Imaginative Engagement

The challenges and tribulations of professionalism in the practice of law, and specifically in the Worker’s Compensation community, have been in the fore lately. There has been much discussion of the separation that came through the advent of technology, exacerbated and leveraged by SARS-CoV-2. In no way trivializing the great human suffering of the pandemic, it is possible one of its most lasting human effects will be societally and socially on the way we interact.

There is growing recognition that the workplace of yesteryear had deep social and interactive benefits. The British Broadcasting Corporation (BBC) recently noted that "for older generations, work was the sole place of connection." The virtuality of the pandemic reaction is seen as impacting us all in terms of social interaction, with a particular emphasis on the young. The article concludes that "without offices, young people have to get clever about making friends."

Making friends is a challenge in any setting. Many struggle with the social interactions that society deems normal or expected. And, the BBC features young people who conclude that their pandemic isolation fueled feelings of being "anti-social." They lost human contact, and it seems, simply became accustomed to their isolation and lack of contact. Generation Z members who had been "very sociable" simply lost focus on "cultivating relationships," and became reticent or resistant to meeting new people. There was some degree of emotional discouragement regarding the social environment.

I am persistently hearing anecdotes of people whose "interactions" are long distance. One fellow "boomer" lamented recently that a family member's sole engagements with others in the same age group are through social media. The only "friends" are names on a feed, pictures on a "wall," and none are within even a reasonable day's drive. There is engagement there, but there is a perceived faux nature and persistent disconnect. There is nothing like being there.

Various bar leaders approached me last year regarding their perceptions of the challenges of professionalism in the practice of law. We strove to meet in October, but our nemesis Ian intervened. However, since mid-November we have been trying to brainstorm some ideas for moving the ball forward in terms of professionalism and the practice of workers' compensation law. There is enthusiasm, and in some instances perhaps we find ourselves struggling to keep pace with the efforts.

The outgrowths of this have been multifaceted. I think the most effective progress has come at the hands of the Section and the OJCC, though many are contributing.

Phillip Augustine, the current Section Chair, is striving to bring back the Town Hall setting for discussions and interaction. There was one last week, and two more are already on the agenda for this spring:

• February 21, Workers’ Compensation Section Town Hall (Case, Hedler, Sancerni), ZOOM
• March 10, Workers’ Compensation Section Town Hall (Anderson, Grindal, Moneyham), ZOOM
• May 16, Workers’ Compensation Section Town Hall (Kerr, Young, Pitts), ZOOM

These are exceptional opportunities to connect with the community, see some familiar faces, gain some insight, and ask some questions. If you have thoughts on making the programming better, contact Mr. Augustine. If you see him, thank him for making these real.

The Chair-Elect, Paolo Longo is already engaged in his upcoming term as Chair. He has launched an in-person adjunct to the Town Hall. These are bring-your-own lunch meetings that focus on small-table interaction with a variety of judges in a particular district. The first was in Orlando in December. The next is April 5 at the Jacksonville District office. I am honored to have been included in that gathering. These are more intimate, interpersonal, and may require us to get out of our shells a bit more than the Town Hall. But, in-person is a great alternative.

These lunches are being planned in other cities. The intent is to gather the bench and bar. The benefit is in the collaboration, commiseration, and collegiality. Stay tuned for more such opportunities to come. If you want to help one happen in your geography, contact Paolo and volunteer to make a difference.

Also in April, we will be at the Forum in Orlando. That will be a two-day opportunity for education, communication, and interaction. There will be bread to break, stories to recount, and catching up to catch up. Some of it may seem distracting, non-billable, non-income producing. Your perceptions are not wrong. It is intended to be a step back, a social environment. There is value in the education, but more in the interactions. Let's take a selfie together there?

In May, the OJCC will offer the first Work Comp Academy. This is focused on the next generation. We will gather in Orlando (recurring theme?) to present the nuts and bolts of practice for those who will soon enough inherit it. This practice and community is losing the old and greying at an epic pace. As we fade from the scene, who will step forward? That is the target audience as we launch this in-person initiative for increased knowledge, experience, and interaction. The response to this has been overwhelming and a second iteration will occur in Tampa in October (an event not in Orlando!).

There is always enthusiasm for the Inns of Court. There is praise for the Miami district “meet the judges.“ There is grateful recognition of the participation in programs with the Worker’s Compensation section, the WCI, and beyond. The program the OJCC and WCI produced last week in Tallahassee was phenomenal. There are opportunities in every geography, community, and population. The effort is being made to put the water out there. The leaders are leading you there. Will you drink it?

The professionalism panel moderator, starting the last panel of the day in Tallahassee, noted some chilling facts. This profession we have chosen is persistently among the most lonely. It ain't just the Generation Zs mentioned above. Loneliness and isolation are endemic. The practice of law is stressful, energy-sapping, and at times frustrating. We toil here and too often see little progress, unsatisfying results, and frustration. I talked with a millenial lawyer last week that laments the level of satisfaction from this work, and expressed a desire to be a car mechanic instead. Recognize it, talk about it, and let's somehow begin to remedy it.

There is, to be blunt, a tremendous amount of effort being expended in the interest of professionalism. That effort is, however, admittedly sporadic, diverse, and perhaps too easy to overlook. As we turn our eye to professionalism, we truly miss the boat if we fail to acknowledge the various efforts of so many in both bench and bar. Let us not forget their efforts, their initiatives, and their enthusiasm.

We can complain about our challenges and their impacts on us. Or, we can strive to make the practice, the community, better. We can move mountains if we begin by “carrying away small stones.” You do not have to plan a Town Hall, just attend one. You need not coordinate a lunch gathering, just attend one. Attend the forum, meet someone new, and tell your friends. You can make a difference through your decision to engage in these opportunities. Or, you might make a bigger difference by putting forward your ideas for some other engagement opportunity. If you have an idea, say so.

We are resolved that professionalism is a concern. We are convinced that human contact is a critical element. We are enthused at the consensus of hope. We are eager to begin a conversation. We are in need of your contribution, participation, and inspiration. How will you contribute to this conversation? How will you leave this community better than it found you? Figure it out, get in the game, and call or write if I can support you in any way in that effort.

A Great Day of Collegiality

Another OJCC winter seminar is behind us. Over one hundred lawyers, risk professionals, and more gathered at the Florida First District Court last week for a series of panel discussions focused upon the challenges of moving a case through the Florida litigation process. Titled Sharpening and Adding to the Tools in Your Trial Toolbox, this afforded insight into the process and the perceptions of those who participate within it. Friday was an exceptional opportunity for personal growth and education.

Some perceived or misperceived that one of the judges suggested attorneys should "sandbag" or hold out on the opposition in a case. That was not the intent of that comment. Fortunately, various other presenters returned to this point throughout the day and hopefully tempered that unfortunate perception, which I am sure was not intended. Certainly, it is the attorney's and party's obligation to respond to discovery, to be forthcoming, and to strive for the resolution of issues and claims. It is not appropriate or professional to withhold evidence or to strive to surprise an opponent at trial.

From the panel discussion of the pre-petition process, petitions, responses, and discovery, we gained significant insight into the potential for challenges. The communication and careful preparation in that time period has a fundamental and imperative impact on the probable course of the litigation. The early days, the gathering of information, and careful communication can set the stage for all that follows. The one point that I would have been more emphatic upon is the simple note of Rule 60Q6.115 - the motion is our best tool for seeking judicial intervention in a case.

