The easy answer is everyone should follow the Rules.
Why should we have rules of procedure? There are many answers to that. The easiest one is that the statute says so. Section 440.45(4) Fla. Stat. says "the Office of the Judges of Compensation Claims shall adopt rules to carry out the purposes of this section."
Beyond the easy answer though, the purpose of procedural rules is essentially transparency and consistency. Any litigant or attorney should be able to answer many "what if" and "how do I" questions by referring to the Rules. They are a road map to the appropriate destination, which one should follow. Judges should expect attorneys and parties to comply with the Rules. Many Judges know the rules better than I and can quote them from memory.
When the Rules say “Any request for an order or for other relief shall be by motion” (60Q6.115(1)), Judges require motions, and decline to act on verbal or correspondence requests for relief or change, except from unrepresented parties. When the rules say “no less than two business days prior to the final hearing, each party is required to file a brief memorandum consisting of a statement of relevant facts and written argument” (60Q6.116(7), Judges expect parties to file their memoranda and materials. When the Rules require that settlement motions include child support documentation from specific counties (60Q6.123(1)(a)5.), Judges will not approve the motion without that documentation.
The whole point in having the Rules, is they make practice predictable. At least they should. When the Rules provided that Judges would not generally enter orders upon stipulations, we nonetheless had Judges who ignored the rules. Some even encouraged attorneys to disregard and break the Rules.
In the current Rules, there is a cost reimbursement “safe harbor” intended to expedite the processing of settlements in which the parties are represented. It is a simple Rule, 60Q6.123(5):
“(5) The judge shall consider the disclosed costs to the extent necessary to determine they do not include the attorney’s overhead or other fees. A claim for cost reimbursement in the amount of $250 or less need not be set forth with specificity or detail.”
Despite this Rule, I am hearing from attorneys that Judges are requesting details about costs within this $250.00 parameter.
I just returned to the office from a trip to an ABA educational conference in Miami. One of the chores associated with travel in my job is the completion of reimbursement forms regarding my expenses. The State has very specific rules regarding reimbursement, and generally I have to have receipts for everything. However, if I am missing a receipt, I can complete a “missing receipt” form, which takes time.
On this trip, I had some toll receipts. When I returned my rental car, I left them in the console. Yesterday, as I completed my reimbursement paperwork, I realized they were missing. I elected not to complete the missing receipt form though. I do not recall the toll (something less than a dollar), and the time I would spend researching the amount and completing the form is not worth the reimbursement for the toll. This is a classic cost-benefit analysis from high school economics. My time (cost) is worth more than the money that I would recover with the research and the form (benefit). The point is, some paperwork is not worth the time it requires to complete.
The same logic is behind Rule 60Q6.123(5). That is, the Claimant’s attorney’s time (cost) is more valuable than the benefit (less that $250.00 in costs). The delay for the carrier (cost) in seeing the settlement approved is more valuable than the benefit. The effort of the Judge or staff (cost) in reviewing any details of the costs when they are less than $250.00 is more valuable than the benefit. In short, the costs to the worker’s compensation system, associated with documenting or reviewing minimal (less than $250.00) costs, outweighs any benefit.
The simple solution, let’s not waste time with costs under $250.00. The merits and detriments of this simple solution were vetted by claimant’s counsel and defense. The Florida Bar Workers’ Compensation Section and Florida Workers’ Advocates leadership weighed, debated and commented. The Florida Bar Rules Advisory Committee had the opportunity to comment. The Rule was published and commented upon.
Rule 60Q6.123(5) is the considered and vetted procedure published by the Office of Judges of Compensation Claims in Rule, pursuant to statute. Despite that Rule, there are allegedly some judges who continue to demand detail and specificity on costs that are within the $250.00 threshold, or who deny cost reimbursement within that threshold in the absence of documentation. If this is true, then there are judges who are not following the Rule.
If there are Judges who are not following the Rules, then it is my hope that their order(s) explains why they have elected in a given instance to not disregard the Rule. The core of Judicial independence is your absolute obligation to support the Judge even when they rule against you. No one wants anyone telling Judges how to rule, and I will not do so. However, I think we all have the right to expect Judges to either follow the Rules or to have their rulings explain why they did not.
If Rules are ignored without explanation, and this is the example we are setting, it troubles me. I think judges have every right to expect attorneys and parties to follow the rules. By the same token, I think the citizens of Florida have every right to expect that their judges likewise follow the Rules or explain why they are not.
Or should everyone just be free to obey the rules that they personally find convenient and ignore the ones which they do not? I would like to hear from you, david.langham@doah.state.fl.us
