Public Perception

The Louisville Courier-Journal (subscription) recently published A lawyer threatened to kill 2 other attorneys. Why did the Kentucky bar dismiss the case? The article raises some significant questions about public safety. The complaint was filed by an attorney, alleging that another attorney violated:

"ethics rules when he allegedly threatened to kill two 'highly respected' attorneys, one of whom represents his ex-wife and the other his children."

Despite that, the Bar has dismissed the case. Some will likely argue this is a situation where someone overreacted, and dismissal is appropriate. Others may argue that this is lackadaisical of the Bar. Still others may simply question whether the Bar was able to find evidence to substantiate the charges. The reasons for dismissal could be diverse and specific. But, as the Journal notes, the reasons for dismissal have not as yet been stated.

The story reminded me of various state's recent press to pass "red flag laws" in response to school shootings. The idea being to identify persons at risk for doing violence, and intervening before there is violence. Whether that is a viable course is up to the reader.

We have also seen persons prosecuted criminally for making threats. A man was indicted in February for making threats, according to The Hill. That was against a Congressional Representative. A man in Michigan was charged for making threats against an attorney, according to Politico. The Washington Post reports that a young man was recently charged for threats to professional and amateur athletes. Threats, in some settings are the foundation for criminal prosecution, but in others are not deemed appropriate for professional intervention. The public may struggle with that distinction.

There have been times when stress got the better of someone. We are all susceptible to stress, emotion, and specifically anger. Stress is a constant in the environment of litigation. Though this post begins with Kentucky (about which I lack foundation and knowledge), a review of the Florida process for lawyer discipline might provide illustration.

In Florida, the regulation of attorneys is delegated by the people to the Florida Supreme Court. Florida Constitution, Article V., Section 15. This authority is facilitated through the Rules Regulating The Florida Bar, resulting in a process in which The Florida Bar plays a role in investigating and prosecuting allegations of lawyer misconduct. Ultimately, the Court decides what penalties are imposed in cases that the bar elects to prosecute, and in which it is successful.

The process often involves the Court appointing a referee to hear the charges against an attorney. The referee then makes recommendations as to the finding of guilt and the appropriate discipline. Those recommendations are "persuasive" upon the Court, but not binding. The "Court has the ultimate responsibility to determine the appropriate sanction." The Florida Bar v. Temmer, 753 So. 2d 555 (Fla. 1999). When the Court finds a referee recommendation does not have "a reasonable basis in existing case law," the Court may take a different direction than the referee recommendation.

The Florida Court has explained that "the purpose of lawyer discipline is threefold." The first purpose is to "protect the public from unethical conduct but at the same time not deny the public the services of a qualified attorney." The second is to "be fair to the attorney," with the object of correcting “the wayward tendency in the accused lawyer while offering to [the lawyer] a fair and reasonable opportunity for rehabilitation.” And, the third is to "operate as an effective deterrent to other lawyers who might be prone or tempted to become involved in like violations." The Florida Bar v. Cox, 794 So. 2d 1278 (Fla 2001).

There are instances in which attorney conduct is attributed to discreet causes, or even disability. The Court has at times concluded that mitigation factors warrant imposition of a less severe sanction. The Florida Bar v. Condon, 632 So. 2d 70 (Fla. 1994); The Florida Bar v. Wells, 602 So. 2d 1236 (Fla. 1992). The Court has also sometimes concluded that efforts at rehabilitation, such as engaging in treatment, are not sufficiently mitigating to preclude imposition of serious sanction, even including disbarment. The Florida Bar v. Gross, 896 So. 2d 742 (Fla. 2005 ); The Florida Bar v. Brownstein, 953 So. 2d 502 (Fla 2007). Mitigation factors are to be considered when discipline is determined, and those factors may be rejected in a particular case. The Florida Bar v. Bloom, 972 So. 2d 172 (Fla. 2007).

The Journal article notes that the complaining lawyer believes the Bar directed the complaint to "alternative disposition." This is perhaps tied to the involvement of the Kentucky Lawyer Assistance Program, an agency that "helps lawyers with substance abuse issues and other problems." (Florida has a similar program the Florida Lawyers' Assistance Program or FLA.) The Journal notes that this attorney "has a history of alcoholism and drug addiction," and has acknowledged in the past "that he is in treatment." It is noteworthy that such programs have provided assistance for stress. They are not necessarily tied strictly to substance use issues.

So, the probability is that there may be a similar process in Kentucky. Through that process, for whatever reason, the Bar elected in this instance not to proceed with any disciplinary action. That resulted in the news media involvement, publicity, and perhaps the public having questions. The greatest downside of this situation presently is the potential tarnish it brings to the legal profession generally.

One lawyer felt strongly enough to invoke a process. It is a time when each day seemingly brings a "shouldn't someone have noticed" story. It is easy to find stories in the news of threats being perceived, investigated, and dealt with by police. And, the coverage that has been provided in this instance is inadequate to (1) inform the public of the foundation to the Bar's decision and (2) assuage any concerns that lawyers are merely treated differently. Seemingly, as a result, the issue is instead being discussed in the press.

This may or may not be troublesome in the broadest context of lawyers and the Bar. But, it is worthy of discussion. There is value in the rehabilitation of individuals in need. There is value in preventing harm and deterring threats. There is value in professionalism and cordiality in the practice of law and resolution of disputes. And, there are instances in which those values may not all perfectly align. The public is left to interpret and perceive as it will, in the absence of definitive information. It is worthy of discussion.

When We Return to Normal

Throughout the COVID-19 onset, the Florida OJCC has striven to maintain operations. The main changes have been the suspension of sworn child support representations for settlements under Rule 60Q6.123 and the mandate of telephonic mediation. The COVID-19 situation is constantly evolving, Florida is currently re-opening, and there is hope we are all returning to normal (having not missed a day in the office yet, this "return" characterization is difficult for many of us).

There has been much discussion about "coming back" lately. An ABC News affiliate in April reported angst in Northern Virginia about federal workers returning to offices. There is concern about crowded elevators, cleaning workstations, and more. That article noted that "although some are still going to work every day, many federal employees have not been to their offices in weeks." That distinction is likely true in various workplaces. As I hear news from across the country, some workers' compensation systems in the U.S. find themselves in similar discussions. Offices have been closed, employees furloughed or sent to telecommute, and entire processes are in the course of a difficult recovery. There will be precautions, processes, and challenges with increased foot traffic.

Notably, there are also those who never left. The Florida OJCC has maintained operations throughout, in the same 17 district offices across the state. There have been minor changes in operations, primarily for minimizing exposures, but few wholesale changes. Hearings, including final hearings, have proceeded throughout. Notably, the continuance of final hearings has increased, in large part apparently attributable to challenges with memorializing evidence. Many continuance motions cite an inability to obtain medical depositions at this time.

As an aside, I ran recently across an intriguing motion in which a party sought to compel discovery involving a medical expert. The attorney made some unrealistic ultimatums to opposing counsel regarding immediate discovery (essentially "I want dates for a deposition now"). The physician witness objected and explained that her/his time was a bit congested currently dealing with a worldwide pandemic (note to the community: the primary role of physicians is not giving depositions, writing reports, and completing forms; the primary role is actually about treating patients who need care). Despite that explanation, and although various future dates were provided by the physician, the attorney filed a motion to compel. Certainly, everyone faces frustrations in this time of COVID, but Let Us Be the Leaders of Professionalism. It is disappointing to see lawyers frustrated and reacting inappropriately; in such a pandemic, it is understandable (we are all only human), but still disappointing.

