In May, the Florida First District Court rendered an interesting and instructive decision in Ford Motor Credit Co., LLC v. Parks, 1D21-1130. It is not a workers' compensation case, but illustrates a challenge for the litigation process in our age of scanned and uploaded documents. The workers' compensation litigation process is often replete with medical records, employment records, and more.
The legibility of documents is potentially a critical part of any workers' compensation proceeding and thus the Court's opinion should be of interest. In a nutshell, if the document cannot be read, what does it prove? In that context, perhaps it bears changing the inquiry to cannot be read by the finder of fact (Judge or jury). In other words, just because you can read it perhaps does not mean I can read it. Additionally, as critically, However, some will likely conclude that the case is about more than legibility per se.
The matter centers largely on "the fine print in an electronically filed copy of the two-page motor vehicle lease agreement." The Court noted that Ford alleged payments were not made, and that the trial court concluded that the defendant borrower prevailed, solely because "the trial court deemed the electronically filed lease agreement to be 'illegible.'” Thus, in the eyes of the beholder, the trial court, the document was not readable and thus the claim not supported.
The appellant (Ford) explained on appeal that no issue of "legibility was made at trial." Furthermore, it complained that the trial court did not "indicate that it found the subject lease agreement to be illegible” and “did not provide [Ford] with an opportunity to reply with a ‘more legible copy’ of the subject contract.” This is really two points. But, when many pages are uploaded and then marked as evidence, it is not reasonable for counsel to think that the judge or jury is going to preview documents and provide feedback. This is true in the example of legibility, but also applies to completeness (just because you intended to upload all 112 pages of medical records does not assure that you actually scanned that many pages).
The Court was not persuaded by those complaints that the trial court did not provide feedback or that the legibility was not raised at trial.\. It noted that even when the trial judge raises an issue in the final order, a party can "seek a new trial." A party in such instances should seek rehearing at a minimum (and the Court explained such a motion in these circumstances would be treated as a motion for new trial). A concurring opinion suggests that a new trial would not have been the appropriate remedy, but a rehearing would have been since Ford "was blindsided by the judgment."
Despite the divergence in that regard (new trial/rehearing), there is nonetheless agreement that seeking rehearing would be appropriate. That process allows the trial judge an opportunity to appreciate the position that a party might potentially raise on appeal and to possibly correct any such deficiencies, without the need for and expense of appeal. For workers' compensation litigation, the rehearing provisions are limited, as described in Rule 60Q6.122, but always bear consideration. Because Ford did not seek a new trial or rehearing, the Court concluded it could not "complain that it lacked an opportunity to clear up the matter prior to appealing."
The Court also pointed out that after Ford filed its appeal, it then filed "a legible copy of the lease agreement in the trial court." This was "pointless because the trial judge had lost jurisdiction at that point." The time for a party to check legibility is after it has obtained documents for trial, after they have been scanned, and again after those scans are uploaded. While the upload seems to conclude the preparation steps, viewing the online results critically should be the ultimate step. One does not shop, chop, sauté, and season a dish according to recipe and then elect not to taste the dish before serving.
The Court reminded that the trial judge might have asked for a legible copy, but that it was Ford's responsibility to "ensure that filed documents are legible." Though this responsibility is clearly upon the parties, the Court did note that the trial judge, "as a practical matter," should have assured that evidentiary documents are "legible because scarce judicial resources expended on a public trial might otherwise go to waste if meritorious cases are dismissed on easily correctible grounds." In this vein, it noted that the same would be true of missing documents, pages, etc. This is a reminder, essentially, that cases should be decided on their merits. If a deficiency is found, perhaps a short reconvene to discuss with the parties would benefit everyone?
The Court next turned to precisely that practicality, regarding the "totality of the record evidence." Ford agued that the evidence supported "its entitlement to a money judgment in its favor." The Court agreed, after an interesting discussion of whether an appellate court could appropriately "substitute its judgment as to a document’s legibility for that of the trial court." It noted that this is a question scarcely addressed, and it concluded that "the pertinent inquiry is whether the relevant portions of the electronically filed lease agreement are decipherable, even if not perfectly legible, with readily available computer magnification." This has some parallel to the conclusions of witness credibility perhaps. See Credibility (March 2022); The Chair of Truth (February 2018), and Credibility Lessons (August 2021).
The Court concluded that this agreement was in fact decipherable in material part. Those parts were "sufficient evidence to establish Ford’s contractual basis for its claim of default." And, the published opinion includes images of the document in question. The use of demonstratives in opinions is a seeming trend, and implications in our world of evidence are interesting. See Ford v. Boynton (August 2021).
In the concurring opinion in Parks, one of the judges noted the "challenges in small claim cases like this one." This is in part due to a party being pro-se, and thus some sentiment of extra care. This notes that the judge "must honor the corporation’s entitlement to prove its case for contract damages," and may also "feel() a gentle tug toward a flexible application of the rules so the individual may participate fully." This is often a consideration with unrepresented parties in workers' compensation matters. As the concurrence reminds, the trial judge "certainly has leeway to strike the right procedural balance" under the small claims rules. That leeway is perhaps less apparent in the workers' compensation process. However, the point is that the pro se litigant can be a challenge; this litigation process is likely alien to them, and replete with rules, hurdles, and concepts that are difficult to comprehend.
The concurring opinion also meticulously discusses the potential for perils in the electronic filing process, particularly when originals are not in a standard 8.5 x 11 inch size easily amenable to fitting a page. It notes that:
"In this brave new world, if a trial court is going to require parties to put on documentary “evidence” by electronic filing rather than the old fashioned way, it will have to be sensitive to the potential shortcomings of digital exhibits. In those instances, the court should work transparently to accommodate those shortcomings when they manifest themselves, an unreadable PDF being but one example."
The key takeaways there for the trial judge are patent and simple, "transparency" and "accommodation." Put simply, the parties have responsibility for the clarity of the evidence and record, but to some extent that responsibility is shared by the trial judge, in the interest of judicial economy. Thus, when the trial judge finds an exhibit page missing or illegible while drafting an order, perhaps the best default is a quick hearing with the parties to describe the discovery and collaborate on whether or how it might be ameliorated. Even if the outcome is "that is the best copy there is," that is likely a worthwhile conversation. Discussion of such a problem, and input from the parties, might avoid the time and expense of appellate review. The concurring opinion also includes a fascinating recitation of various contract laws, and is worth reading (The Court has often noted that interpretation of workers' compensation settlements often include issues settled by contract law).