The mediation panel was interesting and at moments humorous. It is always fortunate when presentations include some moments of levity and that also adds to the probability of retaining information for later use. There was one joke that some perceived as a bit off-color regarding man and wife or woman and husband. Some perceived misogyny. There was no intention to offend or to cause discomfort with that reference, and I apologize to any who were troubled by that reference.

Despite that unfortunate illustration, the message intended was valuable. We make mistakes in the process of conciliation and compromise when we use inflammatory invective. The point of a dispute can be aptly conveyed and strengths and weaknesses addressed without insult, accusation, and offense. When the listener is offended, it may be hard to move them toward compromise and agreement. When the listener is offended by your analogy, they may discount your point or even stop listening. 

The panel addressing pretrial stipulations and trial memoranda was focused on its advocacy regarding the importance of these two documents. It supported some of the earlier panel conclusions and assertions. Of particular note, there is a strong potential that these two documents will be all that your judge has read prior to trial. These are an opportunity to tell your story, prepare the judge for your evidence, and to be effective litigators.

Among the more pertinent points regarding pretrials was the advice to start the process early. There was advice to be focused on this form informally even in the initial review of the case or intake of the client. The witnesses, the critical facts, and the documents that will likely be important to disclose may well be apparent at those early stages. Building the disclosure as the information is gleaned will prepare for that ultimate disclosure in a busy practice.

There is a concept with the trial memoranda that I refer to in teaching college as the "baby bear" paradigm. Any trial memoranda may be "too brief or "too long," just as the porridge may be "too hot" or "too cold." The critical point is to convey what is important in the case so that the judge is prepared to hear the case. The trial memoranda should be "just right," and what that means depends on the case. But, adjectives to consider are "complete," "thorough," "succinct," "organized," and "informative." There are perceptions that the memo is not always effectively engaged to full advantage.

The reality of the twenty-first century was one of the critical points of the "workers' compensation trial." Technology is upon us and it impacts our preparation for litigation through video depositions, less interpersonal interaction overall, and the potential for remote hearings. The three judges on this panel provided insight into some of the challenges that are probable in such settings, while also recognizing that video is not an eventuality.

Today, lawyers and parties must be aware of the potential for live trials, video trials, and the "hybrid" that lies in between. Each has its own challenges and possible tribulations. Some critical points included communication between the parties in preparation, not losing sight of the potential for technology shortcomings or failures, and patience. The key message that seemed to recur was one of cooperation and communication between all involved.

The appellate panel was enlightening and entertaining. There was the reiteration of much that lawyers knew or suspected. But, there were also some critical thoughts that every system participant should really ponder. Of particular note, is the criticality of a motion for rehearing. In this era, it is very important to seek rehearing so that claimed errors may be considered by the JCC. Failing to file for rehearing may be fatal to the appeal. And, appellate counsel should be engaged in preparing for that process. The appeal decision should likely be part of the first reading of a trial order; time is limited.

Another imperative point of this panel was the challenge of determining what is or is not a final order. This included the necessary language to include in a non-final order that may nonetheless allow appellate review. There remains doubt regarding finality in some settings, and careful counsel would be well advised to understand both the challenges of defining "final" and the tips for handling doubt or uncertainty in that regard.

The day concluded with professionalism. That topic is a recurring theme in workers' compensation. In 2022-23, it has been a recurring theme as we discuss many aspects of this challenging practice. The panel was outstanding, and unfortunately, a fair number of folks opted instead for an early departure. Of course, avoidance of Friday afternoon traffic and long distances home contribute to that. But, they really missed a great discussion.

The Florida Bar Center for Professionalism provided some insight into the challenges that we all face. The truth is that the litigation process is often lonely, stressful, and personally challenging. That was, of course, not news to anyone in the room. However, it was a poignant reminder of why professionalism can be hard. The panel brought together some of the points that had been made throughout the day as regards our challenges, the nature of litigation, and our involvement.

The greatest challenge facing workers' compensation litigation is likely professionalism. We are in an increasingly connected world that is anachronistically less and less personal. Though communication is easier, our connections to one another are perhaps harder. This is impacting us personally and professionally. This reminder was important, and the panel's perspective brought an ideal close to the long day of discussions.

A small contingent remained for the courthouse tours and the balcony reception. There were opportunities for reflection on the outstanding presentations, and for sharing perspectives. The day was a sound investment in two critical ways: knowledge and collegiality. As important as the education was, the in-person gathering, conversating, and reconnecting were equally compelling.

I am grateful to the many that took the time to engage with us, and to be a part of this community. I am particularly grateful for Judge Moneyham's labor and organization in planning and producing this outstanding program. And, a hearty thank you to the many speakers who prepared these topics, provided insight, and answered difficult questions. Those speakers moved the proverbial ball and delivered tools, tips, and knowledge. We are very grateful to the First District for its persistent support, its outstanding facility, and the participation of its judges. Finally, we are thankful to the Workers' Compensation Institute and their team for the outstanding support and sponsorship of this annual event. The WCI has supported this program for a dozen years and we could not do it without them.

The preparations for 2024 will soon begin. If you have topic or speaker suggestions, you may email david.langham@doah.state.fl.us or call at your convenience. If you have questions or comments regarding the program, I am at your disposal.

The Point

I was fortunate to attend a virtual Work Comp College event this week. The College was founded in 2022 with the goal of developing and deploying educational programming for workers' compensation professionals. My perception was initially that it was intended for claims and risk management professionals, but the event this week was attended by a broader spectrum of community roles: risk management, medical care, regulators, and more. 

The Web gathering included some discussion of the College itself but rapidly evolved into a discussion focused upon the challenges of recruiting and retaining talent in this community. One participant noted a perception that workers' compensation long ago began struggling with recruiting new talent. The conclusion voiced was that instead community members essentially elected to recruit talent from each other, labeled "stealing" team members from other entities. The urgency of recruiting today, according to that commenter, results from retirements and departures leaving too little talent left to go around. 

There was a discussion of the way in which the world perceives workers' compensation. One reiterated that most, or perhaps all, of us "fell into" workers' compensation. That refrain is not new, and frankly has some truth to it. I have yet to meet anyone that grew up dreaming of being in this industry. A conversation was recounted of a young professional questioned whether he/she would follow a parent's path and join this workers' compensation community. The young person's response was rapid, negative, and certain. No.

This turned the discussion to thoughts on the absence of workers' compensation exposure and focus in higher education. Some echoed their perception that ongoing education opportunities also seemed elusive, particularly as to the theory of these systems and both the operations and implications. The conversation returned to how workers' compensation is perceived, and the young person mentioned above. It was suggested that there is a belief that this community is about shuffling papers, filling in forms, and juggling priorities. There is some truth to that. But, the suggestion was that instead, the community should stress that it is "restoring broken and shattered lives."

As the focus turned back to higher and ongoing education, there was suggestion that perhaps the best place to recruit talent is from the coffee shop or other service-sector jobs. The implication being that personal skills are important. There is no doubt that people skills matter. 

One commenter suggested that the solution to replacing team members in this community would be to simply waive or eliminate education and licensing requirements. She suggested that such education parameters are discriminatory and preclude entry (lockout) of a population of potential staff and support. While there is some truth to the fact that qualifications may preclude some prospects, there are also good reasons for skills, training, and education. The idea of eliminating all standards and licensing seemed a radical approach. It seems to denigrate those who have striven to achieve licenses and qualifications. To some, it may have even been insulting. However, it did stimulate conversation. 

