Dope in the News

Edification and explanation were recently delivered by Florida’s First District Court of Appeal. An interesting challenge was brought before it regarding the use of pot. According to WCJB20 in Gainesville, a correctional officer was subjected to a random drug test, and tested positive for pot use. It was mistakenly reported by America's fourth estate that this was subject to a prescription, and the word "medicinal" was used.  

These mischaracterizations are not new, nor isolated. They have been discussed here many times previously. Marijuana May be a Problem (January 2016), Mischaracterizing Pot Again (February 2020), and Federal Law Matters in Main (June 2018). The failure of words is vexing. Marijuana is not legal. 

People who break into the homes of others are not "uninvited guests."

People who steal from you are not "unapproved recipients." 

The vernacular can matter. Refusing to call things what they really are can lead to misunderstandings and emotions. Perhaps not to those whose education, experience, and sophistication are in the stratosphere somewhere. But to the common folks like you and me, words matter. 

We are all likely to take words at their common expected meaning. Potentially, the news might insist on telling us that kidnapping is "legal" instead of informing us the more truthful posture that the state is simply no longer prosecuting kidnapping (not true, an illustration). In that, the news picks its words. Pot is not legal (neither is kidnapping, and the state will prosecute that). 

No, people who kidnap others will not be "exercising involuntary presence." They will be kidnappers. Even if the state would decide to decline to prosecute that, it will still be kidnapping. Kidnapping is against the law, federal law, Supremacy Clause; you have heard it all before. Can you imagine, even for a moment, a defendant in court arguing that an arrest for kidnapping is inappropriate because the state has expressly said it will not prosecute it?

To be clear, marijuana is not legal in a single one of the United States. Several have decriminalized it (said they will not prosecute it). The federal government has likewise said it will not prosecute pot possession. In fact, Congress has made it impractical for federal law enforcement to actually enforce the laws against pot. Some see hypocrisy in this. There is confusion and confoundment. People are led to believe they have a prescription (they don't) and that pot is "legal" (it's not). 

To be clear, there is no medical malady or condition, for which marijuana is accepted as a treatment. For clarity, no physician will prescribe marijuana. These topics of all been covered before. These remain true even when a state has decriminalized pot under state law. 

Who is the beneficiary of the decisions not to prosecute? There are many. Pot is being openly farmed, harvested, packaged, and sold. There are pot stores in every town it seems. And to the public it most certainly seems like pot is legal. If it were not, wouldn't a rational person expect that prosecutions would occur? But, if it were legal, might we expect it to be dispensed by the drugstore pharmacy like all the other legal drugs? Is there any other legal "treatment" that you cannot get at the local drugstore?

Congress has intentionally precluded the enforcement of federal law by federal law enforcement. With a wink or nod, Congress nonetheless requires recipients of federal funds, in many instances, to maintain drug-free workplaces. And those drug-free workplaces must remain free of dope. That is because it is illegal. There are other laws that preclude possession of a weapon by drug users. Hunter Biden just escaped a charge related to a weapon. That is not to suggest that the outcome would be the same for an ordinary American.

In the current iteration of the conflict, an upstanding employee has been terminated for using pot. Not using pot at the workplace. Simply using pot. This employee is not alone, and the examples of this are too frequent. Largely, the news media is to blame. It is the news media that insists upon referring to "legalized" pot and "prescription" pot and suggesting, through ignorance or design, the absence of constraint or potential detriment. 

Those representations are misleading and informative. They reinforce the perception of acceptability that is created by a pot store in every town. What person would not see all those pot stores as evidence of acceptability? 

But, that tie to federal money means "drug-free," and employees have to remember that drug-free includes pot. Pot is illegal. If you are subjected to a drug test, and it demonstrates pot, you are likely to be terminated. Did I mention pot is illegal?

That said, there are perhaps some employers that play fast and loose with such requirements. I heard a hearsay story recently of a facility that allegedly provides employees notice of testing. They are said to give 30 days' notice of when tests will be administered. That way, the employee knows to abstain from pot use for thirty days and can hope for a clean test. There are scientific challenges to that. 