Some OJCC employees have requested to telecommute, and some of those requests have been accommodated, though our customers have likely not noticed. The main OJCC changes in operations have been the mandate of telephonic mediation and the use of Internet video-conferencing (ZOOM) for hearings. And, everyone anticipates that mandates and emergency action will end at some point. Florida in general is returning to pre-COVID. Much remains, as theme parks, nightclubs, and others await clearance to open; constraints and cautions remain, but opening is progressing. It is anticipated that in that spirit, the OJCC will end the telephonic mediation mandate and return the discretion in that regard to the individual mediators. Rule 60Q6.110(5).

See, telephonic mediation has long been an option in Florida. The COVID did not create it or define it. The COVID led to mandating it temporarily. But, pre-COVID hundreds of cases were telephonically mediated each year; there is every anticipation that hundreds will be mediated each year even when COVID ends. The difference is that absent a mandate, the parties and mediator work together in deciding which proceedings, or which particular parties, will mediate telephonically. In the recent past, the mandate temporarily removed that discretion. When the time comes to end that mandate (currently set to expire May 31, 2020, but check back for updates), that does not mean telephonic mediation ends, it merely means parties and mediators will again have discretion.

Some mediators have been among the OJCC team telecommuting. When the telephonic mediation mandate ends, some of those mediators may remain telecommuting. Others may remain on a "telephonic-only" paradigm per their discretion under the rule. Still others may return to in-person as a default and look to the parties to seek telephonic accommodation if that is desired. The best course, if a lawyer or party is unsure in a particular instance or case, will be to contact that assigned mediator and inquire. If attending proceedings in person, you will be asked to wear a face mask in all OJCC offices. Space may be limited, and therefore it is possible only parties and counsel will be able to be in mediation rooms or hearings (others may have to wait in lobbies, hallways, or elsewhere so as to accomodate social distancing).

Throughout March, April, and May, the OJCC has conducted hearings. Some have been in person, though admittedly the appetite for those has diminished. The long history of video teleconference (VTC) hearings has continued, though there has also been less demand for that alternative. Others have been telephonic, with the obvious challenges for credibility determinations. Since March, we have begun using ZOOM for hearings, with great success. This platform is easy to use and is accessible even from a smartphone, a benefit for those who may lack access to other webcams. In the coming days, the trend may be back toward in-person proceedings. Please remember the mask and social distancing requirements in those instances.

Throughout the COVID experience, it has remained in the assigned Judge's discretion whether to hold hearings live, via VTC, telephonic, or ZOOM. That discretion will not change as Florida re-opens. Those platforms have all been used during this COVIDetour and they will all remain in the Judge's toolbox moving forward. Parties that wish to influence which platform is employed in a particular case should assert their preference by filing a motion (Rule 60Q6.115(1): "Any request for an order or for other relief").

The actions of others have impacted the Florida OJCC. Three buildings in which we lease space have barred the public from entering in recent months. In this regard, we are limited by our landlords in affording some alternatives such as in-person mediations or hearings. The restrictions of those buildings (Miami, Fort Pierce/Pt. St. Lucie/St. Petersburg) will evolve and change as the Florida situation overall. Thus, even absent any mandate, the opportunities for live events in those venues may remain constrained for some time. The FLOJCC will strive to keep the public informed in that regard on the announcements blog, on Facebook, Twitter, Instagram, LinkedIn, this blog, and the website.

When the temporary Administrative change to Rule 60Q6.123 ends, all settlements will again have to include "A sworn statement by the employee that all existing child support obligations." That requirement was temporarily excused primarily because injured workers were struggling to find notaries available. Of note, Florida has created "online notarizations" (post of March 15, 2020)". That came in 2019 and remained novel and largely unnoticed by the workers' compensation community in early 2020. But, since COVID-19, everyone has now had March, April, and May to secure their credentials as an "online notary," various businesses offering such services exist, and traditional notary service providers have re-opened. Providing such a "sworn statement" should present less challenge moving forward. Of course, in any particular case, a party could seek relief from that "sworn statement" requirement through Rule 60Q6.115(1): "Any request for an order or for other relief."

In short, I am tremendously proud of the Florida OJCC team. Judges, Mediators, Clerks, staff, and our security guards have risen to (above and beyond) the call. While workers' compensation systems throughout the country have struggled, furloughed, and even closed, your Florida OJCC has maintained, persevered, and operated.

In that, we are blessed with having long ago evolved and modernized. In a recent phone call, I heard some state officials explain their recent COVID-era struggles with things called "paper" and "mail." With the help of my trusty Internet, I researched these unfamiliar terms and enjoyed reminiscing. I remember when we used "paper," the "mail," and even the Pony Express here in Florida. It seems like it was the "last century," when in fact it was less than 15 years ago. This community's acceptance of e-filing and e-service, your enthusiasm, attitudes, and acceptance have empowered the digital age and the OJCC response to COVID-19. As an aside, we hope to deploy e-service for certain employers soon; it just gets better and better.

Without e-JCC, operations during COVID-19 would have been more difficult, telecommuting harder to accommodate, and our customer service less seamless. For that, we are grateful to the OJCC IT team, but more so to you the workers' compensation community. In 2015, I wondered Which State Will be the Last to Embrace E-Filing (May 2015). In 2020 as we work through COVID-19 and I hear about jurisdiction's struggles with "paper" and "mail," I wonder again when they will all join us in the Twenty-First Century. And, I thank you again for making it possible for us to be so technology-prepared, flexible, and dynamic.

When will the telephonic mediation mandate and waiver of sworn child support statements end? That remains to be seen (currently set to expire May 31, 2020; stay tuned for further announcements). However, when these exceptions end, we will merely return to operation under the rules. We, lawyers, adjusters, experts, and more, will note that things are not that different. We will simply inquire about particular mediations and hearings; we will adapt back to our prior paradigm. We will prevail and thrive.

We will move forward providing service to the people for whom this system was created: Florida's employees and employers. We will perhaps struggle (we have to remind ourselves we are only human). We will overcome and serve. I am proud of you for it. In my perspective, each person in this community is essential in every regard. I am grateful for you and appreciate you. Thank you for all you do.

STRENUOUSLY Encouraged

Arizona made the news recently with a memorandum regarding COVID-19/Wuhan/SARS-CoV-2. It was somewhat reminiscent of Lt. Commander JoAnne Galloway in A Few Good Men back in 1992. Her evidentiary objection at trial is described shortly thereafter by Lt. Weinberg:

"Sam Weinberg: 'I strenuously object?' Is that how it’s done? Hm? 'Objection, your Honor!' 'Overruled' 'No, no. I STRENUOUSLY object.' 'Oh! You strenuously object. Then I’ll take some time and reconsider.'”

The Industrial Commission of Arizona issued a Substantive Policy Statement effective May 15, 2020. This says that those "administering Arizona workers’ compensation claims may not categorically deny COVID-19 claims" (Emphasis in original). Such a statement might lead one to wonder if the Commission views non-COVID-19 claims less emphatically? Later in the statement, the Commission perhaps disabuses any such misconception: 

"Like all workers’ compensation claims, a denial of a COVID-19 claim must be based upon a reasonable investigation and must be based on facts and evidence relevant to the claim." 

Such denial of COVID-19: 

"like any claim denial, must be 'well-grounded in fact' and 'warranted by existing law' (or based upon a good faith argument for the extension, modification, or reversal of existing law)." 