There was an opportunity in this event for professionals to comment regarding their challenges with ongoing education in this community. They voiced that they are benefited from opportunities to learn new things, particularly skills or knowledge that are related to their profession but not necessarily within their personal role. There is some perception that we are gathered in siloes or categories and need to understand our neighbors better. The theme of this discussion was the benefit of medical professionals having exposure to claims challenges, or vice-versa. 

There is a perception voiced that exposure to and understanding of the roles of other community members could build better interaction and a more persistent focus on the overarching goals (recovery and remediation). Others noted that such exposures may also be likely to remind us of knowledge that has simply become buried or obscured in the volumes of experience and knowledge that accretes over long careers in the community. Essentially, too long in our own specialty or focus may cloud our recollection of the challenges others face. 

There was further discussion of roles, interrelationships, and challenges. There is recognition that claims professionals, regulators, administrators, and more are perhaps challenged at this time by the lack of interaction and intermingling that the pandemic drove. This opportunity to gather virtually with a diverse group and share perspectives was perhaps as critical in that vein, simple community and conversation. There was illustration here that workers' compensation is a fabric that involves a great many strands. Some might criticize and label it instead a "patchwork." That may be troubling, but perhaps accurate.

The conversation turned to a foundational theme of recent focus. Bob Wilson (one of the College founders) has been focusing on the term "worker recovery" for about a decade. The idea is to re-work or reconsider how people perceive this endeavor in which we all toil. The fundamental purposes of these systems are focused on the remediation of bodily injury, restoration of function, palliation of symptoms, and return to work. These are each admirable and appropriate goals.

There are those who see the "compensation" in its name as the antithesis of these goals. They find the "compensation" label of these various and varied state social safety nets as focusing attention on the monetary, and distracting from the remediation, restoration, and rehabilitation. Thus, they advocate us talking instead about worker recovery. And, in that theme, perhaps the name will evolve one day to Worker Recovery College?

The next opportunity for a free gathering for a conversation like that will be in April. However, the subject of worker recovery and more specifically the concept of "claims advocacy" will be the topic of the second edition of The Point webinar. This is a quarterly offering in which we strive to drill down through perceptions and vocabulary of workers' compensation and get to The Point. Many have heard of Advocacy Claims, and plenty speak of it. But, what is The Point?

This webinar will be an ideal opportunity to learn what goes on in a silo or category, claims, which is perhaps not your specialty. For the legal, the medical, the risk, and other professionals, this will be a valuable discussion. This will be an exposure to the challenges of the claim's professional and the contribution of that team to the remediation of injured workers. It will be an interesting discussion on Wednesday, March 1, 2023 at 2:00 Eastern.

The conclusion of the recent call seemed simple. We can learn through our interactions and conversations. We need not always agree, and some in the community may have some significantly radical ideas and beliefs. Despite our differences in background, worldview, and more, such conversations can stimulate discussion, interaction, and analysis. The opportunities, at a minimum, can help us understand better why various ideas and beliefs do or do not appeal to us personally.

Child Labor News

In the interest of full disclosure, I took my first job when I was twelve years old. There were child labor laws even in those dark ages, but I was fortunate to find a loophole that allowed me to be an independent sub-contractor for an independent contractor that distributed the Washington Post. I naively told people I worked for that paper, blissfully unaware of the subtle distinctions that permeate the world of work. I worked in the dark, seven days a week, without supervision regarding my safety or performance. I did not earn the mandated minimum wage. I was proud of my work, and pleased to have the opportunity. It taught me a great deal over four years. 

There are a raft of laws that protect children in the world of work. The move in that direction likely took a turn back when the United States Supreme Court took a hard u-turn on the commerce clause and concluded that the federal government could regulate intrastate activity under the authority of the interstate commerce powers it had been granted. That analysis in Hammer v. Dagenhart, 247 U.S. 251 (1918) is among the more intriguing reads one might find. Explaining the Court's logic in reversing its then-existing precedent might well come off like an Abbot and Costello routine. 

Despite that, federal laws do constrain intrastate activity as regards the workplace. The rationale and reasoning of Hammer lies at the root of a plethora of federal workplace regulation that has been layered on in the century since (OSHA, FMLA, ADA, etc). There are those who see the current coexistence of state and federal labor regulation as dual federalism, and others who find that label inappropriate based upon criticism of the order and predictability elements. It can make for cocktail party conversation, but not of the most compelling nature. If you run into someone that is ready for a Hammer discussion, you have likely wandered into a unique party

I recently ran across a news article, or perhaps opinion piece, published by the Guardian. As a side note, opinions should be clearly labeled by those who are journalists. It asserts that "child labor law violations have been on the rise in the US," and criticizes various state legislatures for both discussing changing state labor laws and advocating for federal changes. There is a perception or conclusion that our current post-pandemic economy has led businesses to recruit the young. The Guardian does not shy from its criticisms and conclusions. However, empirical evidence is thin in some regards. 

Certainly, the national news suggests that existing labor laws protect children effectively. The USA Today reported recently about a multi-state sanitation company fined for employing underaged in overnight cleaning operations. The Hill recently noted the allegation by some lawmakers that there are systemic child labor issues in some supply chains. HR Morning noted fines levied against a trampoline park here in Florida, as well as other violations of the Fair Labor Standard Act (FLSA). In short, there seems ample investigation and penalty underway regarding underage employment. 

The underlying Guardian theme seems to be focused on what hours of the day are permissible for employment for the young. There is criticism of the roles and "types of jobs young workers are permitted to do." And, in that, there is likely room for discussion and debate. There is some friction between a person's right to work and the government's desire to protect them. But, the Guardian proceeds to further criticize legislative efforts or discussions it perceives as intended to "shield employers from liability for injuries, illnesses or workplace fatalities involving very young workers."

As the inimitable Billy Shakespeare once noted, "ay, there's the rub." Hamlet, 1599-1601. The Guardian provides no citation for any proposed legislation that would provide employers with such liability protection. In point of fact, the criticism is seemingly more likely directed not at any changes or any proposals, but at the "grand bargain" that is American workers' compensation. That is the law, through employer immunity, that provides such a "shield" as regards all employees. This is not based upon age, nor is it somehow suspicious or suspect, or untoward. 

The Guardian analysis cites evidence of "increased" citations for "child labor law violations." Those statistics are troubling ("37% increase"). There are anecdotal examples of "high-profile" allegations of violations involving recognizable employer names. Those are seemingly ongoing investigations or prosecutions. The coverage does not provide clarity as to whether there have been conclusions or convictions in those cited instances. The result of those citations might well be that the law is operating as intended?

And, subsumed in the article's analysis is criticism of a state considering the expansion of the kind of work in which teenagers can engage. The focus is Iowa Senate bill SF-167. The Guardian article does not cite the bill but does provide a link to another article that cites the bill. It is frustrating sometimes that journalists leave us to hunt down source material that is easily citable. The Iowa bill does expand the scope of some work activities, but arguably further restricts others. That balance is missing from the article. 

The bill does not mention workers' compensation specifically but does address "civil liability" regarding students participating in work-study. Perhaps either the authors ("also strips workers’ compensation rights for these workers") or I may be misconstruing the bill in this context. There seem to be multiple potential interpretations of the bill. Despite not being linked in the article, it is presumed that the actual bill was read in drafting the Guardian piece, and the other article alone was not the source of information. 