First, that employer faces potential problems. If an accident occurs involving a pot-using employee, there is every chance that there will be some attempt to cast blame on pot. The employer's practice of providing drug test warnings might come into play. The employer is perhaps taking a risk by providing such notice. Furthermore, warnings may not shelter the "daily user." Healthline notes "the cannabis detection windows depend on how much you smoke or ingest, as well as how often."

Some of the very lawyers that will sue an employer to challenge its pot policy, drug testing, and employee terminations will just as readily sue the employer when there is an accident or incident that can be blamed on drug use. There is a desire to make workplaces safe and there is an interest in employees having their rights and privacy, particularly off-the-clock. These are competing interests and balance of any description may lead inexorably to litigation. 

None of this is news in the legal profession. For almost ten years we have known that pot use is illegal. We have seen courts across the country enforce federal law. We have seen people lose jobs over their pot use. See, So Federal Law Matters in Colorado (June 2015). The news, WCJB20, did not mention that decision in discussing the current dispute last fall. 

And, the case outcome did not make the headlines when the Court rendered its decision on June 21, 2023. The Court affirmed the administrative order that denied the worker's appeal of his termination. The Court reiterates the key points:

• "there are no valid prescriptions for marijuana"
• "mere possession of marijuana is a felony under federal law"
• "Although he can legally possess and use medicinal marijuana under state law, his use of it is illegal under federal law"
• As a user of pot, the employee "cannot lawfully possess a firearm."
• Each time he possesses a firearm as a correctional officer, because of his pot use, "he is committing a felony."
• Therefore "his termination was lawful"

The public would be served to see that in the headlines. They would benefit from knowing that pot is not legal, that they can lose a job, and that their investment in legal challenges may be fruitless. The ordinary, everyday people, like you and me, should hear this. The use of pot presents significant challenges and threats to them as employees. But that will not be reported. It won't be the headline. And we are left to wonder why.

Workplace Safety

They will speak of the Titanic for eons to come. For whatever reason, there is a fascination with that tragedy of over 100 years ago. It has been a staple of the big screen, literature, and more. The good netizens that curate Wikipedia can attest to that. It is not a mystery. The cause of the sinking is long since solved. The damage to the ship, the culprit iceberg, the romance of the stone, all settled. 

But, for some reason there remain those who are interested in getting up close and personal with that graveyard. They are possibly fascinated by the story. Perhaps they are intrigued by the danger of a a trip two miles beneath the surface. Possibly, they are the rich and idle and find solace or assuage in the expenditure of obscene money in pursuit of the trivial, a mere conspicuous consumption?

For whatever reason, there are those who will pay in the six figures for a trip to the bottom of the Atlantic. And, the news brought us word last week that one trip was not successful. Now there will be investigations. The integrity of the Titan submersible will be under scrutiny as will be those who ran the company that built and owned it. There will be recriminations, accusations, and conclusions. 

Some have already cast some questions regarding the decision to sail. An investor from Las Vegas passed. A documentary producer from Great Brittain passed. A television host passed. Their reasons are noted in those stories. There were concerns about the equipment, perceptions, and danger. It is likely perhaps that some were even concerned with the cost. 

That said, some people opted to take the trip. Movie director James Cameron has reportedly descended to the wreck 30 times, though not on this particular submersible. 

The vehicle in this tragedy, Titan, had its detractors. Mr. Cameron essentially said last week that he would not have traveled in it. He was “very suspect of the technology.” He was concerned the craft was uncertified, and seemed to believe that was foregone because of a fear it would not have been certified if submitted. Others quoted by Forbes seem to discount the safety and design of Titan. We may not see the future, but some things are reasonably clear. 

There will be investigations. We can learn from that very fact. The Coast Guard was involved in the search, to the tune of "millions." It will conduct an investigation into Titan. According to CNN, that investigation will either combine with or parallel an investigation by "the Transportation Safety Board of Canada." That story assures that there will be participation also by "The US National Transportation Safety Board." After those stories circulated, the San Diego Tribune reported that investigators from "France and the United Kingdom" will also be involved. 