That clarifies it, perhaps. But if all denials must be so predicated, some may question why a separate and special Statement was deemed necessary as regards COVID-19 (we object to you denying claims without reasonable investigation or in bad faith, but we STRENUOUSLY object to you doing so regarding a COVID-19 claim?)

The implication also reminded me of a question raised on one of the national webinar discussions of COVID-19 (which seems like eons ago but was likely in April). The foundation was essentially "why not just accept such claims, they should not be that expensive." Economically there may be merit in that thought process. As mentioned Recently in COVID-19 AGAIN, a New Week, a great many may only suffer minimal injury-caused (direct) loss from this virus. But, there are also indications that some state presumptions may implicate billions of dollars in liability. That post also describes an attempt to categorize the damages from COVID infection into "immediate," "intermediate," and "long term" categories. 

Those with immediate costs (the quarantine period, the COVID test, etc.) might comprise the majority of affected employees. But, some have suffered long-term infections. One in Ontario, Canada has tested positive eight times. She has been experiencing symptoms for about 50 days, including shortness of breath. CNN reported on a Floridian that has been stuck for 62 days, since testing positive eight times. Thus, the initial quarantine for some may be more lengthy, and thus more costly, than for others. 

There is debate as to when a patient has "recovered" from COVID-19. That has led some jurisdictions not to report how many have "recovered," as described by The News and Observer regarding North Carolina. Is it primary symptoms, active infection, or the end of "residual symptoms and complications?" At what moment is one "recovered?" The Dallas News reports that various questions lead to doubts in definition of, reliability of, recovery figures. Therefore, some elect not to publish such conclusions. In that environment, a payer might likewise wonder how serious, or potentially serious, any particular case might be. 

At this stage, we wonder if recovery from COVID-19 brings immunity from future infection. Some have expressed doubts as to "herd immunity," as reported by the Mirror. There have been studies that support monkeys do develop that immunity, as recently reported by Reuters. SkyNews recently reported doubts as to the longevity of immunity, perhaps lasting only six months after infection. The various studies, reports, and news merely leave us all with conflicting hopes and varying conclusions. 

The World Health Organization (WHO) as recently as April suggested that "the idea that one-time infection can lead to immunity remains unproven." But, the WHO's credibility has been called into question, according to the Wall Street Journal. Overall, finding credible COVID-19 news can be a challenge. MarketWatch recently reported on a study of news coverage. A study of over 1,500 articles rated news providers on their content: "Not a single major news outlet cracked the top 10" in the rankings. The number one news source for COVID, according to that research, was Smithsonian Magazine. Thus, today we wonder where this virus is taking us. We hear reporters tell us of the "new normal," but some encourage us not to reach conclusions just yet on what that will look like. 

A patient apparently might find themselves infected, reinfected, and reinfected yet again. The serious and long-term medical downsides like fibrosis, or other complications, could occur through any one of those infections. As an employee progresses through life, it is possible that litigation might eventually ensue as to which of several infections caused the need for particular care or resulted in the particular disability or impairment for which compensation is sought. The facts are, as of May 2020, no one credibly and completely can claim to know what all the COVID-19 facts are. We perhaps don't even yet know what we don't know. 

There is potential for permanent or at least long-term health issues. Healthline reported that "respiratory infections can damage lungs." The risks include asthma, wheezing, or a persistent "shortness of breath — even after lung function returns to normal." ABC News reports that some believe a patient could "develop lung fibrosis" from this infection. There is some suggestion that some patients might "never regain lung function." There is some risk of lung tissue being permanently damaged or "destroyed by the virus." 

There are many questions at this stage. As ABC noted: "the very first people who contracted COVID-19 and recovered are less than six months" into recovery. It is seemingly too soon to make valid predictions on the future impacts this disease may hold for various individuals. Thus, assessing the "cost" of accepting the compensability of such a condition might be equally challenging at the present time. 

It is worth mentioning that there are notable limitations on workers' compensation death benefits in most jurisdictions. Thus, those benefits are perhaps more readily predicted. However, they might not be the most expensive element of a COVID-19 workers' compensation claim. Intensive care hospitalization, ventilators, and more could result in significant costs reasonably rapidly. Fortunately, at least thus far, the frequency of death has not been as high as initially forecast. One model predicted 2.2 million dead, according to the CATO Institute. Instead, most appear to suffer far less severe outcomes. Some conclude that as many as 80% of those infected exhibit little or no symptoms. 

There is much uncertainty and many questions. In the midst of this uncertainty, a payer might accept such a claim in 2020 with less than full knowledge of what the medical or impairment future holds for a particular patient. In some states, the acceptance of such a claim predicated upon a "cost" perceived to be in the immediate category might preclude that payer from later changing course or denying further care and treatment of the condition or the damage it causes. See Waiver and Estoppel (June 2017). 

In the end, the valid conclusion today seems to be uncertainty. Where this condition will lead a particular patient seems unclear and difficult to predict. That is perhaps not different from various other health challenges faced by various patients. Some state action regarding presumptions is perhaps making those compensability decisions for payers. Possibly the Arizona directive regarding denial is less conclusive or directive than a presumption, but nonetheless "encouraging acceptance" of this diagnosis? Time will tell where this malady leads, and what responses were appropriate.

There appear to be many concerns for us personally and as a society. Government is making decisions about the disease, sometimes on less than-perfect information as the science continues to struggle with interpretation and prediction. The effects, in the long term, personally and beyond, are elusive. Time will tell all; "hindsight is always 20/20."

COVID-19 Regressive Impact

There has been discussion over the years about taxation and various perspectives of "fairness." When is a tax fair or unfair? The answer from a particular person may be influenced by personal perspective. I once heard a radio show personality pontificate "a fair tax is one I don't have to pay." I have been unable to find that attributed on the Internet. 

Taxes come in many descriptions, income, sales, excise, and more. But, regardless of their title, some contend that all taxes can be categorized as either "progressive" or "regressive." A regressive tax, according to Investopedia, is "a tax applied uniformly, taking a larger percentage of income from low-income earners than from high-income earners." In contrast, a progressive tax "imposes a lower tax rate on low-income earners . . . making it based on the taxpayer's ability to pay." There have been sound arguments voiced in favor and in opposition of each. 

The recent discussions of COVID-19/Wuhan/SARS-CoV-2 has brought the topic of taxation to the fore for discussion in the context of workers' compensation. COVID-19 potentially impacts workers' compensation. See A Frank Conversation of COVID-19, COVID and Workers' Compensation (May 2020), and COVID-19 Again, a New Week (May 2020). An underlying theme of these discussions is the attribution of COVID causation to the workplace. When an employee is stricken with such a viral event, there are immediate, intermediate, and long-term financial potentials that bear consideration. However, ultimately, Someone has to Pay (May 2016) for all of the costs. 

Will that cost be borne by individuals (those who are infected)? Will that cost be borne by health insurance, society (social safety nets like Medicaid), or taxpayers more generally? Is it logical to have that cost borne (in any part) by workers' compensation? I often have to remind myself in lectures that: 

"the fundamental purpose of workmen's compensation is to relieve society of the burden of caring for an injured employee by placing the burden on the industry involved." Sullivan v. Mayo, 121 So. 2d 424, 430 (Fla. 1960). 

This foundational premise is why only injuries that "arise out of" and in "the course and scope of" employment are compensable in workers' compensation. Workers' compensation is a socialization of the cost of workplace injury, not a socialization of all of everyone's illnesses, injuries, and maladies. 