The president of an Iowa labor group is quoted criticizing the bill. He voices a perception that the bill dramatically turns back the clock on child labor, and characterizes the legislative process as "re-litigating a lot of things that seem to have been settled." Legislatures are not litigation. He reminds that "Child labor law is there to make sure that kids are working in age-appropriate work activities or occupations that are appropriate for their age." This redundancy clarifies it is critical that age-appropriate work is appropriate for age. How could one argue with that? Or, perhaps this argument is persuasive regarding the proposed changes in state law?

The authors bring valid attention to the risks of injury for young workers. There is empirical data that supports that young people have higher rates of injury. There are also perceptions in the workers' compensation industry that new employees suffer more work accidents than more seasoned workers. Each of these is likely attributable in part to inexperience and inattention. The article alleges that the rates of minor injuries are "likely an undercount" and the frequency is actually higher. There is no data cited in support of that conclusion or conjecture. The conjecture occurrence in media is likely undercounted (I made that up). 

The quoted sources in the Guardian article focus on their desire for greater consistency in the regulation of labor. They lament that children work on family farms and in family businesses under existing exclusions or exceptions. There is criticism and angst regarding legislative debate and discussion, but there is little or no citation to the perils or dangers that are paraded in those settings. There is no discussion of equal protection of the laws and the discriminatory effect that allows the child of a business owner greater access to employment than those of us whose parents did not own businesses.  

Iowa is not alone. Minnesota is purportedly considering changes to its labor laws also. Business Insider reports that the potential is related to a shortage of labor. It casts the debate as a sufficiency analysis in which it perceives two interactive elements: sufficiency of payroll and sufficiency of supply. It asserts that increasing labor supply through labor law alteration is one solution to insufficient labor supply, but that increasing payroll would otherwise increase labor supply by drawing the majority workers back to the workplace. It is possible that increased wages would impact that supply/demand equation. But, there is no empirical data cited. Are majority workers on the bench due to their perceptions of wage availability, or are there other causes?

In the end, the sentiment of the Guardian author's analysis is that the young are being subjected to exploitation if they are allowed to work longer hours during "summer months" or "on holidays." There is the perception expressed that such exploitation is possible if young people are permitted to "extend working hours" with their parent's permission. There are fears expressed regarding "placing (the young) in dangerous work environments," but no discussion of the specific prohibitions in the Iowa bill regarding such work (NEW SECTION. 92.6B "Persons fifteen years of age may not be employed in").

No article cited herein regarding proposed changes in state law makes any mention of the Supremacy Clause of the U.S. Constitution. The federal laws will control when there is conflict with state law. There is no path for states to legalize what is controlled by Federal law. Certainly, the great pot-rush of the twenty-first century has demonstrated to us that states can decriminalize behavior and ignore federal law if they wish. A great many have championed and applauded this rampant disregard of federal law. But, the success of the pot-rush has been endorsed and facilitated by the federal legislature that refuses to change federal law on one hand and precludes its enforcement on the other. 

In the end, the critics would perhaps be better served to confront that riddle. Is there to be effect of federal law? Is federal law meaningful? If it is, the FLSA is both valid and effective preclusion of child labor. No action of the states will change that federal law, so long as the Congress allows it to be enforced. But, the great pot-rush has taught us that money talks and perhaps the potential for failure or preclusion in federal law enforcement is what keeps the critics and journalists up at night regarding states and their suborindate child labor statutes?

The Donut Hole

The "donut hole" has been used over the years to describe or illustrate a great many situations. My favorite is where the element of dough is excised from the main element, creating a hole in that main element, and then the excised portion is separately cooked and doused in some sugary concoction. Sure, it tastes no better than the donut itself (the main element), but there is something exceedingly attractive about the bite-sized delicacy that is colloquially the "donut hole."

But, the term has also been used to describe a "gap in coverage" with Medicare. Enid News and Eagle. It has been used to express a perceived inadequacy or incompetency as regards Football by Steelers Depot. Think Advisor uses the term to discuss Social Security. The term has come to represent a "gap" or "space." And, there are more than a few who perceive some donut holes in the practice of law. Though there is some generalized application of the term here, there are specific concerns expressed about Florida workers' compensation.

There are those who perceive the Florida Legislature's changes of 2003 as disincentivizing litigation of workers' compensation issues. They point to the 2003 "end" of hourly attorney fees, though this ignores the persistence of section 440.34(7) hourly fees within a specific constraint. With that statute change, some perceive less motivation to litigate. Critics of this perception insist that lawyers are unmotivated and unswayed by monetary reward and pursue justice for justice's sake.

The former, perceive that the 2003 law changes resulted in less litigation and a greater propensity toward settlement. They may, in their haste or simplicity, forget that an earlier revision in 2001 had made significant changes in the settlement process writ large and thus simplified the process. It is entirely probable that those changes produced some degree of settlement preferences or proclivities. Florida's history demonstrates an intriguing progression in terms of perceptions regarding settlement. 

In the end, however, there was a perception that workers' compensation practice in the twenty-first century became more about settlement. This contravened a perception in the twentieth century that workers' compensation was a practice in which litigation and lawyering were endemic. It was a practice to which young lawyers were often drawn by opportunities to try cases, independently manage discovery, and otherwise glean significant experience. Some perceive those opportunities diminishing in the early twenty-first century. Thus, they perceive a decreased attraction to the practice.

After the Supreme Court's intriguing analysis in Castellanos (See Castellanos Decided by the Supreme Court, April 2016), there were those that anticipated an increase in litigation. Some prognosticators believed that litigation would precipitously increase and there was anticipation and, in some quarters, anxiety. There was a proposal for an increase in workers' compensation premiums in the expectation of litigation, and perhaps uncertainty. See Attorney Sues NCCI (August 2016). Some perceived that there had been a drought in young lawyer hiring in workers' compensation and some predicted this increased litigation would bring more hiring.

Despite the predictions, litigation has not increased significantly. Whether there is empirical support that young-lawyer hiring decreased in the early twenty-first century or increased after Castellanos, or not, remains unclear. But, today there is a perception of more young lawyers in workers' compensation. Observers often discuss that perception, and there is some disagreement as to whether the Supreme Court decision is responsible or whether it is merely a reflection of the passing years and increasing retirement rate of the Boomers. Whether we acknowledge it or not, time comes for us all. 

While that may be of academic interest, the overriding point is that we perceive more young lawyers in workers' compensation litigation. And, there are those who perceive a "donut hole," with the gap being the presence of mentors and managers that are close to these young lawyer's age and experience. It was once common for workers' compensation firms to have "senior partners," then "partners," "senior associates," and the "new hires." In today's practice, some perceive an absence of "senior associates" in many instances, and even of "partners" in some.

In short, there is some perception that "new hires" are once again proliferating. There is a fear, however, that they are doing so in an environment of minimal camaraderie and collegiality within a firm. When I have heard this discussed by the old and grey, they often lament that such mentorship is largely missing in the workers' compensation practice at large. The potential exists in some areas with an Inn of Court, but some perceive that less than complete. They acknowledge it "as a start," and are quick with some criticism.

The Workers' Compensation section is striving to rebuild connections. There was once a perceptibly more convivial spirit in this practice. The days of yore were replete with live events, informal meetings, live depositions, handshakes, small talk, babble, and even prattle. We used to be with one another persistently and repeatedly. Work was a social experience as well as a money-making endeavor.

