Major Change in the EMA

The 2023 Legislative Session closed on May 5, 2023. Each session of my career has been a learning experience. Each begins with so many big ideas. There is hope and enthusiasm and focus on this change or that. The capitol teems with activity, familiar faces, hustle, and bustle. As the session progresses, bills fall by the wayside. It is a function of time and distance. The path to passing a bill is long and challenging, and time is always limited.

There are many who watch for workers' compensation each session. They monitor the system for bills that touch Chapter 440. I often hear from them as regards this or that bill, its potential impacts, and perceptions of consequences from bills. There are many touched by this law, but relatively few can take the time to make workers' compensation their priority unless a systemic change is in discussion.

The 2023 session will not join the annals of Florida workers' compensation history. 2023 was no 1970, 1974, 1979, 1990, 1994, 2001, or 2003. Those were each watershed moments in our path to today. Each of those laws included broad shifts that altered our course fundamentally. That said, 2023 will be remembered for repair to the Florida process. CS/CS/HB 487 passed in the waning days, on May 3, 2023. It is a lesson in legislative process.

The name of the bill is instructive. "CS" denotes a committee substitute bill. That means that a committee significantly changed the bill during its passage through that committee's purview. That this bill says that twice, "CS/CS" denotes that this bill was significantly amended twice. The "HB" reveals that it was ultimately the House Bill that passed. We remember that to pass a law in Florida there must be committee consideration (usually) in each chamber and thus two bills are needed, one in each chamber.

The Senate path for this bill was CS/CS/CS/SB 1158. This started life as a Committee Bill, sponsored by the Fiscal Policy and Appropriations Committee. The nomenclature ("CS/CS/CS") illustrates that three committee substitutes were adopted over its life. It emerged from the committee process, was read twice in the Senate, and ultimately "laid on (the) table" on April 28, 2023 when the Senate took up consideration of HB 487 instead.

That is a great deal of detail and some will fault me for it. I can hear Horace Middlemier now ("Get to the point, what does it do?"). But, the point is that the path from introduction to passage can be challenging, can include significant changes, and can come down to the last days of a session.

HB 487 fixes two serious problems in Florida workers' compensation. The first dawned in the 1980s with an abiding distrust in judges. The Legislature was frustrated with the glacial pace of adjudications and was beginning to show some seeming disappointment with long-standing statutory meddling of adjudications generally. It created the "super doc" for resolving medical disputes in 1991. Section 440.13(2)(h)3.a., Fla. Stat. (1991). I was but a child then, but I recall some discussion of engaging this new process in defense of claims.

That "super doc" effort failed. There was never a list of willing and certified providers. The judges could not appoint a tie-breaking physician under that statute because there were no providers. It was a legislative action without enabling, efficacy, or consequence. I tried the issue once, before Judge Anderson back in the day. I can still see him looking at me with his palms held out before him, upward (a shrug, as if to ask "what can I do") as he noted, "there is no doctor list." 

The Legislature returned a few years later with the Expert Medical Advisor, section Section 440.13(9), Fla. Stat. (1994). The Division soon after deployed a list of willing providers and the age of the EMA quietly began. There was some early litigation surrounding the EMA, Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352 (Fla. 1st DCA 1997); Walsdorf Sheet Metal v. Gonzalez, 719 So.2d 355 (Fla. 1st DCA 1998). Unfortunately, the EMA process' flaws were many. Its expense was significant. Its delays were regrettable.

CS/CS/HB 487 modifies the EMA process very slightly. In fact, it changes but a single word: "shall." Section 440.13(9)(c) is amended as follows (line 485):

"(9) EXPERT MEDICAL ADVISORS.—

(c) If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee's complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims may shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor."

The appellate court explained in Cabrera that the former "shall" was a mandatory requirement. That conclusion of the court was clear (despite there being no statutory language suggesting any consequence of not complying, see Brown v. Pumpian, 504 So. 2d 481 (Fla. 1st DCA 1987); But see Limith v. Lenox on Lake, 163 So. 3d 616, 617–18 (Fla. 1st DCA 2015)(holding that "may" sometimes means one must). 

The court later concluded that no party needed to move for EMA appointment, despite clear rules to the contrary. Rule 60Q6.115(1)(2010). Instead, the court held filing a notice of the conflict was sufficient. Banuchi v. Department of Corrections, 122 So. 3d 999 (Fla. 1st DCA 2013). In a single context, "shall" was exhalted in one instance and ignored in another. 

But, the impact of HB 487 (2023) is seemingly clear. Appointment of an EMA is now permissive. 

The Florida Supreme Court has concluded that “The word ‘may’ when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word ‘shall.’” Fla. Bar v. Trazenfeld, 833 So.2d 734, 738 (Fla. 2002), But see Limith. It is of course presumed that the Legislature knew of that generally permissive connotation when selecting "may." In the event there is any doubt as to the Legislature's intent, the bill description should be of assistance. It states that this bill is (line 21):

"amending s. 440.13, F.S.; authorizing, rather than requiring, a judge of compensation claims to order an injured employee's evaluation by an expert medical advisor under certain circumstances;"

Thus, an excellent tool is preserved for the times when an evaluation is deemed appropriate by the assigned judge. The expertise, presumptive correctness, and impact remain. What has changed is simply that discretion has returned to the judge. Thus, the body of law that explains the need for timeliness of such requests remains, and may impact the exercise of discretion. Further, the law regarding payment of EMAs remains. The shift is not a watershed moment in workers' compensation, but it is an important change to be sure.

When is the bill effective? Well, it is a long bill and there are changes to the Florida Self-Insured Guarantee Association; those are effective January 1, 2024 (line 682), and others January 1, 2025 (line 2904). A portion regarding bail bonds also uses January 2024 (line 2588), but still other bail bond provisions are effective July 1, 2023 (line 2804, 2836), and some not until July 2025 (line 2860).  The provisions regarding fee schedules are specific for July 1, 2023 (line 3363)(see below).

But, as to the EMA change, for which there is no specific provision regarding its effective date, section 77 of the bill controls. That change from "shall" to "may" "shall take effect upon becoming a law" (line 3365). The change, you see, has already become the law when Governor DeSantis signed the bill on May 25, 2023. Is it substantive or procedural in application? Tune in for the second post about this bill, Procedural? (June 1, 2023). 

And, coming soon, the third post regarding this bill, Fee Schedules Revised (June 4, 2023), for the second major impact of HB487. 

As a side note, John F. Kennedy is credited with the quote "Success has a thousand fathers, but defeat is an orphan." Already, there are some taking credit for the end of the mandatory EMA. They are relating stories of their great contributions and striving to take credit for this change. The credit for this change lies with people that will not take credit. The law has been improved, and that is what matters. 

Memorial Day

There is ample debate in this country today regarding government. There is discussion of scope, of role, and of purpose. There are unfortunately a slew of examples in which government of all shapes and sizes has failed undeniably. That indicts institutions and leaders. But, it should never change the way we feel about those who serve the leaders, follow their orders, suffer their failures. The Vietnam conflict taught us that dramatically, as did the traitors who posed on enemy weapons and seditionists that spat on the returning troops, and worse. 