California, by executive order, has altered its workers' compensation law recently in response to COVID-19. Seemingly rejecting the foundational premise focused on "the industry involved," that state has decided to socialize the cost of COVID-19 (in part, keep reading) through workers' compensation. The Workers' Compensation Insurance Rating Bureau ("WCIRB") recently published its predictions regarding the potential costs of this expansion of workers' compensation through a rebuttable presumption of COVID-19 compensability for many California workers. According to WorkCompCentral (pay site) the cost may be between $600 million and $1.8 billion. 

California is (1) the largest U.S. state by population; (2) the broadest example of the executive retroactive expansion of workers' compensation coverage in response to COVID-19; (3) The most expensive workers' compensation premium state in the 2016 Oregon Study, and (4) the second most expensive workers' compensation premium state in 2018 (the latest year analysis available, at the same link above). It is therefore possible that the impact of such a broad expansion of workers' compensation coverage would be different in other jurisdictions. It is notable that Hawaii has one of the more liberal standards for compensability of occupational illness and ranked only 13th in the 2018 Oregon Study. Hawaii is discussed further in COVID-19 Again, a New Week (May 2020). 

In analyzing the impact of summarily including COVID-19 in workers' compensation, it is perhaps important to understand that the "costs" associated with COVID-19 may fall into various categories. I describe these as "immediate," "intermediate," and "long term" (which includes permanent). Some may fall within the parameters outlined for coverage in workers' compensation, but other expenses may fall without such coverage, despite the generous California parameters. 

Upon even suspicion of infection, there is the Center for Disease Control (CDC) recommendation for "self-quarantine" or "isolation." Either one calls upon the individual to "stay home" and thus for many workers unable to telecommute to miss work. Potentially, one is fortunate and has paid sick leave, but according to Pew Research, about 24% (33.6 million) of American workers do not. Even those that do may have a minimal balance at any time due to their prior sick leave use in that year. Thus, even suspicion of infection could lead to (immediate) economic loss (for the employee off work and/or the employer who loses productivity). And, if that person is ultimately not diagnosed, then even the most liberal workers' compensation interpretations like California would seemingly provide no recompense. 

Once there is a positive diagnosis, the intermediate costs come into focus. There may be testing to be performed, medications to take (likely symptom relief), physician bills (initial visit $100-$200, emergency room perhaps as high as $500), and missed work (two weeks [$8.46 minimum wage x 80 hours = $676.80] or more). It is possible that some of the medical costs would fall within the "immediate" category depending on test availability and other variables. These costs could easily reach $1,000.00 or more. Of note, the California executive order proclaims there will be no "waiting period" before lost wage benefits (a distinction from other work injuries there). It is likely a great many cases would be limited to the "intermediate" costs. 

The "long-term" potential may include hospital inpatient treatment (about $10,700 per night; intensive care is more expensive; "mechanical ventilation" alone may be as high as an additional $1,522 per day). Data varies, but hospitalization might average 8 days, according to the Daily and Sunday Express. Complications such as ventilation might extend that to 16 days (remembering that in any average there may be examples much lower or much higher than that mean). It is practical to suspect that a hospitalization and work absence for COVID care might easily equal or exceed $100,000.00. Of note, the WCIRB report expresses different estimates for both physician and hospital care, likely based upon fee schedules specific to workers' compensation). 

The "long term" potential has to also contemplate that there is a risk of the ultimate cost. Though the percentages are small, some people are killed by this disease and by the side effects that accompany it. Evaluating the financial impact of death is impractical without specific facts. Of course, all death is regrettable and tragic. lawyers and others struggle to calculate financial recompense to compensate for such loss. For the purpose of this example, however, workers' compensation in California provides up to $10,000 for "actual funeral expenses, and up to $320,000 in benefits to dependent survivors. Death benefits vary from state to state, but in workers' compensation, the benefits are likely to be defined and readily determinable in any particular case (often calculated based on the number of dependents). For a serious case involving extended hospital intensive care and ultimately ending in death, a single case valuation of one million dollars is not unimaginable. 

Who would pay these costs? Does the answer have to be the same for immediate, intermediate, and long-term? The obvious distinction is the "quarantine" period suffered by someone not ultimately diagnosed. The presumption covers only those "who contract COVID-19." That quarantine person who is ultimately negative may be left to cover that immediate cost in any jurisdiction, or in some instances, it might be paid by Family Medical Leave Act ("FMLA") safety-net expansions rapidly passed by Congress. The intermediate costs might be more likely to be paid by workers' compensation when proven or in jurisdictions that presume compensability. The long term might be paid by workers' compensation or again begin to be excluded upon arguments of causation of need for care as between the treatment of COVID and the causative contribution of other co-morbidities like heart disease, asthma, lung disease, obesity, diabetes, and more. A question may be raised as to actual cause of death in any jurisdiction, as opposed to coincidence of death with diagnosis. 

I was recently asked why these workers' compensation compensability questions are here and now, rather than long-resolved. Workers' compensation, after all, has been around for over a century in various jurisdictions. The premise of the question is that COVID-19 is somehow different. Back to perspectives, some would contend it is a virus and that is nothing new. But, the other perspective is that it is a virus without vaccine (currently), and for which there were initial predictions that were alarming. The 1918 influenza pandemic was significant and expensive, but occurred in the infancy of workers' compensation when it was more predominantly an "accident" construct that did not include occupational disease as a subset. Thus, it is arguable that COVID is the first real viral pandemic in the age of modern workers' compensation. 

As to the potential effects, some scientists predicted "2.2 million deaths in the U.S.," according to Business Insider. Whether those predictions were merely misguided, or maladjusted, some of their predictions were simply wrong. Thus, on the predicate of those huge infection and death predictions, the government reacted forcefully and expeditiously. Science has been lauded in the news, but some have been disappointed in the various opinions (it can't be transmitted by human contact, it can be, wear masks, don't wear masks, take this supplement, try this medication, etc.). Some seem to have developed doubts regarding the experts and their recommendations as this pandemic has evolved. Neither science nor scientists have been infallible in their advice or predictions. 

The other reason these questions are here and now is the latency of this particular viral assault. One may be a viral carrier without any idea that she/he is infected. Healthline predicts perhaps 50 percent of People with COVID-19 Aren't Aware They Have the Virus. The New England Journal of Medicine contends that "asymptomatic transmission" is the "Achilles' Heel of Current Strategies" against the virus. Those who do have symptoms may suffer some or all of a variety of potentials. In short, it is difficult to know if you have it, when you got it, or how it will affect you (though some expensive processes exist to prove source if you could obtain the necessary samples, see COVID-19 Again, a New Week (May 2020). There are many unknowns, and those are likely making it feared, us anxious, and thus more reason for debate here and now. 

Thus, states are reacting legislatively and through executive or regulatory actions, as discussed in COVID and Workers' Compensation (May 2020). And, those reactions are about who will pay the cost of this pandemic. Remember, the costs above are either borne by the person infected or they are socialized in some manner (group health, sick days, short-term disability, workers' compensation, Medicare, Medicaid, etc.). No government or scientific effort will eliminate that there is cost (human and/or financial). The efforts regarding COVID-19 and workers' compensation are not as to the "what" of costs, but merely the "who" will bear them. Some will argue that the involvement of workers' compensation is in fulfillment of the "placing the burden" mandate, while others will find it the opposite. 