Technology changed us.

The pandemic changed us.

The next generation's tech-savvy/tech-comfort is changing the practice.

On this side of the donut hole, it is inspiring to see so many young people becoming part of the practice. We see new people coming to workers' compensation from other practices, and fresh from law school. We are experiencing a renaissance, renewal, and reinforcement. The next generation is here, and it is undoubtedly not the Boomers that will be owning firms, writing rules, and navigating this narrow path between capitalism and socialism that is workers' compensation in 2030 (sure, a few may still be around, but they will be yesterday's news).

The Forum is in April. I wrote The Time is Now (April 2022) describing the Forum. It is an excellent opportunity to gather and collaborate, commiserate, and cultivate experiences. I encouraged there that we all go looking for "the next generation" in 2022. I am hopeful that many of you have done so over the last year. Now is the time for those lawyers to gather, connect, and communicate. As they face potentially less camaraderie or mentorship within firms, the time is right for them to find opportunities for collaboration and growth among their peers.

How many firms will send a young lawyer to the Forum in April? Last year I extolled one that did. I hope this year to find many fresh faces in Orlando. I hope to meet many young lawyers who are entering and claiming this practice as their own. The leaders of tomorrow will not be born or found; they will be made. I am hopeful that you will make them, foster them, and encourage them.

The OJCC will strive along with you. In May, we will sponsor our first Work Comp Academy. The response has been overwhelming. No one can contest that the community is ready for such an effort and that young lawyers are in need of such an effort, and judging by our 40-plus faculty it is apparent that the community is committed and ready as well.

The time is indeed now. I look forward to seeing everyone at the Forum. Please consider including your new-to-comp colleagues in the opportunities. Let's build on our excellent foundations and bridge the "gap" or donut hole. And, on that note, bring some donut holes if you happen to think of it.

Billboards

Valentine's day, when a young man's thoughts turn to candy. Sorry, but that is a brutal truth. I recall throwing away a great many valentine's cards back in the day. It was traditional that each child in each class provided a card to every other student. Talk about wasted forest resources. The only retention was the lollipop, or occasional chocolate attached. As we age, perhaps this Hallmark holiday became of more significance? Or, perhaps less?

This valentine's day, however, brought a press release from Florida. The Governor appeared with both Senate President and House Speaker on valentine's day to announce an effort to address the perception that Florida is "a judicial hellhole due to excessive litigation and a legal system that benefitted the lawyers more than people who are injured.” Workers' compensation is not mentioned in the release, but there are possible potential implications. 

I have heard criticism from various jurisdictions regarding perceptions that workers' compensation benefits are inadequate or incomplete. Many across the country complain about their perceptions of the "grand bargain," and lament their conclusions regarding the adequacy of benefits and the evolution of the quid pro quo. In those conversations, I am often reminded of the sentiments of various groups regarding attorney fees in their respective jurisdictions. Too often, the refrain is a comparison of fees to substantive benefits and allegations of perceptions that lawyers benefit more than the injured worker. 

The focus of the valentine's day press release is on "billboard attorneys." Senate President Passidomo noted a distinction, and assured that “the vast majority of attorneys work very hard to provide sound legal representation for Floridians in these difficult circumstances." The perception is not of a broad nature, not a conclusion regarding "lawyers" in toto. But, she explained a perception that "there are a few bad actors who are in the business to draw out civil cases as long as possible, collecting more and more fees from insurance companies, and that has to stop."

The conclusion of the release is that the 2023 legislative session will include "the most comprehensive reforms in decades to decrease frivolous lawsuits and prevent predatory practices of trial attorneys." This is reportedly to "include eliminating one-way attorney fees and fee multipliers for all lines of insurance." And in that, "all lines," is the potential perhaps that workers' compensation could be implicated. 

There are those who will see any inkling of "reform" as disruptive and even threatening. Others may view "reform" as empowering and inspiring. The details will be in a bill, and that will undoubtedly provide greater edification of the reform proposal. 

The release notes that reform will bring Florida closer to the processes in other states. There is a focus on the manner in which "Litigation drives up the basic costs of goods and services for everyone across all areas of industry and commerce." In that regard, some may likewise see implications for workers' compensation. At every level of business, there is an element of consumer cost that comes from workers' compensation. Most businesses are paying such premiums, and include that cost in their prices. Each supplier, service partner, or other entity involved with any business or consummer likely has some degree of workers' compensation expense built into its pricing, with the exception of small employers (less than 4 employees). 

The release notes the potential for litigation, and the environment it sustains, to result in "the hidden cost of lawsuit abuse." The Speaker noted that this "has cost the state jobs and driven up the cost of goods and services.” The Speaker cited a report concluding that "lawsuit abuse costs Florida households more than $5,000, and costs the state more than 173,000 jobs annually."

The release proceeds to identify objectives such as "eliminat(ion of) one-way attorney fees for all lines of insurance and attorney fee multipliers to permanently disincentivize frivolous lawsuits." The Florida "bad faith" law is mentioned specifically, as is an effort to "incentivize good faith between both parties" in litigation. There is also reference to previous legislative action in regards to reform in a special session last May. 

Under this reform proposal, Florida’s “bad faith” law would be modernized to balance the scales between plaintiff attorneys and insurance companies to incentivize "good faith" between both parties and promote the best interest of the consumer. This provision would also maintain consumer-focused protections to ensure that true bad actors are held accountable.

The Legislature convenes this year on April 10, 2023 and committee work is underway. 

Bigfoot, Unicorns, and Predictability

I overheard a conversation in which a well-respected and seasoned litigator informed various lawyers that he could never have a conflict with a particular judge. That piqued my curiosity, and I listened just a bit harder. He described how he had a "standing disqualification“ with that judge. I found that intriguing, because. like unicorns, magic snowmen, and reclusive primates of inordinate foot size, there is simply no such thing. Hearing someone of his experience believing in bigfoot was troubling. 

It is possible that a judge may enter voluntary recusals in a variety of cases. That might be perceived by any party, lawyer, or observer, as  seeming “automatic," or "standing." One might make the same observation regarding my culinary habits and weekly visit to my favorite pizzeria. My habitual choice of restaurant, and even of particular soft drink, appetizer, and pizza, might be viewed by some observers as “automatic,” or "standing." However, that I have proclivities, predictabilities, or even habits, does not make anything "automatic.”

In the world of adjudication, there are those who simply lack the ability to set aside implications of former relationships. Over some period of time, they have come to some degree of affinity or connection, and have concluded the existence of their own unassailable predisposition or bias. Others, out of a concern for public perception of the duration or extent of inter-relationship, may instead elect recusal, based on the broad prospects of an appearance of impropriety (Canon 2, Code of Judicial Conduct).

Clearly, neither approach is inherently wrong. As clearly, neither is “automatic" nor "standing."

Back in the day, my legal representation included one of the largest manufacturers of ground coffee in the world. I habitually, regularly, and rotely, consumed a pot or two of coffee every day. Coffee was a "go-to,“ A regularity, a habit. Over the course of decades, following college. I had become enamored with the aroma and taste of coffee. A family member once accused me of being an "addict,” to which I took some umbrage.

In February 2005, responding to that “appearance of habit,“ I gave up coffee. I did so that way one successfully gives up anything, “cold turkey.“ The next coffee I ever consumed was over 14 years later in the summer of 2019 when I was drawn back to the concoction by the novelty of my first trip to the European continent in half a century. I reasoned that trip might be my only opportunity, and I partook. Since then, I have consumed something less than a dozen cups of coffee in four years. All of them in Europe.