This illustrates the aftermath of almost any accident. There are typically investigations. But, as in other realms, there are questions here of authority and ability. The "authority" issue is readily labeled "jurisdiction," and there are questions in many incidents. What state can investigate, which agency will take the lead, and how can interference and distraction be minimized? It may be easier with a localized accident involving homogeneous parties. But this is an extreme example. 

Certainly, this accident was not on the soil of any nation, but in international waters. The company that owned the submersible is a U.S. Company. The ship that delivered it to the dive site and likely provided additional technical and logistical support is flagged in Canada. Those who boarded for this particular fateful trip are nationals of Britain, Pakistan, France, and the U.S. 

Some critics have found irony. They note that the international regulations of sea travel were forged in response to the Titanic sinking.  CNN reports that "Titan may have a similar legacy." They assert that there should be "rules governing new high-end, big dollar tourism of" this kind. There are also those who lament the costs associated with the exploits of others. The New York Times discusses several perspectives and examples. 

There are those who think that the U.S. should leave the field. They deem the Coast Guard investigation a "waste of tax dollars." Some in Canada think the investigation should be a criminal one instead. The CEO of the company that owned the submersible was on the Titan, and thus beyond criminal prosecution. Perhaps others at the company might be prosecuted. But where? Could Canada? Others? There are significant challenges here with jurisdiction. 

If there will be no criminal prosecution, then to what end is an investigation? What might be learned, and who would benefit from that information? Almost certainly, there will be lawsuits. But, should those seeking compensation do that investigating and spending? 

There is the potential that the CEO is an employee, and thus discussion of Washington State workers' compensation might occur as to any claim from his heirs or dependents. The failure was at sea, and there is room to potentially discuss the Jones Act. 

The Frenchman aboard may have been an employee. But where was he hired? Does it matter if the contract for hire was in Washington, Paris, or Timbuktu? As regards application of laws, jurisdiction, and contracts there could be import. Whether he was an employee or a contractor may matter. Whether he was a company official could potentially matter. 

If there is to be a civil lawsuit by a submersible occupant's survivor(s), where would it be filed? Is that a Washington suit? Would it be possible that Pakistan, Britain, or France might exercise the authority of their courts over claims? If they did, could those courts exercise authority (jurisdiction) over the submersible company, the Canadian ship company, the manufacturers of the submersible materials and components, or the designers of the ill-fated machine?

And did the occupants sign a release? Was it clear? Was it explained? Does it matter? 

In the end, the fact is that this event is not terribly different from hundreds that occur around the planet daily. There is error, malfeasance, mistake, and pure accident. People are injured, they die, and there are questions. Various authorities may investigate. Fines may be imposed. Liabilities are considered, analyzed, settled, dismissed, or litigated. Certainly, this event got significant publicity. Certainly the international waters location creates complexities. But, in the end those complexities will be dealt with here as they always are, one element or question at a time. In the end, this event is tragic but similar in so many ways to a vast volume of daily tragedies.

What we can all glean from this is that regardless of our status, passenger, visitor, or employee, the best we have is ourselves. There are those who reportedly left this company's employ. They put themself first. There are those who declined to ride on this experimental submersible. They put themself first. There are those who exercised their choice and thus were not involved. That said, they missed the catastrophe but also the ride. 

In the same sense, any employee anywhere can decline to work in an unsafe environment. Sure, they must also essentially miss the ride, the paycheck, the job. But as compelling or attractive as that ride or paycheck is, the question has to be whether it is worth one's life. Too often, the risk of life and limb is not adequately considered by employer or employee. Certainly, each faces risks in the work setting. But, in the end, the ultimate risk is borne by the employee who climbs the equipment, enters the trench, or uses the device. In the end, safety is job #1 and the best person to look out for our safety is ourself. 

Triggered and Violent

There are a great many things in this world that one might disagree with. I come up with some of these reasonably regularly. I find as I get old, they perhaps occur more readily. An easy example is mayonnaise. Who puts mayonnaise on a hamburger? That is downright wrong, on a variety of levels. I need not go into detail, certainly, everyone gets this incongruity without explanation. When someone puts mayonnaise on my burger, I find myself troubled. I learned recently that the kids today would say I have been "triggered." 