I was reminded recently of the tremendous service and sacrifice of so many. They have volunteered in droves since the last cessation of the military draft in 1973. This year we celebrate 50 years without compulsory military service. Since then, in various uniforms, the volunteers serve in places exotic to mundane, from our own fruited plains to various foreign shores. We pause or strive to, each November in recognition of those who have served. Veterans Day is disappointingly ignored by too many, and too easily overlooked. 

Each May we pause in a more narrow context. Our focus for Memorial Day is directed to those who made the ultimate sacrifice. In grade school, we were taught about the Civil War and the many who laid down life and limb. Following that cataclysm, it became a tradition to emerge from each winter with the tradition of remembrance. Grave markers and cemeteries were rejuvenated in semblance. They were "decorated" and we came to the tradition of Decoration Day each May. In the North and South, so many struggled with the loss of spouses, siblings, and children, at the hands of ourselves, of each other. 

It was once famously said that “all gave some, some gave all." The attribution of that has been to a Korean War veteran, Howard William Osterkamp. In the world of words, his six are very powerful.

Veterans surround us. Many have endured sacrifices and tribulations. A few have served in comfort and safety, well away from the risks and challenges. But, they too have served. Theirs is Veteran's Day. We thank them for their service. Though few businesses recognize that holiday and too few of us pause to even utter thanks. That is sad. May is different. That is not where we focus in May. 

May recognizes the fallen. Statista says we have 1.3 million to mourn. Half of those from the Civil War alone. Those figures are apparently not exact; there are some that appear to be estimations. But, the figures are nonetheless staggering. We might do well to remember the astronomical loss that ensued between us here when temper flared, compromise faltered, and discourse failed. 

I recently attended an interment of a veteran. It occurred to me that it is likely lost on many that various trials and tribulations endured in the service of our nation, fall on those who serve, but also on those that love them. 

A conversation there recounted the familial frustration with military life and a particular duty station. It was recounted that this service member's spouse literally counted down day-by-day to the predicted end of that assignment, and escape from that location. The family does not volunteer, but they follow and endure nonetheless. 

It reminded me that we have no day that memorializes the sacrifice and contribution of those who love the ones who serve(d). This is more disturbing still in the scope of Memorial Day. This day recognizes those who gave all, and far too impassively fails to acknowledge those they left behind. It is impractical to communicate with those who gave all. And yet, there are many that loved them; they linger in our presence. 

Perhaps on this three-day weekend, we might acknowledge them also? This celebration certainly marks the start of summer. It is laden with merchandise, sales, cookouts, and more. But, it is bigger than that. And it is more than decoration. I am not sure when it began to morph into Memorial Day, but that evolution occurred. When Congress acted to shift various holidays to a persistent Monday observance, it codified "Memorial Day" in 1968. It is more than decoration, it is remembrance. 

It is perhaps difficult to state a number like that above with any degree of certainty. There are conflicts that can be described and casualties that can be categorized. But these numbers likely understate the true volume. 

In that moment of reflection this weekend, give a thought also to those who survived conflict and returned. Acknowledgment of those that returned seems more like Veteran's Day, but think about them anyway. Undoubtedly, a significant volume of survivors returned to find disillusionment, disappointment, disconnect, pain, and worse. They carried wounds, exposures, and burdens, which we are blessed to not comprehend. They returned, but their service killed them nonetheless. Their certificates don't reflect it. But the truth is out there for all to see. 

In 2004, the National Park Service added a plaque to the Vietnam War Wall memorial. It reads simply

IN MEMORY

OF THE MEN AND WOMEN
WHO SERVED IN THE VIETNAM WAR
AND LATER DIED AS A RESULT
OF THEIR SERVICE

The park service explains "Since the Vietnam War ended, thousands of Vietnam veterans have died each year due to Agent Orange exposure, PTSD/suicide, cancer and other causes related to their service." Those who served in Vietnam are not alone in that they returned with burdens, challenges, and more.

People are largely enamored with "the wall" now. There are replicas in places like Pensacola (park pictured above) and Wildwood, New Jersey. There are traveling replicas that appear in city after city throughout the year. But I remember when the wall was criticized, the designer ridiculed. There were those who protested construction of that monument forty years ago. They were wrong. There is value in remembering. There is beauty in simplicity. There is catharsis in community.

Inumerable veterans have died here from the scars and exposures of their experiences elsewhere. Despite coming home, some war killed them. Some quicker than others, but killed nonetheless. Many of those that returned were greeted with scorn, hatred, and vitriol by people who lacked the intellect to comprehend them. The protestor and dissident disagreement with their government morphed into disrespect for those who sacrifice, follow orders, and serve.

As we pause in May, let us reflect on the phenomenal volume of rights, privileges, and opportunities, which we enjoy in this country. Let us forget for a moment that there are inequities, inequalities, and happenstance. Fear not that your life has been inequitable and unfair. Everyone's has been. There is dysfunction, pain, and chaos everywhere, whether you see (admit) it or not. Don't fall into the trap of believing your neighbor's life is flawless, or even better than your own. You cannot know what opposition and burden they face, nor are you prescient to compare them to your own.  

Let us focus on the fact that, despite our many challenges, failures, and disagreements, there is more freedom here than there has ever been in the world. There is the blessing of near-boundless opportunities at our fingertips. As we look around the world, acknowledge today's too numerous instances of war, famine, corruption, discrimination, slavery, pestilence, and worse. The world is a place where persecution and worse persist. Let us acknowledge that despite our imperfections, we are truly blessed. 

Those blessings were preserved by those who gave some (recognize them in November) and by many who gave all. Whenever, wherever, whoever - all. Take a moment Monday to recognize how fortunate we each are, and say a prayer for the many that blessed us with the right to disagree so vehemently, sincerely, and completely with each other. And remember the families of the fallen as well as those who suffer burdens we do not see or comprehend. 

Built-in Loneliness Gene?

Nostalgia. It surrounds us. The older we get, the thicker it swirls perhaps.

Remember Mrs. Robinson? For that matter, does anyone even remember Simon and Garfunkel?

"Where have you gone, Joe DiMaggio?

Our nation turns its lonely eyes to you"

Joe was a baseball player. Baseball was a relaxing, some say tedious, method of passing an afternoon. It was once the national pastime, but that time has passed. People used to listen to it on the radio back before there was cable television, satellites, and other modern convenience. That radio was amplitude modulated, more on that another day. 

"Lonely eyes" of a nation looking to nostalgia. Remember . . .? Well the good old days are gone. And, Bill Joel reminds us that "the good ole days weren't always good" (Keeping the Faith, Vinyl, 1983). Nostalgia can be illusory, as Baz Lurhman warned us in Everybody's Free (EMI 1989): "Be careful whose advice you buy, but be patient with those who supply it; Advice is a form of nostalgia."

What a great day we had in Orlando on May 19! We had a great turnout for the first OJCC Workers' Compensation Academy. There were smiles, introductions, and conversations. There was commiseration with our self-imposed isolation and celebration of our reconvening for in-person conversation and proceedings. It reminded me of a recent article from MSN. This was a really exceptional piece about our collective disconnect.