From either perspective, you might view that and conclude I had a coffee habit and then an abstention habit. But no one would be justified in concluding, even at my two-pot-per-day pinnacle that coffee was “automatic“ or "standing." Even then, I frequented water, soda, and more in my beverage choices. And in the last 18 years of my coffee abstention, one might point to the dozen European instances, and suggest that my abstention was likewise not "automatic.“ But, despite that, an observer is not bound by the facts but by their perceptions of the facts. 

There was a humorous 20th-century commercial regarding the consumption of coffee. A host proffers a refill and it is accepted by "Jim." A "significant other's" thoughts are quietly narrated in: "Jim never has a second cup of coffee at home.“ The theme was notable, and became part of our lexicon. It was the subject of some humor in Airplane (Paramount, 1980). It illustrates that perhaps Jim has a one-cup habit. Jim is perhaps quite predictable by those close to him. But, Jim is making individual, case–by–case decisions regarding his consumption. His coffee decisions are neither "automatic" nor "standing." 

Judges make individual, case–by–case decisions, regarding a plethora of topics, subjects, interpretations, and applications. That, at bare essence, is what we do. That an outside observer discerns or perceives some pattern is perhaps more on them than upon the observed judge. It behooves the community to understand that any individual's perceived habit may or may not persist as you anticipate, or expect. What is appropriate in a particular case is ultimately up to the judge.

It is important that any party to a case may freely disagree with the judge's decision in this regard, but within limits. Recusal is the voluntary removal of oneself from a case. By definition, a recusal is an individual's subjective expression of some justification for a personal conclusion of either an inability to preside or a significant potential for the perception of impropriety. It is exceedingly difficult to seek a successful appellate review of a voluntary recusal, although it possibly remains practical in some limited instances. The potential might lie in the extent and detail of such an order. The procedural path would be through an extraordinary writ of “mandamus.“ 

See, Writ Protection as Opposed to Appeal (July 2017). 

Any party disappointed with a judge's decision declining to recuse could seek the affirmative relief of "disqualification.“ Way too many lawyers, judges, and others confuse these two terms as if they were synonyms. “Recusal“ is self-directed and voluntary, disqualification is a response to an allegation or conclusion (Motion) raised initially by a party. If there is a motion, then the subject is disqualification. A "motion for recusal" is a misstatement and a badge of misinformation or ignorance. Disqualification is precisely the procedural tool for a party who believes a particular judge presiding would be inappropriate for whatever reason.

These are subtleties. Certainly, the nice ladies in the videos could take umbrage at the fact that "Jim never has a 2nd cup at home." There could be offense, hurt feelings, and perceptions. However, it is perhaps just as likely that Jim is on a whim. Without hearing Jim‘s thoughts, perhaps the world will never know of his second-cup rationale. Similarly, we cannot presume to know the basis of recusal, nor the minute detail of analysis in any order. All one generally has is the order. In our adjudicatory process, one generally asks what they ask (motion), and gets what they get, the order. When there is not even a motion, then the reasoning of the order may be all the more subject to speculation. 

And, in the immortal words of Forrest Gump, that ultimate outcome may be served with a portion of ambiguity, unpredictability, and conjecture. Recusal, like life, is “like a box of chocolates,“ perhaps. Forrest Gump (Paramount, 1994). It may be for reasons one suspects. It may be for conclusions one might never guess. And, as importantly, one must remember it may be simply from a concern of an appearance that is visible only to the judge entering the order. One simply never knows the recusal rationale, and of course, no judge would ever speak of it personally as that in itself could have serious implications. The order speaks for itself. 

The point here is that no lawyer knows why recusal(s) may come. What is clear, however, is that there is no "blanket disqualification," nor "automatic" or "standing" recusals. Holt v. Shehan, 122 So. 3d 970 (Fla. 2nd DCA 2013). There are likewise no unicorns, magic snowmen, or reclusive primates of inordinate foot size. When one mentions their reliance upon, or faith in, such fantasy or fantasies in conversation it may erode the listener's faith. 

Badges and Behavior

The Office of Judges of Compensation Claims is fortunate to be protected by armed guards. We have had that accommodation since the 1990s when a lawyer shooting in south Florida made the news in workers' compensation circles. It is likely that few community members today remember the "old days" before there was security, after all that was 27 years ago. When we first got security, it was the Florida Highway Patrol. They remained until 2021.

As a result, when I first came to Pensacola, I met several patrol officers as they staffed the office. They were genial, helpful, and welcome. Their presence was reassuring, as was the presence of a "black and tan" (the slang for a trooper car, which they taught me) in the parking lot. After their services had been discontinued for a few years, I was making a trip somewhere only to find my intended route to Intestate 10 unavailable. I was therefore on an alternate secondary highway at around 03:30 in a rented car.

As I drove the nearly deserted road, I saw only one other vehicle: tail lights in the distance. I struggled with the unfamiliar car, unable to get the cruise control to work. I would get to the speed, push a button and the car would momentarily function and then slow. I would reaccelerate and try again, each time with the same result. The car in the distance pulled over, which I thought nothing of. I continued to focus on this recalcitrant machine. But, as I approached, I noted that the other vehicle was a "black and tan," and soon its flashing lights were activated.

The trooper examined my license and car rental agreement. He explained his perception that I was driving erratically, having noted my near-constant vacillation in speed. I explained my unfamiliarity with the car and the difficulty with the cruise control. He was genial and understanding. Then he asked where I was going, and I provided that city. 

Then "so traveling for business, where do you work." This an uncomfortable question, to which I replied simply "I work for the state." He persisted, "what department?" I deflected. Then he was more direct "aren't you the work comp judge from Pensacola?" That was a direct question that was hard to dodge. I suspect my expression gave me away because before I could answer he followed with "I thought that was you." He had guarded the PNS office and recalled me, though I did not recognize him. In fairness, I met many troopers, but he met but one judge. I was still chagrinned at not recognizing him.

Needless to say, there was no reason for further interaction. I had not been driving unsafely and was not a danger as the speed vacillations had made him initially suspect. He wished me a good day and we parted company. I have often reflected on that interaction and the prohibition on "playing the judge card." There have been a few judges over the years who have done so and avoided consequences; I hear stories. And, there have been a few that played that card and created consequences that would have been better avoided. I reflected on that recently writing Privilege and Audacity (January 2023). There, a judge is accused of playing the judge card and is facing a hearing over it.

And, this all made me think of the news coverage in 2022 regarding Tampa's police chief. According to NPR, she was a passenger in a golf cart driven by her husband. They were stopped by a deputy sheriff for driving on a road without a license plate. The police chief presciently asked "is your body camera on?" She then identifies herself as the Tampa police chief and asks the deputy to "just let us go." She reportedly also gave the deputy her business card and said "if you ever need anything, call me. Seriously. I appreciate you."

It goes without saying that the Code of Judicial Conduct discussed in Privilege and Audacity does not apply to a police officer or chief. However, the impact is similar. There is an appearance of impropriety when someone suggests that some status or title might glean preferential treatment. Upon learning of the chief's behavior, the Tampa Mayor expressed "disappointment" and "requested . . . resignation." The police chief resigned in December 2022.