This brings us back to the "progressive" and "regressive" discussion at the inception. It is a familiar discussion as regards taxation. But, in most contexts, workers' compensation is not popularly regarded as a "tax," although some states are "monopolistic" and thus liability for benefits may ultimately fall to the state's taxpayers. These include "North Dakota, Ohio, Wyoming, and Washington" according to Investopedia. Even in those models, there is effort focused on the businesses each paying "premium" rather than broad taxpayer funding of the paradigm. 

Consider a simple business model. The product is frozen peas. peas are grown, harvested, and delivered to a packager/distributor, and ultimately to a retailer where we purchase. For simplicity of math, the "costs" of this product are $1.00 per unit (bag), which sells to the market (distributor or retailer) at $2.00 per unit, and then retails for $3.00. We, as consumers, pay the $3.00 and feed our families. Built into that price are the costs (fuel, equipment, payroll, marketing) and profit for each of the growers, distributors, and retailers. 

If the price of fuel changes, it should be obvious that math can change. The change may be internal or external. That is an upward trend in the cost of fuel might result in less profit (price unchanged), or a corresponding upward change in price (profit unchanged), or a combination of the two. In this example, three entities each face the choice of absorbing a cost increase (decrease profit) or passing that increase to their respective customer (maintain profit). 

What few seem to consider, however, is that in any enterprise that engages human employees, workers' compensation is another of those costs (at this point some might suggest that agriculture is often excluded from workers' compensation, but for this example presume our grower is in a covered state). No difference from the payroll upon which the premium is based, or fuel cost, rent cost, equipment, taxes, and more. Those costs are all faced by each business (grower, distributor, retailer) in the chain that leads to the retail consumer. As workers' compensation premiums increase on any of those entities, the same choices of price and profit are faced. 

Note that this is a very simple example. Imagine instead that the ultimate product is a jet airliner. That may contain literally thousands of parts and components each produced by some initiating enterprise like the grower above. Parts are made and shipped to component producers; components are conglomerated from parts and shipped, small components become larger components, and ultimately they all combine to be the aircraft. For example, "The (Boeing) 737 . . . is made up of 367,000 parts" according to NBC News. And, it is likely that there were workers' compensation premiums included in the charges for each one of those parts. 

Returning though to our bag of peas, a state might collect sales tax when the retailer sells us that bag. If that sales tax is 5%, then the $3.00 bag of peas we purchase cost us $3.15. That $.15 is a "regressive" tax because it is the same tax regardless of the income of the purchaser. Whether I buy the peas or Warren Buffet buys the peas, the tax remains $.15. Thus, the lower the income or wealth of the purchaser, the more impactful that tax (notably, of course, some states do not charge sales tax on groceries, thank you Florida! But, some states do; and, this is an example in which the peas could as easily be ink pins, playing cards, thumbtacks, or any other item). 

Similarly, when the costs of inputs to the bag of corn change (equipment, fuel, seed, etc.) change, any resulting increase in the retail purchase price of the corn is likewise regressive. If fuel prices drive that $3.00 bag of corn up by $1.00, the impact is on the consumer, regardless of her or his wealth or income. And, considering the sales tax, the increase might be exacerbated (now $4.00 bag of corn, with tax is now $4.20 instead of the previous $3.15). Similarly, if workers' compensation rates increase that may impact the cost of grower, distributor, and retailer. That impact might be seen on the payroll of laborers, marketers, truck drivers, packagers, loaders, shelf-stockers, and more. 

Thus, workers' compensation directly impacts the price of product (or service) or profitability. Any price impact is likely to be regressive, affecting all product/service consumers identically in amount but disproportionately in effect. Ultimately the inclusion of COVID-19 in workers' compensation is likely to expand the risk/cost, and that cost will be integrated into the prices of goods and services. 

There is no doubt that federal action regarding COVID-19 like the unprecedented FMLA expansion, or broader-context state action may also be socialized. That, however, is more likely to be through the power of government to tax and spend. According to Investopedia, only 9 of 50 states do not have income taxes. Thus, COVID response outside of workers' compensation is more likely to be funded by income taxation, and by taxation (as a percentage of income) that is more likely progressive than regressive. 

Thus, any government response (national or state) is likely to impact the price of goods and services. The inclusion of COVID-19 in workers' compensation is predicted to be significant and perhaps more likely to result in a regressive effect more profoundly affecting the least affluent in American society. Similarly, the potential exists that the COVID-19 impact on employment opportunities might similarly be more pervasive in lower-wage positions.

Procedural Hurdles

A recent decision of the Texas Court of Appeals, Third District (Austin) provides important reminders for those who would represent themselves in legal proceedings. Much has been said, sometimes insultingly, about those who self-represent. This case was Davila v. Texas Mutual Insurance Company, NO. 03-19-00366-CV.  

The plaintiff, Rhonda Davila, filed a civil lawsuit against the insurance company that covered workers' compensation for her employer. The insurance company filed for summary judgment asserting that there was no evidence to support Ms. Davila's allegations. Ms. Davila unsuccessfully sought to then present evidence, to which the insurance company successfully objected. That evidence was thus not considered by the Court. Her lawsuit was concluded by the judge's dismissal decision. The appellate court affirmed the trial court's decision in all regards. 

The case began with a work-related back injury. The injured worker and the employer disagreed as to "the extent of her compensable injury," when "she reached maximum medical improvement (MMI)," and "her impairment rating." These are not uncommon disputes in workers' compensation. Those issues of relationship, recovery, and impairment are actually somewhat common. 

In the workers' compensation proceeding, Ms. Davila sought adjudication from an "administrative law judge (ALJ)" who concluded that her "compensable injury did not extend to or include" certain low back complaints. The Judge found she had reached MMI for her other (compensable) complaints and had a "0% impairment rating." In making such decisions, the judge relied on the opinions of medical experts. It is common in medicine for different doctors to have different opinions. That is not a reflection on any particular doctor, but instead is part of the very nature of opinions. Despite the tendency to view medicine as science, there are many areas therein of opinion and interpretation that are science-based but not actually science per se. 

After losing an appeal of the ALJ decision before a workers' compensation appeals panel, She filed the civil lawsuit that is the subject of the decision cited above. She sought to have the Court review the findings (conclusions about facts like the MMI date) of the ALJ and workers' compensation appeals panel. When the insurance company asked the Court to dismiss the challenge, Ms. Davila provided various documents ("exhibits A through J") in response. These documents were intended as evidence in support of her allegations, and also in opposition to the insurance company's request for dismissal. 

The insurance company objected to the exhibits. It argued the documents had not been authenticated (shown to be what they said they were), that they were hearsay (out of court statements submitted to prove those statements true). These are two of the most common trial objections to documents. Each has been discussed at various times on this blog. See Better Understanding the Hearsay Rule, Hearsay within Hearsay (March 2016), and Hearsay and Authenticity (March 2020). Of note, if these legal strictures were easy to understand neither I nor others would spend so much time writing about them. They are not simple sometimes and can challenge the best of litigation attorneys. They can likewise also challenge the pro se litigant who is likely experiencing them far less often. 

Notably, evidentiary objections are often raised in litigation. When they are raised (a party saying some document offered should not be considered), the other party (that wants them considered) is allowed to respond to the objection. In this instance, however, Ms. Davila "did not file a response to (the) . . . objections" regarding authenticity and hearsay. Later, at a hearing, she strove to rely on her contention that the documents were evidence in the ALJ proceeding. But, the court was not persuaded that the ALJ's acceptance of the documents rendered them admissible in the court proceeding. 