The in-person drive is not new to this blog. I have been stressing our need for community. See When We Return to Normal (May 2020); We're Really Back (April 2021), Little Black Boxes (December 2021); Mental Health (January 2022), and Let's Get Together (May 2023). I have been preaching the need for community and engagement for a long time. 

The MSN article does a much better job of reminding us of the isolation than my May 2023 Let's Get Together, but it shares some points. It makes some exceptional points of its own, with movie references and everything. It suggests that Americans are stoic, self-sufficient, and a bit reclusive as a matter of choice. We "suck it up," do the job, and "ride off into the sunset."

But, is that the reality or just what Hollywood has sold us? The MSN piece picks up on the Surgeon General's recent warning about isolation. It notes some of our societal changes that are contributing factors in this discussion. These include technology, the assault of September 11, and the enforced isolation of the Great Panic. I cannot contradict the perspective, but I would suggest that these changes do not account for all the isolation and stoicism. 

In that vein, MSN draws us back 200 years to the 1800s and the perceptions of observers of this experiment in democracy. Observers back then wondered whether our pursuit of equality would facilitate or encourage our rejection of "the trappings of deep community that had pervaded Old World aristocracies for centuries." That is deep, prescient, and a bit scary perhaps.

According to those observations, Americans naturally see "themselves as standing alone." We perceive "destiny is in (our) own hands.” Well, admittedly there are a fair number waiting around on the sidelines for their lottery win or next government check. Nonetheless, we abandon our history too readily some think, eschew the connections too pervasively, and envision ourselves as independent pillars too persistently.

The MSN author reminds us that there is some myth here. There is stress on the role of community, the necessity of connection. There is emphasis on the role of social, trade, and other organizations in our collective well-being and progress. The suggestion is that we have not abandoned connection, it seems, but merely fallen into other habits.

For most of us, we need not learn new tools to re-engage in the community. We need only recall those tools and the benefits they brought. We merely need to rejoin the in-person community and re-engage. That is encouraging. But, for some, there may be some new skill education involved. 

There are those among us that need to be acclimated to the real world, engaged, and encouraged. They have no social experience to which to return. They grew up in the fake, lonely, and depressing world of social media and all of its failed premises and promises. These folks need more than the opportunity for in-person. They will need a push at least. Some will have to be dragged in kicking and screaming. But we need them to come.

There is no "built-in loneliness gene," according to MSN. We have the tools at our disposal to find "new alternatives to the old myths." We need to prioritize the work/life balance, encourage and facilitate in-person opportunities, and engage with one another. We have to accept that there is room for interaction, discussion and even polite disagreement. That disagreement bit is precisely what lawyers do. As a society, we need to do it more, more graciously, and more earnestly. Many lack intellect, logic, and common sense. We have to listen to them anyway. 

The MSN author presciently notes "Solitude and isolation do not automatically equal loneliness. But they all live in the same part of town." There is no harm in solitude. There is no foul in enjoying your virtual work environment, your quiet family room, your own backyard, pool, or kayak. There is no harm in ice cream, but you cannot make it 100% of your food consumption either.

And a final thought, "Coo, coo, ca-choo" to you too. We are having a live roundtable lunch in Tampa next Friday, June 2, 2023. Be there. Bring someone young with you. Let's reminisce. Let's share some nostalgia (you don't have to buy into it, see above), but listen and share nonetheless. Come tell a story, share a recollection, and ask a question. We need you. But don't get too conceited, you need us too. 

Work Comp Academy 2023

The Work Comp Academy 2023 came off last Friday (May 19) without a hitch. It was billed as bringing over 1,000 years of workers' compensation experience to benefit the next generation in this space. It may have fallen short of that mark with last-minute withdrawals of a couple of speakers, but it came close nonetheless.

It was attended by a spectrum of lawyers from across the state, from Panama City to Jacksonville, and south to Miami. Geographically, this group was as diverse as any. It was split about 60%/40% defense and claimant practice. The response to our invitation was responded to more readily by defense lawyers. It is possible more defense firms hire fresh from law school. It is possible more defense saw the advertisement. But, in the end, this was reasonably diverse.

Faculty? That was magnificent. There were some from the past who linger in the present, and many from the present that will be the strength of our future. And they brought advice, commiseration, and value. They were genuinely and actively engaged with the newer lawyers. There is an honest interest in their success. More on them follows.

The program opened with news from Neal Ambekar. He is leading the formation of an Emerging Leaders committee of The Florida Bar Workers' Compensation Section. That is a noble, worthwhile, and long-overdue effort. The leaders of tomorrow will not emerge if we make it a point to ignore them today. I know the effort it takes to get involved in the practice. I lived it. I would have been so grateful for the opportunity that the Section is creating here.

Paolo Longo introduced the attendees to the Section. He will take over as chair in a few weeks. He overviewed the many efforts to draw people into social and interpersonal engagement. We need to be engaged, and the Section is working on this with Meet and Greet lunches around the state (Tampa is June 2, 2023), Town Hall meetings held virtually, the Forum, and more. This Section is active and eager to engage.

Finally, William Rogner spent a few minutes talking with them about the Section Trial Advocacy Program next May in Miami. They do this every other year. They provide a hands-on trial experience with challenging facts, difficult legal issues, and real judges. If that is not enough, imagine getting critiques from some of the legends of this practice.

If you did not know, the DOAH also has a trial academy each winter in Tallahassee. The food is almost as good as it is in Miami, but the temperatures are a bit cooler. It is a similar opportunity for a trial experience complete with many judges, seasoned attorneys, and challenging legal issues. The best part of the DOAH experience is that it is free. That is a great price.

The organizers of the Work Comp Academy last week were:

• Natalie Cavallaro
• Ana Gonzalez-Fajardo
• Hon Margret Kerr
• Lindsay Koppelman
• Javier Melendez
• Tara Pachter
• Hon. Neal Pitts

We are grateful for their attention, patience, and contributions. It would have never flown without them. We are likewise grateful for the careful preparation and tutelage of the faculty. I pointed out several times during the day that the faculty was confabbing in the hallway during the opening session on professionalism. I apologized to the attendees for the noise. But, I stressed that they could learn from that. 

What can we say about these varied and diverse folks from all over Florida? They like each other. You gather them and they talk, laugh, and commiserate. Their persistence (I kept shooing them down the hall and shushing them and they kept coming back) and their engagement speaks volumes for this community. 