The Tampa Bay Times did a bit of a deeper dive into the Mayor's comments. It noted that the Mayor reminded that "The Tampa Police Department has a code of conduct that includes high standards for ethical and professional behavior." And reiterated that the chief was bound by those standards and more importantly "to also lead by example." The Mayor concluded "it was 'unacceptable for any public employee, and especially the city’s top law enforcement leader, to ask for special treatment because of their position.'”

The Times also reported an ancillary issue from the traffic stop video. That conversation included a representation by the Chief that she was a local resident, in Pinellas County. As the video gained circulation, there was a discussion of a Tampa requirement that city officials reside in Tampa (not in Pinellas County, but in Hillsborough). Though that is an ancillary issue, a council member noted the point and said "Officials should respect 'the spirit as well as the letter of the law.'" And that sounds a bit like the "appearance of impropriety" standard that is in the Code of Judicial Conduct.

The point of it all is clear. There is no appropriate business encounter in which it is appropriate to "play the judge card." Likely, there is similarly not an appropriate instance to play the Police Chief card either. In Judicial Self-Promotion (April 2017), there is a discussion of the challenges involved in judges being given traffic citations and identification as a judge in such encounters. One might argue that there is no Florida opinion on point regarding such identification, but one might also argue no specific opinion in that regard is necessary. 

It is possible that one may be recognized in the course of a traffic stop or other public encounter. It is a challenge that should drive us to avoid traffic stops when possible. It is absolutely inappropriate to identify oneself as a judge or police chief in order to curry favor or ameliorate consequences. Doing so violates the rules, and even in the narrowest of circumstances can easily create the appearance of impropriety. There is no instance in which "I'm a judge" is the go-to answer. That does not mean one will not be recognized. It is hoped that if one is, that recognition will not alter the outcome in any way. 

The point is that there are no grounds for special treatment or consideration. It should not be offered, given, or accepted. And, above all else, it should never be sought. Leave the badge in your pocket and sign for the ticket. As the Mayor noted, lead by example. 

Work Comp Academy 2023

It is rare that a litigator has the chance to collaborate with the breadth of experience that is the faculty of the Work Comp Academy 2023. This program is titled “the next generation,“ and it’s focused upon those who will be the foundation of this practice in 10-20 years' time. Our recollections of the greatest generation are supporting what is workers' compensation today, and remind us what was. The boomers are owning and running law firms, but are fading and retreating. The millennials are certainly today's management and experience. But, generation Z is entering the legal practice. They are undoubtedly tomorrow. What we do for them will make a big difference in what this practice looks like in decades to come. 

On May 19, 2023, the Florida Office of Judges of Compensation claims will present in Orlando, a Worker’s Compensation Academy, focused on interaction, communication, collegiality, mentorship, and professionalism. In a full-day program, extensively diverse faculty will provide small-group interaction with lawyers that have less than 7 years of experience in the workers' compensation practice. The atmosphere will be relaxed, the theme will be collaboration, and the results will be rewarding for all involved.

As we "experienced" aged mature old attorneys and judges strive to deliver the wisdom of experience, struggles, and investment, it is hoped that the next generation will reciprocally deliver perceptions, innovations, and fresh perspectives. It is critical to accept and remember that this practice will eventually not belong to, or even include, the baby boomers, but will come to be the domain of these Millenials and then the "next generation." They will be the leaders, the litigators, and the foundation of workers' compensation. Hopefully, they will collaborate one day to similarly welcome and involve yet another "next generation," and so on and so on. 

Young lawyers will be receiving emails about this program soon. If you are a practitioner with less than 7 years of workers' compensation experience, keep an eye out or email david.langham@doah.state.fl.us to express your interest. If you don't meet the criteria, but someone you know does, send them a note and let them know of this unbelievable opportunity to be in the company of some fantastic practitioners, mediators, and judges!

The program will be limited to lawyers with less than 7 years' of workers' compensation experience. Initially, we will strive to limit firms to 3 attendees, in the interest of diversity, but more may be included on a space-available basis. We will strive to keep the limited (40) seats as evenly divided and diverse as possible. The goal is to involve those who represent workers, as well as those who represent employers. The goal is communication, collegiality, and community. This will be an outstanding opportunity for all young attorneys in this practice. And, the price is absolutely free. 

Spread the word. The faculty represents an aggregate of over 1,000 years of legal experience and over 100 years of judicial experience. We are grateful to the many outstanding lawyers that have committed to making this program a rousing success:

Catharine Frances Agacinski, Esq. (TPA); Holly Akers, Esq. (JAX); Judge Eduardo Almeyda (MIA); Neil Ambekar (ORL); Judge Wilbur Anderson (DAY); Judge Brian Anthony (TPA); Judge Robert Arthur (TPA); Courtney Collins Bahe, Esq. (ORL); Caitlin Beyl, Esq. (JAX); John Paul Brooks, Esq. (DAY); Jessica Carrier, Esq. (SAR); Judge Barbara Case (WPB); Natalie Cavallaro, Esq. (TLH); Amie DeGuzman, Esq. (JAX); Linda Farrell, Esq. (JAX); Ana Gonzalez-Fajardo, Esq. (MIA); Karen Gilmartin, Esq. (MIA); Kristen Gottfried, Esq. (FTL); Silvia Maria Hoeg, Esq. (ORL); Judge Jill Jacobs (ORL); Daniel Todd Jaffe, Esq. (TPA); Judge Margret Kerr (MIA); Ryan Michael Knight, Esq. (MIA); Lindsay Jo Koppelman, Esq. (MIA); Judge Sylvia Medina-Shore (MIA); Javier Melendez Santiago, Esq. (ORL); Gary Alan Miller, Esq. (MIA); Judge John Moneyham (PMC); Ivan Pablo Morales, Esq. (MIA); Tara Pachter, Esq. (TPA); Judge James Peterson (TLH - ALJ); Judge Neal Pitts (ORL); Randall T. Porcher, Esq. (TLH); Barbara Richard, Esq. (OCA); Grethel San Miguel-Callejas, Esq. (MIA); Judge Lourdes Sancerni (ORL); Judge Megan Silver (TLH -ALJ); Carolyn Slowikowski, Esq. (PNS); Judge Timothy Stanton (JAX); Dawn Traverso, Esq. (MIA); Judge Rita Young (SPT). *Italics denote service on the Conference Steering Committee.

Agnotology

It is not uncommon to run across a word that is unrecognized. The world is full of big words, and the legal and medical professions in particular seem to like them. I recently saw "Agnotology" and found it intriguing. The idea revolves around the concept of "culturally induced ignorance or doubt." The British Broadcasting Corporation (BBC) published a story featuring a discussion of ignorance and its allegation of how industries or individuals may employ agnotology to encourage disregard for one set of beliefs by inducing doubt or substituting other beliefs.

The initial read drew me back to Forest Gump and his infamous "stupid is as stupid does" quote. Forest was not the best at remembering things perhaps, but he was persistently focused on what his mama told him. Isn't everyone to some degree? We have been told that people are more likely to believe things they have heard before. See Repetition and Trial (January 2023). Thus, perhaps indoctrination is real, and what we learn in kindergarten may be as critical as we have been led to believe. 

The BBC story in 2016 suggested that there are "people or companies" that "spread ignorance and obfuscate knowledge." The focus there is largely on tobacco companies and the contention that they knowingly and purposefully fostered doubt about the challenges and risks of smoking tobacco in order to encourage and maintain their sales and thus profits. 

