicial to the administration of justice." When at first you misstate or deceive, there is a seeming litany of rules against that. 

The Michigan Supreme Court will assign the issue to another judge to hear the complaint and make "disciplinary recommendation(s)." The Court will then decide whether the complaints against the judges have merit or not. If meritorious, the Court can impose punishment that may include a warning, suspension, or removal.

The Free Press article includes responses from the two judges. They allege, essentially, that they are being unfairly and disproportionately mistreated. Time will tell which view prevails with the judge assigned to hear the complaint, and ultimately the Michigan Supreme Court. In retrospect, however, one really does wonder if all of this was really worth $12.00?

Anytime one feels the urge to utter "do you know who I am," or worse "I am a judge," the slope will become slick rapidly. In the best of situations, such verbiage is unfortunate and unwise. And the "best of situations" are few and far between. P.T. Barnum once said "there is no such thing as bad publicity," but I would suggest he is wrong. And to Horace I would add - this case has not been decided as yet, so let's see how it plays out before we are too critical. After all, presumed innocent until proven guilty (Horace is a lawyer and should know this instinctively). 


Ed. note: Horace Middlemier is not a real person. He is a literary device of no relation to any human living or dead. Any similarity to any living person of any description is purely coincidence. 

Tuesday, January 10, 2023

Suing Social Media

It is possible that one might have overlooked it, but last November there was a quadruple homicide out in a sedate small town in Idaho. As police looked into what is a rare occurrence (homicide) in that little town, there were a number of individuals that took to the world wide web to express their angst and criticism of the town police force. In fairness, the police knew they were in over their heads and quickly called for assistance from both state and federal agencies.

Those who were on the Internet espousing thoughts, criticism, and suggestions ranged from the curious to the critical. They appeared in comment sections of news articles and social media. I have observed in the past that social media can be a vicious place. I was never on Faceplace or Instapic or WhatsUp or Bluedit, or SnapApp. But, I have been using YouTube and LinkedIn for years. I made a foray onto Twitter years ago and abandoned it in about 2021 over the venom and anger there. I returned to Twitter last fall, but not with enthusiasm.

The Idaho murders drew me back to some of the social media platforms and I have to admit disappointment, or perhaps disgust is a better word. The Internet sleuths have been downright brutal in their willingness to reach conclusions, make allegations, and insult so many people. Everyone is driven, it seems, by the desire for response, debate, and affirmation (likes, follows, etc.). Some seemingly have no filter or restraint. There is a certain power that comes from anonymity and being able to hide behind a keyboard. See Anonymity and Emotional Intelligence (July 2022). 

But even those without anonymity seem to lack inhibitions. One self-annointed sleuth has been sued for defamation regarding allegations of involvement in the killings. Though we may be disgusted, we nonetheless view their content, drawn to it, mesmerized. And, somehow their malicious content rises to the fore in our feeds, pages, or other participations. 

The potential for doing harm through social media is nothing new. See Public Harm and Social Media (February 2019). And, it can certainly be a particularly challenging venue for judges. See Judicial Commenting (October 2017). As a new day is envisioned for social media, those investing in the next iteration are focused on glitz and glamour, but largely seem ignorant to, or ambivalent about, the potential for challenges or harm in this desert. See The Metaverse (November 2021). They are not striving to make content or participation better, but only more appealing and addicting. 

There is known potential for harm on social media. Public health officials have been telling us for years about the potential harm. The posting at Columbia University is reasonably representative:
"social media can also provide platforms for bullying and exclusion, unrealistic expectations about body image and sources of popularity, normalization of risk-taking behaviors, and can be detrimental to mental health"
There are many benefits to social media. It has become a source of information. Pew reports that eighty percent of us get news from social media. The potential for good has to be recognized. But, we have to persistently remember that just because something is said on social media does not make it news. Just because it is posted on some app does not make it true, desirable, or worthy. Just because someone has followers does not make them wise, honest, or exemplary. Can we tell the difference? Nonetheless, it is a fixture in our world. An undeniable presence that will not change on its own and will not go away.

This week, the Seattle public school system "filed a novel lawsuit" alleging that the "tech giants" behind some of these social platforms should be held responsible "for the mental health crisis among youth." It claims that social media has "created a public nuisance by targeting their products to children." The alleged results are broad: "including anxiety, depression, disordered eating and cyberbullying." 