They like each other. They got together in this environment and it was like a family reunion (without the fried chicken, deviled eggs, and aunt sally's coconut creme cake). It was like old home week. It was enriching, empowering, and rewarding. I appreciate their presence and contribution. But I really appreciate their sense of community and commitment. We are truly blessed. The faculty was:

• Catharine Frances Agacinski, Esq.
• Holley Akers, Esq.
• Judge Wilbur Anderson
• Judge Brian Anthony
• Judge Robert Arthur
• Courtney Collins Bahe, Esq.
• Caitlin Beyl, Esq.
• John Paul Brooks, Esq.
• Jessica Carrier, Esq.
• Judge Barbara Case
• Natalie Cavallaro, Esq.
• Amie DeGuzman, Esq.
• Linda Farrell, Esq.
• Ana Gonzalez-Fajardo, Esq.
• Karen Gilmartin, Esq.
• Kristen Gottfried, Esq.
• Silvia Maria Hoeg, Esq.
• Judge Jill E. Jacobs
• Daniel Todd Jaffe, Esq.
• Judge Margret Kerr
• Ryan Michael Knight, Esq.
• Lindsay Jo Koppelman, Esq.
• Judge Sylvia Medina-Shore
• Javier Melendez Santiago, Esq.
• Gary Alan Miller, Esq.
• Judge John Moneyham
• Ivan P Morales
• Tara Pachter, Esq.
• Judge James “Pete” Peterson
• Judge Neal Pitts
• Barbara Richard, Esq.
• Grethel San Miguel-Callejas, Esq.
• Judge Lourdes Sancerni
• Judge Megan Silver
• Carolyn “Lyn” Slowikowski, Esq.
• Judge Timothy Stanton
• Dawn Traverso, Esq.
• Judge Rita Young

Jon Wheeler

I hate these posts. I am compelled and driven to write them but hate these posts. 

In January 2022, I marked the passing of Judge Dietz. I admired him and his quirky humor. I noted then the death of several others such as Douglas Myers, Jack Langdon, Bob Barrett, and Hon. Joseph Farrell. I am tired of these events and feel the weight of age each time I sit to pen one. It is a cost and burden of becoming old, seeing your friends and peers pass from this earth. 

I got an email several weeks back. It advised me that Jon Wheeler was not doing well. I have known former Clerk Wheeler for several decades, and that was bad news. It seemed like only days thereafter before I received word that he had passed. 

I suspect many will not remember Jon. He retired from the Court in 2017 and faded into his favorite pastime, supporting FSU sports. I heard of his travels (family mostly) and retirement through mutual friends but lost touch with him as the years passed. Certainly, COVID did not help in the "keeping in touch" realm either. 

I ran into him early in my career and found him somewhat larger than life. He was the Clerk of the Florida First District Court when I wrote my first appellate brief. I sent it to the Court on the final day before my deadline, by overnight delivery. But, I made a technical error. I was proud when Mr. Wheeler called me personally to compliment my prudence with the delivery method and embarrassed by his explanation of my very simple error. He helped me rectify my mistake and was patient and kind in doing so.  

Jon was sometimes sarcastic and even sardonic. He was persistently outgoing and helpful though. I recall another instance I became involved with in my early career. A senior lawyer and I disagreed on a rule interpretation. I suggested we "call the Clerk." The older lawyer mocked me and advised quite imperiously (1) that the Court Clerk would not take my call and (2) that I was being naive. Guess who took the call, listened patiently to a very new lawyer, and provided sound and patient advice? Guess what an old lawyer's face looks like when an authority figure behaves with grace, poise and patience?

I did a fair number of appeals in my practice. Hint, it happens when you lose a lot at trial. I was likely someone the various clerk staff at the Court had a few laughs about. What I lacked in talent and intellect, I sometimes partially made up for with energy and persistence. Other times, I likely just frustrated those poor clerks. 

I have two more very vivid memories of Jon. The first involves the Legislature's 1994 decision to compel the Court to have oral arguments via video conference. The Court was tied into a network of video facilities owned by the state. The oral argument notice told us where to go and when. I was comfortable in my office one morning in lovely downtown Ponte Vedra (back then, that was two grocery stores, a gas station, and a couple of restaurants). The phone rang, and it was Clerk Wheeler calling.

He said, literally, "Mr. Langham, where are you?" Keep in mind folks, back then most phones were connected to the wall with a wire. You could walk around with it but could not leave the building. Cell phones existed, but they were expensive (we paid by the minute), analog, and people rarely shared their numbers widely. Thus, he well knew where I was, and I found the question confusing. 

As I sputtered and strove to respond, he clarified "You are supposed to be in an oral argument, the judges are on the bench, where are you?" Fortunately, the case was not mine. I was listed on the paperwork, but my partner was handling the argument. Jon and I worked together and soon learned that all the lawyers were in a hallway in downtown Jacksonville. They could see the bench through a narrow window in the locked door. With some effort, the bench managed to bring the camera to see that little window and the frantic lawyers. I would not have wanted to be on the other end of Mr. Wheeler's next call to the Jacksonville building manager. 

Years later, having worked on many projects with Mr. Wheeler, I ran into him one evening in a hallway at the annual workers' compensation conference. He was adorned with his nametag, dressed in a Hawaiian shirt, and wore several bright, neon "glow sticks." I remained in my usual suit and tie. We paused for a moment, and I asked him if he was having a good time. He complimented the food available in a particular suite down the hall, and said to me "You should get some, and try to lighten up a little." I guess my face did not reflect comprehension as he dryly and critically added "Lose the tie judge, office hours are over." After a short pause, he added "live a little."

I am fortunate to have known Clerk Wheeler. I enjoyed his stories of the Air Force, the Judge Advocate's office, his family, the Court generally, and the challenges of implementing e-filing there. Many may forget that the First District led the way to appellate e-filing, and he deserves some measure of credit. Many may forget that Mr. Wheeler was a person who got the job done. 

He was persistent and insistent. He was collaborative and helpful when asked. However, he did not suffer fools lightly. I learned much from him over the years and am troubled by his passing. My thoughts are with his family, and all who were touched by his professionalism, friendship, and presence. Goodbye, Jon. "May the road rise up to meet you," may the good Lord keep you. You will be sorely missed. 

The following are thoughts shared with me in recent days

• Impish smile.
• Passed after coping with a nagging illness.
• Clerk for almost 30 years. After retiring from USAF as a JAG Colonel in the Pentagon.
• Avid, almost fanatical, FSU sports fan.
• FSU Law Grad, in the first charter class.
• After retirement, he devoted time to his family and grandkids.
• Supported the annual educational efforts of the OJCC with appellate tips and stats. And managed the First DCA oral arguments during the annual WC conference in Orlando.
• Very nice, professional, and just a good person.

Word quickly spread, and the dreaded "reply all" began. My inbox was periodically populated throughout the following days with emails from legends in the world of Florida workers' compensation. Tales were related, accolades expressed, and condolences offered. The following excerpts are from some of those, reprinted here with permission.

William Rogner noted:

Jon was a big part of my development as a young appellate lawyer. He always greeted the attorneys before oral arguments and put them at ease. He demonstrated the mechanized podium and walked us through what to expect once the “all rise” was called by the marshal. He knew that we were nervous and he wanted to help us do our best. Later, he would call me and run ideas by me and he seemed to value my feedback. He was also very important in the development of the relationship between the Court and the Section. Without Jon, I doubt we would have ever developed the tradition of holding oral arguments in Orlando twice a year.