Many today will largely lack perspective on cigarette advertisements. Tobacco ads on television and radio were banned in 1970 (on April Fool's Day). Such ads for "smokeless" tobacco continued through the mid-1980s. It was touted as a "safe alternative."  There were those who saw inconsistency in the advertisements for vaping that arrived and persisted, thereafter. 

The day will perhaps come when a similar discussion will occur regarding the potential dangers of vaping, pot, and more that is wildly popular today. The cycle of introduction, adoption, growth, and the onset of reality seems familiar. In the meantime, some conclude that the absence of evidence is indeed proof of absence. And, to argue that marijuana smoking could or does cause cancer would perhaps be seen by some as Agnotology. But is the conclusion that pot cannot cause lung cancer any better?

The BBC article focuses on the employment of doubt in marketing, and companies fostering at least some perception that criticisms are less than absolute. As a tobacco company memo in the 1970s concluded, "Doubt is our product" and was "the best means of competing with the ‘body of fact’ that exists in the mind of the general public." Through a process of "controversy” regarding what people should believe, the campaign was reportedly focused on maintaining doubt and thus sales. Is there, in the minds of the public today, at least some association between any smoking and cancer?

The article proceeds to explain an Agnotology study, and the etymology of "agnotology," which is related to this campaign of doubt. The word comes from the same root as agnostic - agnosis, merged with "tology" to denote study, and perhaps to suggest or engender a perception of science. It is interesting in light of our predisposition to believe things we already know. Repetition and Trial (January 2023). We perhaps naturally and emotionally embrace things we are exposed to repetitively. It appears at least that marketing and advertising work. We can be conditioned to accept and believe things. Why would it be so difficult to be conditioned similarly to doubt?

There is a variety of products and services in our society that one might question. Of course, with the current world sentiment one might catch a great deal of abuse in the cancel culture just for questioning. The Agnotologists would suggest that any debate or disagreement might be disinformation and worse. There is a great spirit in modern America to coerce toeing the line regarding group-think and widely accepted beliefs. We persistently see individuals ridiculed in social media, the press, and the world for daring to suggest that the emperor is unclad. Some of the responses to conspiracy theorists and their conclusions may be right on point. 

In fact, there are those who use that same emperor reference to suggest that their own argument is just and righteous. Is there an empirical reason to ban pot, or has it remained federally forbidden because of a rote agreement to its prohibition by people, scientists, and more who simply bought into an initial untruth about its potentials and dangers? See Jack Herer, The Emperor Wears No Clothes: A History of Cannabis/Hemp/Marijuana. The pot advocates would not likely accede to the posture that questioning and debate are wrong, ineffective, or Agnotology. 

Why do we believe what we do? And, when did we start? Can you identify the moment when you bought into your particular beliefs? There are those among us who have adopted intriguing practices regarding diet, exercise, work, recreation, and more. They express belief and acceptance of their own preference or course, and often seem to doubt your intellect because you might even question their conclusions. People can be self-righteous, imperious, insulting, and even incorrect. And, often, their conclusions and belief processes have been influenced by those who have an interest in fostering those beliefs, that group-think, or consensus.

Is the concept of a campaign of doubt a product of tobacco and the 1970s? How hard would one have to search in order to find some earlier historical introduction of doubt, uncertainty, and fear in the marketing of concepts, products, and more? Perhaps not so far indeed. While the BBC author suggests that "the tobacco industry" is "the perfect example," there are perhaps many more. Possibly, the doubt perspective has been at play throughout our existence even since the world's leading scientific thinkers believed strongly in the geo-centric universe? 

They once put Gallileo on trial. Who was focused on doubt in that disagreement, the church or the scientist? Is it possible that both relied to some degree on the doubt that is possible in a world of imperfect knowledge? Is it possible for scientists to disagree regarding what is, why, and where that might lead us? In a world that vilifies those who express different views, and challenge the accepted (currently) truths, is it practical to doubt anything? Or, for that matter, everything? Our recent experience with COVID certainly highlighted the challenges of opinion and doubt, not to mention science (or some scientists). 

The BBC author seems to vilify the conclusion that debate can be positive in many or most instances. There is a benefit to differing views. But, the BBC article and its subject scientist, support the suggestion that anyone debating or disagreeing is perhaps a victim (or perpetrator) of this Agnotology, manipulated doubt, or other obfuscation (conspiracy theorists). The article promotes that "the common idea that there will always be two opposing views does not always result in a rational conclusion." Ah, but in that expression of "not always" there is the admission that the consideration of multiple views might indeed lead to a rational outcome in at least some and perhaps most instances. 

The BBC conclusion is seemingly that because a particular argument is eventually discredited or disproven, this result is proof that debate and discussion may not always be appropriate. The logic is that some singular example argument was unfounded (perhaps purposely so) and thus, we should restrain ourselves from doubt generally because we allowed there to be the discussion as regards tobacco. This is an absolutist and imperious approach that suggests someone, somewhere, will dictate what is or is not appropriate debate. That, begs the question of who that someone is? Is it the group-think of the elites and social media influencers?

The article proceeds to denigrate any that doubt. Its perspective is, perhaps, disingenuous and self-serving. It is a suggestion, perhaps, that we sheep should simply get in line and believe what we are told. It is conspicuously quiet regarding the many instances in which doubters asked hard questions that were not answered. It is an overall indictment of inquiry and debate founded on selected examples and conclusions of absolute truth. And, in the end, it is seemingly suggested that questioning and debate are unhealthy except within the framework or construct of some particular perspective. 

Instead, the author and sources insist that the truth is critical. It is the answer to societal challenges such as "faith or tradition, or propaganda." They advocate that we move forward from what is believed and instead accept the "facts." Armed with the "facts," they suggest, we will be immune from the debate and the discussion, immune from the doubt. And, with that conclusion, they ignore the "fact" that the sun revolves around the earth, or so the consensus of group-think and contemporary science once held. 

There is a disconnect, perhaps. We live in a world in which one week there is a scientific certainty that eggs are bad for us, followed the next week by a scientific conclusion we should eat more eggs. There is a persistent parade of conclusions in which the truth is either that we should or should not wear face masks, and similar. There are scientific conclusions and successes, and there are later studies that undermine or disprove them. We are persistently presented with advice about what cannot harm us, and later see some product, practice, or suggestion fall from vogue for precisely that harm. 

There is room in society for doubt, discussion, and debate. While there is perhaps the potential for doubt to be introduced, that threat is a double-edged sword in which any belief or conclusion might be engaged. Doubt of any conclusions, of whatever source, may be necessary and absolutely critical to rational decision-making. Perhaps doubt and debate are our best paths, paths that we might celebrate instead of condemning? This is not to say we join every conspiracy theory, but that we critically analyze theories generally.

There is a great threat, perhaps, in the group think, the cancel culture, and the power of social media for thought censorship. There is likewise danger in the obfuscation of the truth. And, in the end, there is likely no perfect world to be had in which we will all accept the same conclusions and adopt identical beliefs. Truth in some instances will be an absolute, and in others merely a conclusion. 

Thus, Justice Brandies' conclusions in Whitney v. California, 274 U.S. 357 (1927) are likely still worthy. The answer to speech with which your values disagree is not censorship or cancellation or name-calling (agnotology), it is more speech. And, it is likely worthwhile for all of us to listen to speech with which we disagree, that is contra to our own truth. In the debate and discussion, we will either adopt new perspectives or reinforce our own. Neither outcome is damaging.