The lawsuit alleges that efforts have been exerted by the software engineers and others to "exploit" and "hook" youth. It claims that the result is "excessive use and abuse of Defendants' social media platforms," and persistent exposure to "harmful and exploitive" information and data. There is acknowledgment that the Communications Decency Act protects much of the platform's activity (or inactivity) as regards content. This lawsuit claims liability beyond the horrible postings of third parties (you, me, and the rest of the common people). Instead, it asserts liability based on the way the platforms identify, manipulate, and focus on the young and impressionable. 

Some of us are perhaps older, greyer, and calmer, but it is likely these platforms may be potentially striving just as hard to identify and manipulate us all. 

The hope of the school system is an order ending a "public nuisance." This is essentially injunctive relief where the court would tell the media giants to stop particular practices, programs, or processes. The lawsuit also seeks damages that the schools say are needed for a variety of media-generated, or media-exacerbated, problems among the young and impressionable. Is their effort to attract and retain attention any different than any other marketing effort? 

It is reminiscent, perhaps, of the long and relentless campaign against those who pushed, prodded, and cajoled opioid dependency. Finally, in that national crisis, there was litigation success in one opioid case. One manufacturer was held responsible, then another. There were settlements, bankruptcy, and recrimination. Litigation continues. This is not because opioids are inherently evil or inappropriate, but because the manner of some in marketing and delivering them was wrong and actionable. 

Will social media companies be similarly held responsible? Will the implications be as broad and deep? Or, is this school district lawsuit destined to fail? Time will tell, and it will be interesting to watch. 

Sunday, January 8, 2023

No Reply, No Reply at All

In another age, Genesis brought us No Reply at all (Atlantic 1981). The Lyrics include:
"… I get the feelin' you're tryin' to tell me,
Is there somethin' that I should know?
What excuse are you tryin' to sell me?
Should I be readin' stop or go?
I don't know
There's no reply at all, There's no reply at all, No reply at all"
There is an old idiom about the other side of the eight-ball. Another essentially says "if you are in a hole, stop digging." The inverse is also likely solid advice: "if you are in a hole, start working on climbing out." I ponder a recent order I read, and it leads me back somewhat to a post I authored about a California attorney's woes Don't Double Down (June 2017).

I have been more decades in the litigation business than I like to think about. Sure, I am not yet one of the old-timers, but my spring ended long ago. I can be difficult to get along with sometimes, resistant to change, and perhaps am a bit forgetful in my day-to-day. More than once during the preparation of the recent 2022 OJCC Annual Report, I overlooked an order or two for too long in my preoccupation. We can all get distracted, behind the eight ball, or simply overwhelmed. And, not everyone is as lucky as I am - several people keep an eye on tasks and send me reminders periodically (I am grateful for their prompting, or perhaps scolding).

Without naming the case, some history is perhaps in order in this instance. The case I recently reviewed started in the usual manner. A petition was filed seeking benefits. There was a dispute regarding medical benefits, which is also not unusual at all in this system. But, the dispute, in this case, became contentious, and delaying, and was ultimately submitted to the court for partial resolution. Not the JCC, the Circuit Court.

Well, in fairness, it started with the JCC. The parties to a case had set a doctor's deposition to clarify some points (in the doctor's defense, many such depositions are taken every year, and too often they merely reiterate the records or reports and serve no real purpose; I have had doctors complain that they sometimes feel harassed by such experiences). The doctor failed to appear initially and was ordered to appear in February 2022. He did not. He was ordered to appear and failed again in June 2022. 

 The JCC noted that these were lawful orders and that the statute says "the judge of compensation claims shall certify the facts to the court having jurisdiction" in such situations. The Circuit Court is to conduct summary proceedings. The JCC order in this instance is detailed, and frankly demonstrates a great deal of effort and restraint in terms of affording the doctor multiple chances to appear. Last fall, the Circuit Court acted, issuing an Order to Show Cause. The physician had to testify in the Circuit Court regarding the failure to appear. As much as a deposition is an interruption of the day, and perhaps an annoyance, I suspect that an appearance in Circuit Court is more disruptive.