Of course, he was a military man and that part of him never went away. I once had a 2 p.m. argument and I decided to take the early morning flight from MCO that would get me to Tally at 8am. As luck would have it, the Tally airport was fogged in and my flight kept getting delayed. Fearing I might be late I called Jon and asked him what could be done. His reply was essentially, “Mr. Rogner, I suggest you find a way to get here on time or it will be a very one-sided argument.” 

Fortunately, I did catch my flight eventually and later sprinted into the old 1st DCA building (after parking remotely as was required), covered with sweat, at roughly 2:30pm. Fearing the worst, I soon discovered that Jon had moved me from argument #1 to argument #3 for the afternoon session, which gave me several minutes to calm myself before presenting my case. I recalled that story with him several times in subsequent years, explaining to him that after that day, I never arrived in Tally on the same day as my argument.

Hon. Stephen Rosen (Ret.) noted

I got to know Jon in the early 1990s and then we still remained friendly several times a year after the 1993 significant legislative changes to Chapter 440. Then when I became a JCC we would see each other at least at the annual convention in Orlando. He had a wicked sense of humor often filled with sarcasm and a contagious laugh. One time, about 2013 or 14, he said "Steve I saw they reversed you AGAIN but don't take it personally." I missed him when he retired and I will miss him even more now. Great guy, great administrator, great loss.

The Postman Rings?

It all started when some fellow from the federal government showed up at my office. We were initially surprised and somewhat taken aback. He explained that response is not uncommon. He was here to bring us something called "mail." This involves someone putting pen to paper, applying a stamp and address, and providing this all to the government. They truck the paper all over the place, sort it, and then deliver it. Right to your door, I kid you not. 

It became apparent to me from my conversation that this fellow does this on a daily basis. There are apparently some people that do a lot of this paper sending. He explained that much of it is "junk" and that it should not concern us if we do not see him for long periods. Somehow, the fellow looked like Kevin Costner to me, but I cannot place why. 

Facetious? Guilty. 

But, the Postman does not always ring twice (great title, but the film is not even about mail, go figure). It is rare that we see a Postman at all. The days of paper are behind us. Us dinosaurs lament it, but we understand it nonetheless. 

What did the Postman deliver? 

I had received an email several weeks back. A law school was having a competition for first-year students. They were delivering closing arguments in a mock trial setting. They wanted volunteer judges, and I am a sucker for students. So, I clicked to volunteer. 

That was a lesson in itself. I learned about an app that lets me read shared spreadsheets on my phone. I learned how to make alterations to this sheet in the cloud, and add my name to the volunteer list. I am struggling with evolving technology, but it is so worthwhile to be challenged and to learn. The young people running that competition forced me to grow. God bless them.

I tuned in as instructed, scored the round, and took some time to provide feedback. Both of the competitors were well prepared, and had memorized their material. Both were somewhat nervous and seemed to dislike the virtual experience a bit. Each was outstanding overall but had some elements that might benefit from some further work. In all, I was impressed, proud, and encouraged.

That was weeks ago. This was in early April. The experience had slipped my mind after a few days. I remembered to wonder a couple of times if one of the students I mentored had progressed or even prevailed. But, it was all soon relegated to the warehouse in the back of my head as new challenges took on my daily attention. 

Then this Postman showed up out of the blue. The envelope (a contrivance of paper folded and pasted for the sole purpose of containing and conveying another piece of paper) was addressed by hand, in cursive, with an ink pen. That was intriguing. It contained a simple card with a reminder of the "1L closing argument competition." It said "your feedback was very encouraging and I am very grateful." 

You guessed it, it made my day. 

The week after, this Postman showed up again. This second envelope had my name printed on it, in ink. They say many young people do not write in cursive anymore. I get it. Where were the anti-cursive forces when I was in school? This one was a pre-printed "Thank You." Inside it acknowledge my volunteering and said "I found your advice to be helpful," and closed with "thank you."

I doubt either of those cards took more than 2 minutes. I suspect that in their own day-to-day neither of those students will look back much on the 30 minutes we all spent together on Zoom. I doubt sincerely that I provided any real wisdom that will alter the trajectories of two young lives. In short, they each did more for me than I did for them.

That said, there is a glimmer in the dark recesses of my mind. I am hopeful that they wrote because they deemed it the right thing to do (not just because someone said to). I am grateful that someone likely did suggest it; that means that teaching is not dead and law school is doing more than teach technical and analytics. Courtesy, you see my friend, matters. Cordial and careful communication is a powerful tool.

I was deeply touched by the occurrences, the deliveries of these notes. I was impressed that someone would take the time to say "thank you." I was enthused (again) that tomorrow's leaders are showing such promise, poise, and persistence. I was pleased and compelled to write this down. 

How much can you accomplish with a "thank you?" How much can you do with a simple card? What does it say about you when you take the time? Our focus this year has been on professionalism. I experience it every day, and hope you do also. But, these two examples are noteworthy, empowering, and special. I hope every one of us learns a lesson from their example. I have sent a link to this post to the Dean of that school. It is my hope that every dean is receiving similar positive feedback recognizing those who will replace us all, and the careful hands that guide them. 

Let's Get Together

I landed last week at Southwest Florida Airport (RSW). They are celebrating 40 years. Imagine that in 1983 Ft. Myers' airport opened. Don't misunderstand, the town was there long before. The old timers will reminisce occasionally about Page Field. There may have been some romance to that old spot, but their recollections may also be shaded a bit by nostalgia and denial. 

Ft. Myers in the springtime. There is construction everywhere. Sure, the winter crowds had eased by mid-May. The Hoosiers and Buckeyes have migrated back north. Sure, there are the lingerers. The town is not deserted by any sense of the word, but the congestion is decreased. Did I mention that there is construction everywhere? 

Quick Ft. Myers joke - How can you tell when the seasons change in Ft. Myers? That's easy, the colors on the license plates change. 

Ft. Myers was hit pretty hard in September 2022. Ian arrived with a fury and delivered significant devastation around town. It was one of those modern hurricanes that somehow devastated one house or side of a street and ignored others. It was described to me by a local as "surreal." The explanation was visibly difficult, stilted, and halting. The residents of the area were traumatized and impacted. by the storm or its sequela.  

As I reflected on that conversation, I realized he described Ian much as I had Ivan so many years before. Most Floridians have a storm they remember. Sure, we recall many. We discuss many. But, we each seem to remember a particular one. We each have our hallmark, our nemesis. It is the one that we somehow dodged, lived through, and reflect upon. Over Ivan? No. I understand the sentiments and emotions. The Ian survivors are recovering, as did the Michael survivors before. They will progress and time will pass. But they will likely remember nonetheless. 

We are accustomed to hurricanes in Florida. Not accepting. Not welcoming. But we are accustomed. We live with them in our thoughts. We wonder what is coming next, and we persevere, we rebuild, and we prepare for the next one. See Its that Time Again (April 2023).  

I was in Ft. Myers for a lawyer gathering. This all started in December with a roundtable program in Orlando. The tip of the spear on that project was Paolo Longo, who will soon take the helm of The Florida Bar Workers' Compensation Section. The idea is an informal lunch. There is camaraderie and conversation. The judges rotate from table to table or room to room. There is collegiality, reminiscent stories, questions, and community. That last is the key, community. 