But maybe mayonnaise is not the best example. The Urban Dictionary says "triggered" means

"An emotional/psychological reaction caused by something that somehow relates to an upsetting time or happening in someone's life. This reaction is often found to happen in war veterans, people suffering with PTSD, depression, and other mental disorders."

Well, thus it might be a serious something. I have never been to war, but I am doubting that my mayonnaise-on-a-burger aversion rises to that level.

The British Broadcasting Corporation reported recently on a college professor (a learned and capable professional by definition) who had approached "an information stall run by" some students on campus. These students held views with which the professor disagreed, let's say "significantly." The professor responded to their pamphlets (speech) by labeling their words "violent" and accused those staffing the booth of "triggering my students." The professor was, to be fair, troubled by the speech.

The professor allegedly next engaged "In an expletive-filled rant." When you wish to prove a point, expletives may be your friend. See Credibility from Vulgarity (October 2021). But it is also possible that when you swear at someone they will be less persuaded and more offended. Take your chances. This professor insisted that the students "remove" their speech and then resorted to "shov(ing) pamphlets off the table before walking away."

Depending on how you define violence, that professorial response tirade was perhaps closer to the definition than the speech involved.

There was a video of the encounter. Go figure, right? There is a video of everything these days. See Surveillance, Conflicting Rights, and Balance (May 2021). Well, some reporters saw the video and decided that they would interview the professor to better refine and understand the views so adamantly (violently?) expressed. They approached the professor's home, but the professor was apparently not so eager to conversate.

In fact, there is some allegation that the professor "held (a) machete to the reporter's neck" after opening the door. Allegedly the professor "shouted," expressed a potential to "chop you up with this machete," and finally, the professor reportedly "followed them (reporters) onto the street with the machete." I am reasonably reserved most of the time, but a knife to my throat might just trigger me.

Depending on how you define violence, that professorial response (weapons and threats) was likewise perhaps closer to the definition than the student speech involved.

Apparently, the school did not see the humor in the professor's actions. Whether because the professor assaulted the students over their speech or because the professor threatened people with a weapon and violence (depending on your definition, of course), the college "relieved" the professor "of . . . duties . . . effective immediately." Isn't that a fine how-do-you-do?

After all, the professor was "triggered" by that speech that troubled the teacher's sensibilities to begin with. 

If you are triggered, any response is OK, right? We all have an absolute right to live our lives without ever being offended, right?

More recently, a state senator was at a shopping mall when he perceived a bumper sticker with which the senator did not concur. Being a professional in the art of debate and compromise, the official engaged that speech. Allegedly, this included scratching the paint on the vehicle bearing the triggering speech ("keying a car"), according to the Boston Globe. I have to be careful with phrases like "keying a car" as that term has lost some acceptance or relevance in the age of fobs and other electronic vehicle access tools. The phrases of yesterday may be difficult for today. 

When confronted, the senator "initially denied keying the man’s car." The senator "later . . . acknowledged" doing so. The senator apparently, allegedly, then explained that this was a self-defense car-keying and the senator destroyed someone's property because the senator "felt . . . threatened by the man." Or, by the man's speech (sticker)? If the senator were more hip, perhaps "triggered?"

I struggle with these two examples. There is apparently some belief that if someone utters a phrase that one finds troubling it is fine to respond to that speech with force and violence (depending on your definition). That someone has uttered a "discouraging word" is somehow an excuse for tantrum, outburst, frenzy, or worse. It is O.K. because we were "triggered," essentially meaning we encountered something that does not conform to our personal outlook. 

I get it. Who has not been confronted with some "roll tide," "ole, ole, ole, ole," "hoddy toddy," or worse? The result may be beyond our control. These words may frighten us, anger us, and perhaps simply relieve us of our senses. We may be "triggered" beyond rational thought or control. Or, perhaps they are just words. And as Justice Louis Brandeis said, “the remedy to be applied is more speech, not enforced silence.”