The Circuit Court ordered the doctor to appear for deposition in the case. The Court stated the date and location for the deposition and added:
"Should Dr. __________ fail to appear live for this duly scheduled deposition, counsel shall provide a certificate of non-appearance to this court and this Court will issue a writ of bodily attachment without further hearing. The writ will be executed and Dr. _____________ will be taken into police custody and held in the __________County Jail until he can be brought before the·undersigned judge for further contempt proceedings."
That is an attention-getter. If you don't appear for the appointment, the police are likely coming to get you and house you until you can appear in court again. In the spectrum of consequences, this one is serious. No one, literally, wants to be locked in a cell. 

In reachint this conclusion, the Court also specifically rejected the doctor's excuses regarding the failures to appear. The judge found the doctor's explanations "inconsistent with the record evidence" and noted the "repeated" efforts to obtain this testimony (the restraint and patience noted above). The Court concluded that the doctor "offered no reasonable explanation as to why he failed to comply." Of particular note (when to stop digging), the Court noted that the doctor was aware of the Circuit Court Show Cause hearing, and "still failed to avail himself of "the purge provision and contact (the) Plaintiffs counsel to arrange for his deposition to be taken." See, when the Circuit order to show cause arrived, the doctor could have made that deposition happen and avoided the Court proceeding. The doctor did not. 

The Court noted that the failures had resulted in delay for the injured worker and employer to have their day in hearing with the JCC. It concluded that when doctors treat workers' compensation patients, they "owe() that patient a duty of reasonable cooperation within that system and compliance with its orders."

The court labeled the failure to appear as "gross negligence amounting to willful and wanton, and exhibiting a total disregard for his patient and the workers' compensation system." and thereupon imposed sanctions. The Court scheduled a follow-up hearing for counsel to report on the outcome of the deposition it had compelled and awarded the claimant's attorney fees from the doctor regarding the efforts at compelling this attendance.

The Court ordered that the Order to Show Cause and the order thereafter (ordering the appearance, imposing the threat of jail, attorney fees) would "be sent to the Department of Professional Responsibility. That is a significant event as well, perhaps.

And, that reminds me of an old poem about a nail, by an author or authors unknown:
For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.
Small things can turn into big things. Big things are likely to be accompanied by big consequences. When the situation begins to go astray, it makes sense to address it. In Respond Before the Trouble Starts (September 2022), I noted
"Mistakes will happen. Challenges will arise. Requests may come. The time for addressing each is immediate. Recovery from not appearing at the contempt hearing or not responding to the records request is far more arduous."
When the JCC orders behavior it is best to comply. If you cannot, will not, or should not, then certainly respond. If you commit to doing something (appear), do so. If you cannot, communicate. If you find yourself with a Circuit Court order to show cause that includes a "purge" paragraph that allows you to end the whole misadventure by simply complying, in this case appearing, you should take it seriously, immediately, and sincerely.

JCCs lack the authority to hold someone in contempt. They might impose financial penalties, such as attorney fees or costs for a proceeding. Or they might refer the matter to the courts, which can impose contempt. I struggle to imagine what would make me miss an appointment if the downside might be my immediate arrest and detention in the local jail. Before it gets to the Circuit Court, such instances can be fixed. That may require time, but likely less than is invested in show cause proceedings.

In the end, a simple nail. At any point, there were persistent chances for redemption, remorse, and remediation. But, in the end, there was an embarrassing cause order, a circuit court hearing, a finding of "inconsistent" explanations, a finding of "gross negligence amounting to willful and wanton," and an imposition of attorney fees. In the end, at least a rider, perhaps a battle, perhaps more. All for the want of a . . . nail" (showing up).

It is troubling, disappointing, and worthy of reflection. When you find yourself in a hole, own it. Stop digging. And look for the path that leads you out. Certainly, any hole may have consequences. But the deeper it gets, the more profound those may be. Quit digging. Fix the problem, learn from the experience, and move on. Unlike wine, such instances rarely get better with time. Though some might go away, the case might settle, it is not the way to bet when your good name hangs in the balance. 
"What excuse are you tryin' to sell me? . . . .
There's no reply at all, There's no reply at all, No reply at all"