The Orlando event in December was wildly successful, drawing more than 50 lawyers. There is a palpable desire to get back to the face-to-face. The success was noted, and plans began. Mr. Longo and Judge Humphries produced a great gathering in Jacksonville in early April. Ft. Myers last week was the third example, thanks to Mr. Longo and Judge Weiss. Tampa remains in June, and then a hiatus is predicted until the writer's strike is over. You don't think we make this stuff up ourselves do you? Seriously, we will break for the summer and all that entails with family, the WCI, and more. 

But first, we will be in Tampa on June 2, 2023. This event is at the workers' compensation office at noon. Thanks to Judge Arthur for his effort on this iteration. No, there is no agenda. Yes, everyone is invited. No, there are no power points. Yes, any questions you bring will be addressed. That is not to say everyone will love the answer(s) perhaps, but there will be an answer. 

This is a great opportunity to rejoin your community. It is high time we appreciate our community, The workers' compensation professionals have a great deal for which to be thankful. And though there are some perhaps eclectic community members, it is a very collegial group to engage with, to practice with, and to enjoy. 

The pandemic should remind us of the importance of community. The experience of our neighbors with Ian should remind us of our interdependence and community. We should be celebrating the fact that this practice survived and thrived in recent years while other practices, communities, and jurisdictions failed, utterly. We persevered. Come join us for a light-hearted and interactive gathering in Tampa. Let's talk about what is right (or not) in Florida workers' compensation. 

The opportunity is important. The need for us to be face-to-face is critical. We are, at our core, a simple community. We need to appreciate each other, our contributions, our successes, our failures, and our interdependence. We need to gather and focus on how we can be successful today, recruit and retain the best for tomorrow, and build a new future. I hope to see you there. 

Tipping again

There is an evolution in the working world, or at least the consumer is perceiving it. Tipping (February 2023) is seemingly on the rise. And even in environs where it is traditionally anticipated, it is possible that the ask is becoming more profound. From a perspective discussion, I have worked for tips in my day, bussing, serving, and delivering. I know the challenges well. 

Some pontificate that 15% is normal for good service in a restaurant, and 20% is for service that is above average. But it is seemingly normal now to be handed a check with a "suggested" tip amount that ranges from 18% to 25% (I have seen some that are higher). Kiosks for payment seem to make higher suggestions still. 

U.S. News recently reported the same range of 15%-20%, but cautioned this should be calculated on the full bill, "not any discounted rate you might receive." That is intriguing as I regularly patronize a local restaurant. Their practice is to print 15%, 18%, and 20% amounts on the check. But, after several instances, I realized their math is always wrong. A little work with my calculator revealed this restaurant calculates those amounts on the pre-tax check amount, leading to tip suggestions that are lower than my habit of using the gross check total. That is curious. 

U.S. News suggests the same range for rideshare drivers or cabs, and for hair and nail professionals. I recently had a haircut and the provider's website was intriguing for several reasons. First, I was herded repeatedly toward pre-payment for the service. I eventually found a way to make an appointment without paying, but the web designer made that very challenging. Their default and desire are that I pay first. They also stress that appointments may not be canceled. 

In addition to wanting pre-payment, and confiscating it if canceled, the website sought pre-payment of the tip. The point of a tip is to reward industry and good service. I had never been asked to tip for services as yet not rendered (though I recall the big pizza industry sites all ask that now as well). The tip range requested on this hair appointment was 30%, 40%, and 50% of a $25.00 haircut ($7.50, $10.00, and $12.50). That seems like a great deal more than normal. Pre-paying seems a bit "extra." The whole experience was frankly a turn-off. I vowed to find a more traditional barber shop. 

I did not pre-tip or pre-pay. I got a "good" haircut (you cannot make me look nice, but you can do your best with what I have). But, coincidentally, the entirety of my visit was punctuated by the hair professional's conversation with a coworker over the subject of tips. It was impossible to avoid and difficult to ignore. No, I did not leave a 50% tip. Cheapskate?

When did we start tipping people in advance? The Conversation reports that customers do not like being asked about tipping before they are served. And, in a revelation that was perhaps utterly unpredictable (sarcasm), their survey concluded that "participants viewed pre-service tip requests as unfair and manipulative." Could not have seen that coming. I have stopped tipping at self-service encounters even when they are polite with the "it will ask you a question, then you insert your card." 

More important for the business and employees, those tip tools "reduced the likelihood that (consumers) would become repeat customers." Yes, we are perhaps less likely to return to places that make us feel uncomfortable, unappreciated, and unwelcome. Who could have seen that coming? Aren't we lucky to have blog posts like this so that we know we are not alone in our angst and discomfort?

Business Insider recently reported that customers are becoming fed-up with tipping. There are "self-checkout" machines throughout our daily lives, and those machines are more frequently and persistently begging for money. Machines lack dignity and they lack shame. They simply ask. You can get a computer to do just about anything. While it panhandles for you, you don't have to look people in the eye. Perhaps that detachment is what enables the big ask? Mahatma Ghandi is credited with "if you don't ask, you don't get." I never knew he was a computer programmer.  

Consumers are noticing that these tip campaigns are purportedly to support employees with whom they have no interaction or experience. The entire transaction is self-service and with a computer touch screen, and yet there is some expectation that we will provide some extra income for some unnamed, unseen, and unknown store employees somewhere. Are we to be guilted into supporting this phantom?

What is amazing is that the Insider story quotes work of the Wall Street Journal indicating some of you are actually tipping the computers. Though customers express confusion as to "who I was tipping," they still tip anyway. Without any clue as to the service received, or the value added, they pull drinks from "self-service" kiosks and pay a computer, but they add 20% for the great service. And I cannot somehow shake P.T. Barnum from my thoughts. 

Dr. John Bridges is credited with the old saw (1587) "a foole and his money is soone parted." Comedian Steven Wright is credited with asking much later "How did a fool and his money get together in the first place." Each seems a fair inquiry. I am thinking of setting up self-service kiosks around town with the simple plea "Won't you please give 30% today to help?" Who knows, if you will pay 20% for getting yourself a beer or water, who is to say you won't give more for even less. Perhaps we are just hard-wired to want to help? (Yes, perhaps it is fair to ask "Help who?").

The results of the Journal survey are surprising. That people are tipping out of guilt, shame, or ignorance is intriguing. One in New Jersey characterized the current trend as a "bit of emotional blackmail." It is not Sally Struthers or Sara MacLachlan, but perhaps it is not so far off? "Won't you please help pay our staff by adding 30% to the $6.00 bottle of water you just picked out of our cooler?" An amazing element of the story is that no one seems to quibble with the $6.00 bottle of water. Are you kidding me? Well, as Gandhi says . . . .. But tipping someone unseen $1.80 on your $6.00 water because a computer asks you to?

The tipping trend is here. Landlords are reportedly asking for tips, as are electronic store workers. As yet, the professions are not (that I know of). U.S. News reports the following are service providers that are not "ty[ically tipped":

• Accountants.
• Financial advisors.
• Lawyers.
• Medical professionals.
• Mechanics.
• Home repair workers.
• Teachers.