Or, as my kindergarten teacher kept reminding the handsies and the biters, "use your words." Yes, I remember Kindergarten. Back to our college professor, one of the students assaulted by the poor triggered professor suggested that professors should "respect their students and their rights." There was suggestion that the professorial display was a poor example for others and that instead "Students should be taught how to peacefully exchange ideas with each other and professional staff." Imagine that, a world in which disagreements are discussed and debated without child-like antics and violence.

I can honestly say that 20 years of teaching college has afforded me many opportunities to convey knowledge, encourage critical thinking, and facilitate growth. Without question, I have heard a great deal in classrooms with which I disagree. As certainly, I have learned a great deal from my students and am grateful for them and their thoughts. I have often found I disagree with their opinions and conclusions. I have never assaulted one though.  The thoughts of the student above are gems. There is always room to listen to others. When there is no room, walk away. 

There is no requirement of acquiesence or agreement. There is no necessity of silence or disengagement. By all means, engage. By all means, say your peace. Rent a billboard if you must. By all means, however, keep your hands and keys to yourself. And, more importantly, keep your machete to yourself. There is no room in our society for violence. That is a simple start. 

As important, words can be hurtful, disagreeable, and noxious. But they are words. I hear and see things daily I disagree with. If words are triggering to the point of violence, perhaps one needs someone with whom to discuss the world in a more global sense? Being "triggered" is not an excuse, license, or forgiveness. It is a weak-minded justification for poor behavior, and expressing it is merely sad. 

As my generation said for years, "stick and stones, yadda, yadda, yadda." There is no benefit in ranting or yelling. There is no benefit in destroying people's pamphlets or vehicles or necks. Violence begets violence. If you find you are somehow triggered by the beliefs and words of others, pause a minute and consider whether they are likely just as triggered by your words. They are, they are just not expressing it through vitriol and violence as their maturity exceeds yours. 

Strive to grasp that they will perhaps never adopt your views, nor you theirs. Accept that differences may persist. We must each understand that. If violence is the answer you arrive at, it was likely a poorly phrased and conceived (dumb) question. 

And remember, always, that violence does not prove your point. It does not set an appropriate example. It does not advance your cause. It does not flatter you. And if you aren't really careful, it may well land you in hot water explaining your definition of violence and triggering to a judge that lacks the sense of humor and patience you might seek or your machete might demand.

To be clear, judges get to read a great many depositions in the deciding of cases. Keep in mind when you are at such a deposition, the court reporter will take down all that is said. If you lose your cool (or your mind), that may come through loud and clear in the transcript. Does that persuade? Does that advance your cause? Or does trench warfare with your opponent merely lead to all parties being upset, triggered, and ineffective? Invective, vitriol, and anger have not place regardless of your vehement disagreement with the witness, your perception of being triggered, or your sanctimonious diatribe. 

Use your words. Be offended. Know that others around you are just as offended, they are just not showing it. Keep your hands to yourself. Don't threaten others with violence. Life it too short. Your mom was wrong, you are not special. We all face things we dislike. Confront them, speak, discuss, debate, and keep your hands to yourself. 

AI and the Latest

In a now-famous scene from Star Wars: Episode V - The Empire Strikes Back (LucasFilm 1980), our protagonist is self-assured and our hero, Yoda, is not sure.

Luke: I won't fail you. I'm not afraid.

Yoda : You will be. You... will... be.

Technology is changing our world. It is coming at us in various forms. Perhaps it is none of the Four Horsemen of the Apocalypse: "conquest, war, famine and death." Or, perhaps it is each of these in some regard? We have a great retrospective vantage on technology. In around 904 A.D., there is evidence of a new gunpowder-fired projectile weapon. In 1440, the Guttenburg press revolutionized the written word. Technology is not new. Change is not new.

The last century has brought amazing change. Significant change. Air travel was first achieved only in 1903. History and Lessons (October 2022). The first programmable computer was in the 1930s; the first smartphone 1992, the first hand-held GPS 1989. Electric cars, also recent. I have known people who saw all of these. The bottom line is that change is nothing new. And, us old dogs can well describe to you the feelings we have repeatedly had as someone moved our cheese. We have all adapted to technology, change, and innovation.