The court thus found Ms. Davila's arguments unpersuasive, and she saw her case dismissed. The appellate Court noted that she failed to provide legal arguments as to the admissibility of the documents beyond that they were admitted by the ALJ. The Court noted that her only substantive response was seemingly "she had 'tons of evidence.'” And, that also is likely reasonably common. In the paper world in which we live, there are medical bills, physician notes, receipts, off-work or activity restriction slips, payroll records, and so much more. Documents abound around us in our daily lives, and workers' compensation is no different. That one has documents does not make them admissible evidence though. 

The appellate Court explained that whether to admit Ms. Davila's documents was within the discretion of the trial judge. The Court noted that Ms. Davila "disagreed with the arguments of Texas Mutual," and with the decisions of the judge. But, it noted, she her arguments were "vague reference," and did not include "supporting argument" or legal authority to undermine the merits of the objections to her documents. In effect, she failed to provide legal arguments for the admissibility of her evidence or to cite to specific rules, statutes, or court decisions that supported those contentions. That failure started with not responding to the Texas Mutual motion to dismiss, and continued with her response at hearing being merely factual (these are those documents) instead of legal (this or that rule says the document should be evidence). 

That is what lawyers do. Lawyers, particularly litigators, have spent much of their time studying those very particular and detailed rules and statutes. They have studied how courts have interpreted those rules and statutes (authorities). They have striven to comprehend the sometimes subtle differences or distinctions between those authorities in various proceedings, contexts, and situations. Litigators specialize in evidence, whether to put theirs before the decision-maker or to prevent their opponents from such consideration.

The appellate court reminded that in its review it was limited to reviewing what occurred in the trial court. Issues cannot be addressed on appeal if those issues were not brought up in the trial court. Here, the appellate Court's phrase is instructive: "A party may not argue 'any and every new issue' she can think of on appeal." No, "by failing to raise complaints as to the merits of the trial court’s rulings on the objections," Ms. Davila "failed to preserve error for appeal." She did not object or adequately explain at the trial court hearing, and thus she waived her ability to appeal on that basis. This is called "preservation of error," and is another topic on which even the best attorneys are periodically stymied. 

It is important when multiple objections are raised (as the insurance company here raised both "hearsay" and "authenticity,") that the party seeking to admit evidence respond to each objection effectively. The Court concluded that in the light most favorable to Ms. Davila, she perhaps addressed hearsay. But, it noted, "she fails to address the other two objections." As she failed to address them, the Court concluded "the trial court could have sustained" the insurance company's objections to her evidence on those other grounds; the grounds she did not address and thus grounds which were "waived."

The lessons of Davila are pertinent for lawyers and pro se litigants alike. First, bring evidence (May 2013). Second, know the rules and statutes that govern the admission of evidence. Third, if multiple objections to evidence are made, respond to each and every objection. Finally, appellate courts are unlikely to address complaints (errors) that are not raised in the trial court. Appellate courts prefer that problems are solved in the trial courts when possible, and trial courts cannot very well address issues that are not raised and argued there. 

There is no reason that a person cannot represent her/himself in a proceeding. But, to do so, that person must invest the time to understand statutes, rules, and court decisions. Understanding those provides the foundation, the map, that will allow progress along the path that is litigation. Failure to understand that map may well result in a party or attorney ending up lost rather than reaching the intended destination. 

COVID-19 Again, a New Week

There have been a great many stories and posts written about COVID-19/Wuhan/SARS-CoV-2. Just last week, I tried to provide an overview of where we are in workers' compensation with COVID and Workers' Compensation (May 2020). That provides some information about legislative and regulatory reactions in Illinois, Kentucky, California, Michigan, Arkansas, Missouri, New Hampshire, New Mexico, North Dakota, and Washington (regulatory), as well as Alaska, Utah, Louisiana, Massachusetts, New York, Ohio, Pennsylvania, and Vermont (legislative changes or bill introductions), and strove to provide some reminders of the constitutional constructs (separation of powers) of our federalist system of government, a constitutional republic. 

That May 11, 2020 post predated a free webinar produced by Workers' Compensation Research Institute, hosted by its CEO Dr. John Ruser. That May 14, 2020 discussion was interesting and informative, and I was honored to participate. There were questions raised in the webinar, and in communications afterward, which bear further discussion. And, the evolution of COVID-19/Wuhan/SARS-CoV-2 reaction and litigation has continued in the meantime. States continue to engage the topic and struggle with change. 

One issue that arose is whether a "federal backstop" is needed to shore up the potential risks that the pandemic could bring to workers' compensation. The federal government started just such a program, originally called TRIA, in 2002 following the September 11, 2001, terrorist attacks on the U.S. It has since been reauthorized by Congress under the names TRIEA, TRIPRA, and TRIPRA 2015.

I noted in response to that inquiry that it has seemingly become increasingly difficult to attract Congress' attention to this backstop. There is some suggestion therefore that even if such a backstop were enabled in the wake of COVID-19/Wuhan/SARS-CoV-2, maintaining it, and reauthorizing it, might prove a difficult task as our memory of this virus fades (we hope it fades). See Federal Terrorism Backstop Re-authorization Now Seems Certain. 

I received correspondence from Peter Rousmaniere who retired from this community recently (after writing about it, and analyzing it, for decades). He is persuaded that a backstop is a probability but wonders aloud if it will be a COVID-19 backstop or a broader infection backstop applicable to future, as yet unknown, threats.

Mr. Rousemaniere also wonders if such a backstop would "require the insurers to pay claims." That is an intriguing thought. He posits that under TRIA and progeny, it may be possible for a worker to obtain benefits even if the event or ailment were not nominally covered by a particular state's workers' compensation law. He specifically noted the potential for post-traumatic stress disorder in that context, recognizing many states do not provide workers' compensation for mental-only claims of that nature. 

WorkCompCentral (subscription) reported on May 14, 2020, that some have doubts that a backstop is needed for virus claims. WorkersCompensation.com reported May 15, 2020, that a federal backstop is "not necessarily the best idea for dealing with COVID-19 and future pandemics," according to some community members. There is, frankly, a lack of consensus on this question. 

There was discussion on the webinar that what is or is not workers' compensation in this country is largely defined by legislators drawing boxes or lines that include some things and exclude others (such as mental-only claims, see above). That process can appear to some as haphazard or arbitrary. Some even make arguments about what is or is not "fair." I have noted that truth may be "in the eye of the beholder," see Who Ya Gonna Believe. It is possible that "fair" may likewise depend upon perspective and be differently viewed by various people.

One of the main themes of COVID and Workers' Compensation is that reaction to COVID is coming both legislatively and from the executive branch of state governments. In either scenario, the government is striving in those instances to alter the social contract which is workers' compensation. Any alteration, by definition, is change. Change may be good or bad, fair or unfair, based upon whether you are personally benefited or burdened. Any benefit created must have a corresponding detriment. Change brings gain and loss. 

The virus change has its roots in the foundation of workers' compensation. The birth of this statutory substitute for tort liability claims focused upon accidents that caused injury. The early days of workers' compensation were not about repetitive trauma or simple onset of symptoms in the workplace. The initial focus was on accidents that resulted in physical trauma. Systems were initially deemed unconstitutional, largely because of the liability without fault and the "taking" of property (of the employer) without due process.

Eventually, the courts perceived a "grand bargain" or balance of gain and loss. Everything that workers' compensation is today evolved from that foundation. Today, there are states that cover occupational disease (sometimes only the more obvious examples such as pneumoconiosis). The burdens of proof for such disease to be compensable are very tough in some jurisdictions, and much less so in others (Hawaii was mentioned in an article referenced in COVID and Workers' Compensation. Though there are complaints from various perspectives, it is likely that this balance remains critical. 