Where does this all leave me? Well, it is not at the doorstep of a 50% sight-unseen-service tip. I might drop a tip of that magnitude, but it will not be in advance of the service (and I will be really impressed; call me cheap if you wish). After my last Tipping (February 2023), I heard some joking about judges, doctors, and lawyers with tip jars. It was preposterous and funny. But, one might validly ask where this current trend is heading. We may very soon long for more stores where employees (or computers, robots, etc.) wear nametags that include "no tipping, please."

Will the trends continue? Will any employers eschew the tipping and pay a living wage instead? Will we be guilted into paying or will the workers be cheated of their due? It is complex and unfortunate from various perspectives. 

Limited Appearance

In the world of Florida legal practice, an attorney can become part of a case by filing. The Florida Rules of General Practice and Judicial Administration (Fla.R.Gen.Prac.&Jud.Admin.) provide parameters regarding appearance. Rule 2.505. There are similar provisions in the Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications (Fla.R.Pro.Work.Comp.). There are some distinctions. That is a reminder that Florida Court rules apply in workers' compensation only when specifically incorporated.

We see that incorporation in Rule 60Q6.126, which subjects disqualification of a JCC to Fla. R. Gen. Prac. & Jud. Admin. 2.330. We see that incorporation in Rule 60Q6.114 and its multiple references to "Florida Rules of Civil Procedure." There are instances in which knowledge of those court rules is critical in the workers' compensation practice.

The Fla.R.Pro.Work.Comp. do not incorporate or reference the court rules as regards the appearance of counsel. Rule 60Q6.104 provides that "An attorney who files a petition or claim on behalf of a party has entered an appearance." This is similar to the court rules regarding a "first pleading," see below. However, in workers' compensation, this is only as to "petition or claim." Thus, for the defense in workers' compensation, a notice of appearance is necessary ("all other attorneys"). This distinction is tied to the statutory requirement for the employer/carrier to file a response to the petition, section 440.192(8). Thus, it is perhaps rare that an attorney files the "first pleading" for the employer/carrier.

Rule 60Q6.104 proceeds to delineate the process for content and service of the notice of appearance, as well as the substitution and withdrawal of counsel. The rule is seemingly straightforward and reasonably direct. Unfortunately, a fair number of attorneys each year struggle with the process of ceasing representation. This comes down to, essentially, either stipulating with another attorney (no judicial approval required) or filing a motion.

It is noteworthy that there is no provision in Rule 60Q6.104 for "limited appearance."

Florida practitioners have been watching the amendment process regarding the Civil Procedure Rules. One recently emailed me about a Florida Bar News article "Board Of Governors Moves Rule that Would Allow ‘Limited Appearance Attorneys.’" That has raised some questions. Notably, however, the appearance of counsel is covered by the Fla.R.Pro.Work.Comp., and without any reference to the court rules for which the amendment is being discussed. That means, in effect, this change is not of much concern in Florida workers' compensation. 

The appearance of counsel in court cases is in Fla.R.GenPrac.&Jud.Admin. Rule 2.505(e). This equates the filing of any "first pleading" for a party as a notice of appearance, as well as enabling the filing of a document actually titled "notice of appearance." The rule proceeds to deal with the issues of substitution of counsel and more. The current discussion is as regards paragraph (5):

"Notice of Limited Appearance. Filing a notice of limited appearance as permitted by another rule of court."

As the recent Bar News article notes, this is an enabling provision, that the article says was added to the rules after 2016. It is notably dependent upon "another rule of court." When the original Rules of Judicial Administration were promulgated in 1978, the purpose was "consolidation of the rules of judicial administration contained in" various other rules. In re Fla. Rules of Jud. Admin., 360 So. 2d 1076 (Fla. 1978). 

The enabling process in paragraph (5) seems to invite diverse potential for "limited appearance." The consistency sought by the Fla. R. Gen. Prac. & Jud. Admin. concept is perhaps subject to frustration as other "rule(s) of court" may now treat such limited appearance differently. That may not be a detriment. Certainly, the workers' compensation rules are different as this practice is different. It should perhaps not be challenging for the lawyer to know which rules to consult and to accept that differences will exist. 

Nonetheless, the Florida Bar News article notes that there is a "recent focus on expanding court access," and that the perception is that access is facilitated by "limited appearance attorneys.” Thus, a unanimous Civil Procedure Rules Committee has endorsed adding such a provision in Civil practice. That recommendation was approved by the Florida Bar Board "overwhelmingly." Bar leaders are quoted concluding that "This is something we should be doing to promote access."

The proposal will travel to the Supreme Court for consideration. The new Rule, Civil Procedure Rule 1.041, may soon provide that

“An attorney may file a notice of limited appearance specifically limiting the attorney’s appearance to particular proceedings or specified matters.”

This will purportedly allow the parties in a case to "unbundle" the controversy or dispute, and to hire counsel for some limited portion of that overall dispute. This is not new. Limited notices are discussed in Gustafasson v. Levine, 186 So. 3d 562 (Fla. 4th DCA 2015)(Family law), Lindsey v. Lindsey, 958 So. 2d 1025 (Fla. 5th DCA 2007)(Family law); and McDaniel v. FirstBank Puerto Rico, 96 So. 3d 926, 927 (Fla. 2nd DCA 2012)(Civil).

The concept is likewise not novel in workers' compensation. Some attorneys have filed documents titled "limited notice of appearance" in a variety of workers' compensation actions. They have striven from the outset of representation to limit the duration or scope of involvement. Several have crossed my desk. None have cited any authority that would (1) allow such a limited notice in workers' compensation, or (2) relieve the attorney of the responsibilities that are set forth in Rule 60Q6.104.

There are times that a lawyer appears in an OJCC case with no intention of providing representation before a JCC. They are appellate counsel and are interested primarily in a greater awareness of the trial proceeding, and having access to the various pleadings for the purposes of their representation in the appellate action. This may also be in preparation for an anticipated or at least hoped-for outcome that includes a remand to the JCC for imposition of appellate fees. 

One attorney even filed a "limited notice" in a case with which the lawyer had no visible or stated connection. He had no client to represent in that case. He apparently found the case interesting and decided to access the filings in the case. Notably, he might instead have requested the public records. Instead, he chose to file a notice of appearance. But, Rule 60Q6.104 is clear. 

(1) Appearance of Counsel. An attorney who files a petition or claim on behalf of a party has entered an appearance and shall be deemed the party's attorney of record. All other attorneys appearing for a party in an existing case shall file promptly with the judge a notice of appearance and serve copies on all other parties or, if represented, the parties' attorneys of record. The notice of appearance shall include the style of the proceeding; the case number; the name of the party on whose behalf the attorney is appearing; and the name, mailing address, e-mail address, telephone number, and Florida Bar number of the attorney. (Emphasis added). 

There is no "I find this interesting" grounds stated for a notice of appearance before the OJCC. The notice is only "for" or "on behalf of" some party to that case. The filing of a notice of appearance is constrained by this rule. It is unclear what other authority might support such a limited notice of appearance. 

