A recent situation in Athens, Alabama made the news in St. Louis, Missouri. Through the wonder of the Internet, the story appeared on one of my news feeds, and it struck my interest.
There has been ample discussion of the COVID-19 Corona Virus. The news is covered up with various aspects of the developing situation, and I know a few folks living on the edge of their seat, awaiting the next announcement or mention. A great deal of angst is involved in the "what if" questions.
On March 10, 2020 I made some reminder announcements about the situation. That provided some suggestions on how to deal with the unexpected or complicated in workers' compensation litigation. Essentially:
"identify issues or complications, file a motion to accommodate or alleviate them."
I have had lawyers inquire about whether the OJCC will "change the rules" regarding telephonic appearances at hearings and mediations. The rule-making process is to broadly define the procedure. The rules leave room for discretion in both the mediator's and judge's hands. Therefore, there is no need to change the rules when a situation arises, there is merely the need to present the details, and invoke the exercise of that discretion.
Note that the Florida Courts have entered a posture of "watch and prepare," as reported by the National Center for State Courts (in a recent, but undated post). Florida is not alone, that article outlines a variety of efforts underway in judicial branch settings across the country. This notes that America has "more than 22 million U.S. residents (who) have contracted influenza" this season. The effects of viruses can be significant, and preparedness is worthwhile in the broadest contexts. Details for Florida are being aggregated by The Florida Bar, to keep the public informed.
File a motion, present the details, and seek relief. That is coincidentally where the St. Louis coverage of this Alabama case begins. ABCStLouis.com reports that a "longtime Alabama sheriff" stands accused of theft. His trial was scheduled to begin Monday, March 9, 2020. Just before, his attorneys allegedly "told a judge in a court document filed Friday he was hospitalized and being tested for COVID-19." Make no mistake, a viral infection is by definition "circumstance beyond the control of the parties." See section 440.25(4)(b). The severity of such a viral infection might or might not justify the continuance of a trial in the Florida workers' compensation system. However, the process of filing a motion and seeking relief is seemingly an appropriate starting place.
The filing led to "a rare Saturday hearing." There, a physician was called to testify. She testified the defendant "was tested for several things, including influenza and walking pneumonia, but the results came back negative." Her testimony did not support that there was even suspicion of, or testing for, the COVID-19 virus. The "doctor testified there was no indication it was COVID-19 and such testing wasn't needed."
This testimony left the defense attorney explaining the Friday filing. That it was inaccurate in its reference to COVID-19 seems clear to some. The conclusion of Circuit Judge Judge Pride Tompkins was criticism of "the defense for making claims that could cause a public panic." The Judge was quoted by "The News Courier of Athens":
"'I don't know what your tactic is, but it's condemned by the court,' Tompkins said. 'And the court won't tolerate it.'”
From at least that Judge's perspective, the representations of COVID-19 involvement were questioned and at least somewhat doubted. The end result may be a lasting impression of the attorney involved.
The story notes that the lawyer who filed that motion explained that "he was simply mistaken about the sheriff's health problem." He denied that he was “trying to pull a fast one.” He stressed that in drafting the Friday filing, he had less-than-perfect information. He proceeded with "what we knew at that moment." Following the Saturday hearing, there are questions as to when the trial will proceed, according to ABC13, WAAY. At this time, all trials in that area have been postponed, similarly to other constitutional court systems in the country.
This motion illustrates a peril in the practice of law. On the one hand, lawyers seek to be prompt and proactive. Presented with a situation, through words or interpretations, it is perfectly possible for an attorney or staff to be provided with less than the whole story. This becomes a particular risk, in my experience, when communication is passed from person to person verbally. The message may become confused as it is passed. Each person may imprint the situation with interpretations, assumptions, or conclusions (warranted or not). Along the way, some details or facts may be omitted in the restatement.
Lawyers may need to be quick to act regarding information provided by a client, family member, or friend. But, even after acting in good faith, the attorney must continue to follow up to assure the accuracy of representations. Any time a mistake is identified, the attorney should proactively seek to remedy any miscommunication or mistake. It is preferable to correct such a mistake early, and certainly before being confronted with the mistake in a hearing. The COVID-19 situation brings us a chance to revisit appropriate conduct and professionalism in the practice.
It is a cautionary tale worthy of consideration in daily interactions. Litigation is stressful enough without such complications of incomplete or incorrect information. Lawyers are well advised to verify information and make appropriate corrections when mistakes are identified.
