Recently an attorney filed a Motion for Fees under Rule 60Q6.124. This Rule requires that someone seeking a fee would file a motion, and continues "any motion for attorney’s fees and/or for costs shall be verified and filed." This particular motion was not verified. The result was an order by the Judge dismissing the Motion without prejudice.
When an attorney or party receives an order, they are informed by that order of some action by the adjudicator. The attorney or party then has the option to react. This may be by Motion for Rehearing or Motion to Vacate, See Rule 60Q6.122. It may by a motion for some other relief, See Rule 60Q6.115(1). It may be acquiescence to the decision. It may be appellate review.
This may not, or at least should not, be a phone call by the party, attorney or the attorney's staff to the District Office staff to ask "what do I do now." In this instance, thought, that call came following the order dismissing the Motion for Fees. The question, "what does verified mean?" This is troublesome. It is more troublesome in that the question came from an experienced attorney.
Verified is defined in Black's Law Dictionary as:
"The word 'verified,' when used in a statute ordinarily imports a verity attested by the sanctity or an oath. It is frequently used interchangeable with 'sworn'."
It took less than a minute to look this up the old fashioned "book" way.
In 1996, the Florida Supreme Court decided Millinger v. Broward County Mental Health Div. and Risk Management, 672 So.2d 24 (Fla., 1996). There the injured worker did not prevail at trial and sought appellate review of the Final Order. The appeal was not timely filed. It was dismissed by the Court of appeal. The case proceeded to the Florida Supreme Court with the Claimant arguing that the timeliness requirement should be disregarded because "Millinger's counsel's legal secretary attesting that she called the Office of the Clerk of the First District Court of Appeal and was informed by an unknown employee that Millinger's notice of appeal would be timely filed so long as it was postmarked within the thirty-day filing period."
Thus, the injured worker sought review of the First DCA dismissal, arguing that detrimental reliance upon the clerk's representation was where the fault lay. The Supreme Court distinguished the authority Claimant cited, New Washington Heights Community Development Conference v. Department of Community Affairs, 515 So.2d 328 (Fla. 3d DCA 1987), and held:
"We find that the reasoning of the opinion in New Washington Heights is not dispositive of this case for at least two reasons. First, Millinger's untimely notice of appeal in this case was not the direct result of misrepresentations of a state official. Attorneys cannot escape procedural errors by claiming reliance on the advice of a court clerk. See United States v. Heller, 957 F.2d 26, 30 (1st Cir.1992); Neeley v. Murchison, 815 F.2d 345, 347 (5th Cir.1987); Spinetti v. Atlantic Richfield Co., 552 F.2d 927 (Temp.Emer.Ct. App. 1977). Second, it was both inappropriate and unnecessary for counsel's secretary to call the court clerk for legal advice. Florida Rule of Appellate Procedure 4.165(a) clearly states: 'An order of a judge of compensation claims may be appealed to the district court by filing a written notice of appeal with the district court or with any judge of compensation claims within 30 days from the date the judge's order is mailed to the parties.'" (Emphasis added).
In the same spirit, it is inappropriate and unnecessary for attorneys to call our District Offices seeking advice or interpretation. If an attorney does not understand an order or a Rule, there are processes and procedures for seeking clarification. If an attorney does not know how to proceed after receiving a ruling, the Judge's staff is not the place to seek advice or information.
If no other solution comes to mind, and counsel is unable to proceed, it is possible a status conference with the Judge might afford edification or clarity. However, this is a last resort potential solution. If all else fails and this is elected, the appropriate method to seek such a conference is a proper motion, See, Rule 60Q6.115(1)("Any request for an order or for other relief shall be by motion").
Before one reaches this last resort, though, one should exhaust the other potential solutions. Research. In this case resort to a legal dictionary would answer the question. Consultation with peers or adversaries. In this case, I posit, a quick call to any of hundreds of workers' compensation practitioners would answer the question.
Counsel should keep in mind that the OJCC staff are not law school graduates or members of the bar. Most often, any advice that is sought from OJCC staff will not be within their knowledge, which suggests that the only way they might answer a question would be consultation with the Judge. This raises the implication of ex parte communication, albeit through a conduit of OJCC staff.
There are many exceptional attorneys practicing Florida workers' compensation law. There are many exceptional judges on this bench in the Twenty-First Century. Attorneys should bring their issues, and the Judges should adjudicate them. The normal course should be motions. That motion might have to be one asking for a status conference when one reaches a roadblock despite research and effort. Please make that your last resort and remember it is inappropriate and unnecessary for attorneys to call our District Offices seeking advice or interpretation from our staff.