The recent legal discussions about change have not subsided either. Kansas was a state in which the Governor drafted a rule to create "a presumption of workers' comp benefits for first responders, health care employees and other essential workers," as reported by WorkCompCentral (subscription). Under that state's law, the State Attorney General plays a role in the adoption of executive branch rules. The Attorney General and other lawyers in Kansas seem to agree that such a change there requires legislative action. Thus, like the Illinois effort that was drafted, launched, and recalled all within 30 days, the Kansas rule effort may not have the legs to make the finish line as drafted.

This "who can react" struggle illustrates our constitutional government structure and separation of powers. Time will tell how the Kansas presumption conflict evolves. According to the Centers for Disease Control (CDC), Kansas has had about 7,886 COVID-19 diagnoses and 172 deaths thus far. With a population of about 3 million, the infection rate there is about .271% (7,886/3,000,000) and the death rate is about 0.006% (172/3,000,000). Those numbers will increase; however, it illustrates that a great deal of effort is underway in states that do not as yet have the kind of infection and death rates that are seen in states like New York, New Jersey, Massachusetts, Michigan, and Pennsylvania. 

Missouri was also in the news recently with discussion of a presumption. Nurse's COVID-19 Death Could Pave Way for Compensability, Despite No Presumption, WorkCompCentral (subscription) aptly recounts the story of a nurse who contracted COVID-19 and tragically passed away from the disease. The allegations are that nurses were not provided appropriate "personal protective equipment" ("PPE"). This story notes that Missouri's Governor created a presumption there for "firefighters, law enforcement officers, and emergency medical technicians," but did not include doctors or nurses. 

That distinction may lead simply to further discussion of where and how lines are drawn, and who is included and excluded. There are those who find such distinctions (excluding nurses) without merit, and who argue that a nurse is perhaps more likely to suffer exposure to such a virus in a workday than a police officer. Those arguments evoke emotions regarding equal protection of laws under our Constitution. However, the equal protection arguments may not be sufficient to change laws or perceptions. After all, the legislatures, in drawing lines, are necessarily going to include some things and exclude others. Is that perhaps simply part of the fabric that is social legislation? 

Despite the lack of a nurse presumption in Missouri, attorneys for this worker expressed confidence that her survivors will prevail in this claim nonetheless. They contend she was caring for an infected patient: "one of her patients started showing symptoms." They contend they will prove that she was exposed at work, and thus that her disease is compensable without any presumption. This story reminded me of an email I received from a physician last week after the WCRI webinar. I had mentioned that proving virus source in a case would be a challenge. 

Dr. David Dietz wrote and suggested that "there is individual genotyping that can possibly determine the chain of infection." Thus, by scientific examination of the virus with which the nurse was actually infected, and the virus of that one patient, there exists the potential to prove that the nurse's infection in fact occurred from that patient. This may be critical in the analysis of "arising out of" employment. See, Personal Comfort? Testing Compensability for discussion of "arising out of."

For a discussion of the potential challenges of such proof, see Florida Occupational Disease Burden, but remember the burden and law in Missouri may be completely different (each state has its own take on workers' compensation, a product of our federalist system). Anytime there is a discussion of experts and testing, there is the potential that proof will be expensive and perhaps time-consuming. When there is a blunt trauma (fall, struck by something) and there is a broken bone or laceration, the cause and effect can be a bit easier to both visualize and prove. Disease is harder to prove because it is potentially less apparent.

If the genotyping is successful, some may argue that only proves that the two of them suffered from the same particular viral process. But, does that prove that patient infected nurse as opposed to nurse infecting patient? Is it possible that the nurse was asymptomatic for some period and during that time the patient was infected? Can genotyping prove or disprove that progression as opposed to the converse progression from patient to nurse? The science and evidence will have to be carefully established and presented in such a case. 

And what if the genotyping cannot definitively tie that nurse's virus to that one particular patient's? That does not necessarily mean that her exposure did not occur at work. However, it may leave open the potential infection occurred elsewhere. That illustrates one of the greatest challenges of this COVID, a great many people may have it and never display (or experience) a symptom.

Thus, she might have theoretically contracted this from a coworker or another patient at work (asymptomatic). But, if that asymptomatic person is not identified (and tested), then the genotype testing to tie that person and thus infection to the workplace may not materialize. It may perhaps be impractical to begin a quest to test each person to whom she was exposed before catching the virus. As mentioned on the WCRI webinar, determining when and from whom one became infected may be quite a challenge. 

Keep in mind, that in a state with a rebuttable presumption of compensability for COVID-19, the struggle with identifying transmitters and tracing origin would nonetheless remain. The presumption does not change that proof, but merely changes who has the burden of proving. In the absence of the compensability presumption, the injured worker would have to prove who it came from and how that was in the course and scope of employment. With a presumption, the proof would be similar, but the employer would be liable unless it proved that connection to someone (some exposure) outside of the workplace.

The burden is difficult, and the science is potentially expensive. The challenges of identifying the transmitting source, in any event, may be difficult despite the availability of sophisticated science and expert witnesses. The policy-makers, in drawing those lines, decide who will face the challenge of proof. The burden of proof thereafter may influence who prevails and who does not. It is important to remember that various legislative or executive change is thus about redrawing those lines with resulting benefit and burden. The change, large or small, is within the encompassing "grand bargain" as conceived and heretofore evolved. 

The workers' compensation community is striving to keep us all informed. Just since March 2020, hundreds of COVID articles have been produced. Many webinars have striven to bring us perspective and knowledge. And, despite that effort, there is new data and news almost daily. Perhaps we just cannot keep up. There will be more on the subject coming soon. Stay tuned to @fljcc on Twitter and to this blog for updates on that effort.

Stay in Your Lane

On May 7, 2020 the Supreme Court of the United States (SCOTUS) rendered an intriguing decision in United States v. Sineneng-Smith, No. 19–67. Justice Ginsberg wrote for the unanimous court. Justice Thomas authored a concurrence dealing mainly with the substantive issue in the case, the "overbreadth doctrine." The Court's opinion, however, focused on the procedural history of the case, a review of a decision of the Ninth Circuit Court of Appeals. That procedural discussion applies to all adjudicators, an apt reminder of role and purpose. 

The Ninth Circuit opinion under review was authored by A. Wallace Tashima (Clinton nominee), and joined by Marsha S. Berzon (Clinton nominee), and Andrew D. Hurwitz (Obama nominee). Judge Huriwitz came to the case late, being assigned by random drawing following the death of Judge Reinhardt. There are those who find the history and appointment of judges interesting; In that regard, it is notable that the SCOTUS decision in this case was unanimous in finding fault with the Circuit panel's foray into advocacy. 

The defendant in this criminal case, Evelyn Sineneng-Smith, provided "consulting" to immigrants in California. The Court noted that a jury convicted her of violating a federal law that prohibited anyone to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States . . . ." The Court noted that she charged clients $5,900 each (over $3.3 million total) to complete/submit immigration applications, although she "knew her clients did not meet the application-filing deadline." The applications were thus destined for denial when filed.

Following her conviction, she sought review by the Ninth Circuit. There, she argued that such applications were "often approved despite expiration," and that such applications "would place her clients in line should Congress reactivate the dispensation" (in case the law changes). She also proferred other legal arguments in favor of the reversal of her conviction.