How will the new civil rule impact workers' compensation if it is approved by the Florida Supreme Court? It will not. The easy answer is that the Rules of Civil Procedure apply in workers' compensation only to the extent that the Fla.R.Pro.Work.Comp. incorporate or adopt them. There is no adoption for "notice of appearance," and instead the Fla.R.Pro.Work.Comp. has a specific rule on that topic. 

That said, whether a contract of representation might limit the scope of the relationship between a party and counsel remains. The contractual agreement is between those, and such agreements need not be approved by this Office. Section 440.34(1)("The judge of compensation claims is not required to approve any retainer agreement between the claimant and his or her attorney"). 

Thus, perhaps such an agreement could limit the scope or duration of representation. Perhaps such an agreement could be cited as grounds for a motion to withdraw? That said, the provisions of Rule 60Q6.104 nevertheless apply to counsel in workers' compensation proceedings, and withdrawal will be necessary if representation is to end, whether the cause or reason is known in advance (contract) or arises unexpectedly in the course of the relationship.

It is notable that many attorneys withdraw from cases each year. We see the motions by the hundreds. There are rarely reasons stated, and there is often disappointment, anger, and confusion expressed by the client. Some struggle to accept that there is no legal mandate that makes anyone work for another, or hire another. These are voluntary involvements that result from, persist because of, mutual assent. Lawyer and client must agree to be in a relationship, and either may end a relationship. 

That said, perhaps if a lawyer has no intention of proceeding beyond some point, there is merit in specifying that in the contract? Despite there being no such "limited notice" in workers' compensation, would the contract term, as a basis for withdrawal, make the ending of the relationship more predictable, more expected, and better understood? As the Supreme Court takes up this new rule proposal, perhaps it is all food for thought.

Rudderless Ship of Chaos

Back when I was first appointed to the bench, I had a senior judge confide in me the belief that "half this job is showing up." There was a spirit of absence in the 1990s that infected parts of the OJCC. We had judges then, and unfortunately, since, that did not see this as a full-time vocation. They were too often absent from the responsibility, late to work and scheduled proceedings, and generally not known for their timely and persistent attendance. It sometimes took years (literally) to get a trial order. It was an embarrassment and a tragedy. 

That is not to say one cannot have a day off, or leverage the modern technology to telecommute. We have had some necessity of that in recent years. Lawyers, doctors, adjusters, and yes judges have striven to keep the system running in the face of the great panic. But long before that, we had some challenges. "Just show up, Dave." It was great advice. And, just like we are all permitted a "day off," let's give ourselves a break and admit we can also have an "off day." 

A corollary of showing up has resonated since high school: "Follow instructions." The teacher would make an assignment and we would perform the task. If that was to write a paper, we did so. If there was to be a test, we showed up. Late work was not accepted in those days. Absent a note from a doctor, a make-up effort was not an alternative in those days. Flunking still existed, and the days of "social advancement" and widespread grading malpractice had not arrived. There were stricter standards and less flexibility than we see today. I have been a college instructor for over 20 years. And unfortunately, I see a lot more expectations of accommodation today. 

At the end of the day, you have to get the job done. Since college, I have kept an ancient piece of papyrus (we used to write on it back in the day) that reminds me of a Henry David Thoreau quote:

“It is not enough to be industrious; so are the ants. What are you industrious about?”

Right behind it in my folder of thoughts is a quote by William McFee:

“The world is not interested in the storms you encountered, but did you bring in the ship?”

Get the job done. Forego the excuses and the self-pity. These thoughts of performance and function came to me recently when I read of a tragedy occurring up the country. It has nothing to do with workers' compensation, but this blog is about the law and judges, and this story struck a cord. The St. Louis Post Dispatch reported recently that a judge "will appoint a special prosecutor to build a contempt case against" the elected prosecutor and "one of her assistants." The prosecutor?

The prosecutor's office is being referred to in the press as a "rudderless ship of chaos.” The prosecutor is accused of "complete indifference and a conscious disregard for the judicial process." Although recently summoned to a show cause hearing, the prosecutor did not appear to answer regarding the failure of that office to perform effectively. Instead, another employee of the office and the prosecutor's attorney appeared. The judge, it is fair to say, was less than impressed. Is there accountability in the legal system?

There are broader concerns apparently. The Missouri Attorney General has "filed a lawsuit seeking (the prosecutor's) removal." The poor attendance by attorneys in the office has allegedly led to the continuance of important trials. There have been excuses tendered that involve schedule conflicts, poor communication, and an attitude of complacency (at best). One attorney glibly excused a tardy appearance with "Many people regularly show up late," and "It’s really not unusual.” We might all say that about anything. "many people fail, it is really not unusual." What an indictment that seems - of the lawyer, the prosecutor's office, and the spirit of abject failure.

Unfortunately, the latest instance regarding this prosecutor's contempt is allegedly not the first. A judge had begun contempt proceedings only a week prior regarding the prosecutor's office's failure to present as noticed "for the first day of a murder trial." The workload, staffing, and process are perceived by that official as daunting. In any process, circumstances may get the best of us. But the judge concluded, “It does not appear (the prosecutor) has made any reasonable efforts to prevent the resulting chaos.” Is that too much to ask, a "reasonable effort?"

"It is not enough to be industrious," "Did you bring in the ship?"

Judges filing contempt against the prosecutors? Lawyers not showing up for trials? Lawyers not communicating their challenges and scheduling conflicts? In this nation, there was once respect for the law, and perhaps even reverence. In this world of ours, there are responsibilities and challenges. We will each make mistakes and have failures. What are the real lessons from the St. Louis story? Fortunately, they are simple:

1. Each day you will have too much to do and too little time.
2. Your failures to be omnipresent and perfect (we are human) will affect more than you.
3. Don't try for "perfect," it is illusory and self-defeating.
4. At a minimum, communicate with those affected people, and respect their time. Appreciate their disappointment and dismay.
5. Find a way to deliver on your promises. If you cannot, find help.
6. If you cannot find help, cannot deliver, or are otherwise not up to the job, then step aside and allow someone else to try (before the Attorney General sues to remove you).
7. In the sacred trust that is the legal system, the duty is profound, the stakes are immeasurable, and the public deserves the best (effort). 

It has taken a great deal of effort for the OJCC to evolve. Our success has been the product of a great many people who have struggled with incredible workloads, deadlines, and challenges. They, we, have been at times imperfect, slow, and unresponsive. But, we have also been unforgivingly focused on reflection, innovation, and individual and collective self-improvement. Knowing we cannot achieve perfection, we have made a goal of doing better each day. It has worked. The twenty-first century OJCC is amazing in its function, efficiency, and esprit de corps. 

Too often, modern lawyers lament our present shortcomings and failures because they are blessed not to remember the 1990s. Know ye all by the presents, that much progress has been made. It will continue. We will innovate, improve, and produce. We will not be perfect. I encourage you to tell us when we fail so that we can preclude ever falling into the disarray and embarrassment described in St. Louis. I encourage your suggestions, comments, and criticisms. 

"It is not enough to be industrious," "Did you bring in the ship?" How can we do better next time?