Early in my legal career, a wise lawyer taught me to begin every prayer for relief by citing a rule, statute, or precedent. The instruction was simple, and it served me well through years of practice. The point is to afford the judge a viable reason to rule in your favor. Similarly, I applied the notion to my service on the bench. That is, I sought guidance from the parties when they pursued relief. If they did not cite authority, I would try to ask them for it. As the practice evolved away from live motion hearings, and into a more paper-intensive motion practice, that became more difficult.
As a judge, I continue to believe that it is the parties' obligation to frame their arguments, cite their authority, and provide their evidence. It should not be the judge's responsibility to supplement arguments, to make assumptions about facts that have not been proven, or to research authority that might support someone’s deficient presentation. It should be the party's responsibility and burden to define the dispute and to describe to the judge both how that party should prevail and how it is practical.
In this regard, Worker’s Compensation is perhaps better framed than other legal concepts. The American legal system is built upon the English premise of common law. The judicial branch has constitutional authorities which are inherent and broad. There is a generalized foundation often set forth in constitutional parameters regarding the overarching need that any wrong must be potentially grounds for recovery. Those in the constitutional court process are frequently challenged with the presentation of some loss or wrong, and the absence of any clear relief therefore. It can be a struggle to fashion remedy(ies) in that setting.
Workers compensation is not part of the common law. In fact, it surprises most audiences to learn that workers' compensation as a theory and practice predates the common law, significantly. The concept of compensating someone for a work injury pursue it to some pre-defined or pre-characterized schedule of relief date back at least to Hammurabi and his code. That was about 1,795 years before Christ (B.C.). The Common Law by comparison is a product of the Middle Ages (between the 13th and 15th centuries).
Modern workers' compensation in America comes as a substitute for the common law. As it is said workers' compensation statutes thus “abrogate the Common Law,“ and common law rights and responsibilities. Although it might be argued that the Common Law contradicted those previous codes, the statutory Worker’s Compensation benefits are a substitute for, an “instead of," common law damages. Therefore, the benefits to which an injured worker is entitled, the defenses which the employer may avail itself of, are in the Worker’s Compensation statute.
Returning to the conceptualization of the parties' obligations set forth above, this means that any benefit that is sought by an injured worker should be able to literally point to in the applicable Worker’s Compensation statute. The same is true for many defenses that the employer might raise to such responsibility. Of course, the potential remains for a defense that cannot be found in the statute, literally that the statute does not contain or support a claim for such benefit.
Both the benefits and the burdens are set forth in the code, for all to see. Over time, that construct has admittedly eroded. Constitutional courts and regulators have implied the entitlement to certain benefits not necessarily named, but ancillary to specific benefits or categories. Through interpretations and implications, these appellate decisions have recognized benefit entitlement that may not be clearly stated in the statute or regulation. But, the fact remains that anyone seeking a benefit should be able to identify what statute, rule, or precedent (those court decisions) either identify the particular benefit or at least illustrate a foundation, a path, to award such benefit.
There is the potential in such a statutory construct that some party might find a particular claim or defense to be too broad or too narrow for a specific set of presented circumstances. These are the “outliers,” that may be inevitable in a statutory construct. Unless a statute continues to grow with amendment after amendment, each focused upon “correcting” some outlier occurrence, there will likely always remain outcomes to which some party or group might point and lament. That is, instances in which benefits are due or not due under the statute, but in which some perspective perceives a lack of fairness or appropriateness.
Another important element of this kind of discussion is that the statute in effect on the day a particular employee is injured is usually the statute that will control the quantum of benefits and the defenses that apply. It is critical in many contexts that one knows which version of a jurisdiction's Worker’s Compensation law is being applied. This has persistently been a challenge with appellate courts, and a variety of instances have been described in which a court decision reaches an outcome, generally cites a statutory authority, but fails to identify the year of the statute applied. Too often the question is raised “What statute was the court applying?” Before being too hard on appellate bodies, the fact is that trial judges, attorneys, and parties similarly fail to be specific periodically as well.
These are challenges for the parties. Just as it is their obligation to frame, plead, and prove their issues, it is also highly advisable that they identify and stress the year of the statute to which each points for authority. If one wishes to prevail in litigation, such preparation, specificity, and reiteration will be supportive of success. It is important to identify what supports the outcome sought, including the statute section and version.
Specifically the word “supports“ is selected, because there are no guarantees of success. Doing a good job does not always equal prevailing. A funny illustration of this is the quote of Judge Chamberlain Haller in My Cousin Vinny (1992). The movie's hero has struggled throughout with protocol, procedure, and process. Eventually, he shines with an outstanding legal objection:
Judge Chamberlain Haller: That is a lucid, intelligent, well thought-out objection.
Vinny Gambini: Thank you, Your Honor.
Judge Chamberlain Haller: [firm tone] Overruled.
The point is, that citing authority is not a guarantee of success. However, doing a good job certainly enhances one’s chances, as it is effective in steering the judge toward the outcome for which you advocate. It might be said that while identifying the authority does not guarantee success, it most certainly enhances the chances of it.
Despite that, a great many motions are filed and arguments made without any citation to authority. Many times, a lawyer has intoned the argument that "the courts have repeatedly held" or that "the decisions supporting this are numerous." But, when asked to provide one such decision, one statutory citation, or one regulation/rule, the party cannot. It is not impossible to prevail without such authority, but it may well be more difficult. The path to success will likely be more direct and more attainable if the party frames, pleads, and proves their issue(s).