The Circuit Court then "moved" her case "onto a different track." The SCOTUS described that "instead of adjudicating the case presented by the parties, the appeals court" raised "a question Sineneng-Smith herself never raised," a First Amendment overbreadth argument, and invited three organizations (not parties to the litigation) to join the litigation to address this new question. Forbes recently noted that a federal trial court seemingly pursued the same course in yet another case. There is some perception that advocacy is a recurrent judicial theme. 

The SCOTUS in Sineneng-Smith held "that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion." It directed the Ninth Circuit to consider the appeal again (on remand) "attuned to the case shaped by the parties rather than the case designed by the appeals panel." (Emphasis added). The use of the word "designed" seems particular and pointed. 

The SCOTUS explained that "party presentation" means adjudicators "rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” There is a narrow exception acknowledged when a criminal party is unrepresented, and a court may in that setting "recast pro se litigants’ motions to 'avoid an unnecessary dismissal.'" However, the "general rule" is that parties "know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.” 

Quoting Justice Scalia, Justice Ginsberg reminded that “[C]ourts are essentially passive instruments of government.” Furthermore, quoting United States v. Samuels, 808 F. 2d 1298, 1301 (CA 8 1987), Courts: 

“do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” 

That does not mean judges can never engage the parties, it is a discretionary decision. A court can provide a modicum of direction. However, the SCOTUS noted that United States v. Sineneng-Smith "scarcely fits that bill."

The SCOTUS acknowledges its own history of calling "for supplemental briefing" and in which it "appointed amicus curiae in recent years." In other words, the SCOTUS has taken the reigns on occasion. However, it noted that none of those cases "bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case." Some will perhaps perceive some level of "do as I say not as I do" in that admission and conclusion.

In this case, the SCOTUS essentially concluded that the Circuit Court designed and constructed a First Amendment argument, invited in the "friends of the court" (amicus) to brief that question, and "Sineneng-Smith’s counsel adopted without elaboration counsel for amici’s overbreadth (1st Amendment) arguments." 

Justice Ginsberg acknowledged the defendant's dilemma, noting "how could she (Sineneng-Smith) do otherwise?" The defendant was in search of reversal of her conviction, thus in pursuit of a goal. All litigants, civil and criminal, likewise seek to prevail in court. When the adjudicator defines the path, and signals the way, it is likely the litigants will follow that path to maximize the chance of persuading that authority and prevailing. The Court noted here that Sineneng-Smith "rode with an argument suggested by the panel." Her original appellate issues "fell by the wayside" because the defendant's filed appellate issues simply "did not mesh with the panel’s overbreadth theory." In essence, the party that wishes to prevail will follow the Court's lead and conform to expressed pre-conceptions or conclusions (which should not exist with an unbiased and appropriate court). 

The SCOTUS' language is somewhat blunt. It noted that "no extraordinary circumstances justified the panel’s takeover of the appeal." (Emphasis added). The "takeover," Justice Ginserg noted, was not only beyond what was raised by the defendant in the trial, but actually contrary to it. The defendant had not raised overbreadth. 

Furthermore, notably, the opinion adds that the SCOTUS "has repeatedly warned" that overbreadth should be sparingly applied. Thus, the appellate court not only designed its own approach but did so with a theory the SCOTUS has said should be narrowly applied. In this vein, both the opinion and Justice Thomas' concurrence suggest some broader doubt as to the future of the overbreadth doctrine generally, see more below. 

A court providing some direction or suggestion is not, apparently, per se offensive. The SCOTUS explained that a court may appropriately infer arguments, that it "is not hidebound by the precise arguments of counsel." However, "the Ninth Circuit’s radical transformation of this case goes well beyond the pale." Such guidance (or lack thereof) is perhaps destined to leave the process habitually in a state of grey, with various litigants appreciating an adjudicator's weighty cooperation and others lamenting their struggle against the opponent and bench. For the layperson, one suspects that bright lines and clear parameters are more predictable and understandable than nuance and grey areas. 

Justice Thomas specially concurred in the opinion. His concurrence is critical of the appellate court's design and takeover of the defendant's case. However, his opinion focuses primarily on the overbreadth doctrine itself and his reservations concerning it. He explains that the overbreadth 

"doctrine provides that a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged' in relation to the statute’s plainly legitimate sweep.’” 

He describes and decries the source of this doctrine (saying it "lacks any basis in the Constitution’s text"), the appropriateness of its application ("violates the usual standard for facial challenges, and contravenes traditional standing principles"), and advocates for therefore "revisiting this doctrine in an appropriate case." One wonders how this was not "an appropriate case" for just such a consideration? Well, perhaps in that this issue, in this case, was manufactured and constructed by the appellate court in hindsight. 

Addressing the Circuit Court's "Abuse of discretion" (its design and takeover) in this matter, he notes that 

“[U]nder our constitutional system[,] courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” 

Therefore "when a court . . . seeks out—an overbreadth challenge, it casts aside the 'judicial restraint' necessary to avoid 'premature' and 'unnecessary pronouncement[s] on constitutional issues.'" He mentions "the general rule against third-party standing," which is based on the converse that standing (a real and personal interest in the case) is required of litigants. This is part and parcel of the Constitutional restriction of "federal courts to actual cases and controversies.” The concurring decision may be seen by some as a harbinger of future narrowing of the overbreadth doctrine application in American jurisprudence. 

The activism admonition in Sineneng-Smith should be no different for a trial judge. It is for the parties to build their respective cases, develop their evidence, and present claims and defenses. Dan Fogelberg wrote Hard to Say in 1981; among its lyrics "It's never easy, And it's never clear, Who's to navigate, And who's to steer." But in the world of litigation, it is in fact both easy and clear. The parties to the case are to do both. 

The judge's job is neither to substitute her/his judgment for the parties in that regard, to Alexander Haig and simply seize control. Notably, the SCOTUS here was less than absolute in its condemnation, declaring that the takeover in this case was inappropriate while acknowledging that some level of meddling in the right circumstances may instead be acceptable, the grey area. The trial judge's job is nonetheless to keep the game within the rules. It is suggested that a better trial judge rule should be more definite in never designing the parties' litigation. As SCOTUS Chief Justice Roberts once reminded, "nobody ever went to a ball game to see the umpire," see To Do Equal Right. 

Judges afford due process. They are charged with evaluating the allegations and legal interpretations brought by the litigants. Those litigants will periodically be creative, and elect arguments that are novel and uncharted. Those litigants will make choices regarding what evidence and what argument to supply. These are often conscious tactical choices, but at times decisions may be less sentient. In either event, they are the parties' choices and the litigation is ultimately the parties'. It is not the judge's role to make up for a particular party or lawyer's shortcomings in either design or execution. The umpire does not suggest the next pitch, nor otherwise counsel the pitcher. The umpire watches the pitch and makes the call. 

The Judge's job is to comprehend and weigh the arguments presented, not to disregard the parties and substitute her or his own theories or arguments. It should come as no surprise that a judge's own theory or argument may be deemed more attractive or persuasive by that judge. Everyone, universally, likes their own ideas. When judges step outside the role of arbiter, that threatens our system of justice. When courts are perceived as advocates instead of neutral arbiters, the public faith in an independent judiciary suffers. When courts or adjudicators contrive doctrines, public faith in the adjudicator and the justice system may likewise falter. 

Though greeted with little fanfare, United States v. Sineneng-Smith is an important, unanimous, reminder of the role of our adjudication process. It should be a reminder of the critical and venerated role of judges and courts.