I once labored in the field of document production. It was a discovery factory at a large corporation. We were very efficient in our day, but the process is laughable in retrospect. I met a lady there who started her career arc in a "typing pool," see Will Revolution be Violent (October 2015); The Coming Automation (November 2017); Tech is Changing Work (November 2018). Today there are doubts about our future. This time could be the "big one," anxiety is natural and predictable. 

That "typing pool" example is an excellent illustration. The lady who had come from that vocation had evolved into a very capable and able paralegal. She had eschewed law school because of the financial and time commitments but would have made an excellent attorney. She had evolved. At the time, I appreciated only the arc of her evolution and her survival of an innovative technology, personal computers. I failed at the moment to understand that arc is a continuum. Today, we see the next wave hit the beach and it impairs that very profession, paralegals. The evolution is persistent. 

The reality is that in an economic evolution, there are likely improvements in each generation. We see tools come to us that aid our efforts. Those tools come to shorten and ease our tasks, but in the end, they mean there is less need for us. Or less of us are needed generally. Fortunately, that has not been instant reaction to tech, but it has been persistent. Jobs have disappeared over time and new vocations have replaced it. 

That discovery factory in which I worked no longer exists. The technology of high-speed scanners, software portable document format, and optical character recognition has replaced the many hands that used to duplicate records and the eyes that searched, categorized, and organized them. But, in fairness, that was decades ago. No one there was laid off as these tech changes came. They were empowered by this new tech. They mastered it, employed it, and leveraged it. They quit hiring new help, and over time they eliminated their jobs. 

The British Broadcasting Corporation (BBC) addressed the potential that AI will take away our jobs. It reports that today there is anxiety about artificial intelligence, "AI anxiety." But, is that rational or reasonable? See You're only Human (May 2023). They fear the change. I confidently intone

Langham: I won't fail you. I'm not afraid.

What would Yoda tell me? Well, you get the point. The BBC suggests there is little to fear. It provides examples of the labor force and their feelings about AI. They are tentative in part, but express feelings of adequacy and confidence. For today. One noted not that she cannot be replaced, essentially that “I don’t think the quality of the work that I’m producing could be matched by a machine just yet.” Ah, the "yet." She is confident in today, but less so in tomorrow. She sees the AI evolving and changing to her potential detriment.

The question is not about having skills. The inquiry is regarding the relevance of skills. And for judges, the future may not look so bright. There are computers that effectively judge credibility now. There are algorithyms that write prose with great effect. See Ross AI and the New Paradigm Coming (March 2016); Chatbot wins 160,000 Legal Cases (June 2016). There is no guarantee that the future will include judges, attorneys, or paralegals. 

So, are the autobots coming for our jobs? The BBC reports that some prognosticators estimate "AI could replace the equivalent of 300 million full-time jobs." That and other news coverage has some of us asking ourselves questions. One report concluded that about 30% of us are "worried." The tech has evolved from replacing the rote and repetitive (assembly, production, etc.) to replacing the creative, the collaborative, the more esoteric. That the targets of the tech have changed is simply semantics. The fact of change is not different or new.

The BBC offers no counterpoint. There is no "rage against the machine" advice. We are not provided any roadmap, plan, or suggestion on confronting Cyberdyne, the T-1, or other futuristic threats. There is no plan to defeat them. The suggestion, instead is that we ascribe to Senator James E. Watson‘s “If you can’t lick ’em, jine ’em.” And thus, perhaps our path is laid. We need to find ways to go beyond welcoming our new overlords and find ways to collaborate with them. There is room for them to make our worlds simpler now, to ease our labors. And, in fact, to make us better. 

The point is to leverage technology. We in this space have seen the benefit of that. If we had not adopted and adapted e-filing, video hearings, e-service, and more in the early twenty-first century, how would we have survived the pandemic? We survived and thrived because the technology was not new. We thrived because we had changed before and adapted. We were ready. Is the next innovation any less important to us?

We are free to feel anxiety and harbor fear. That is natural and human. But, dreading it is not going to either change it or change us. There will be change. The typing pool is gone, and other tasks are likely to disappear. I have seen a hyper "spell checker" that goes way beyond the spelling of yore, and grammar of yesterday, and makes far broader writing suggestions. It can adapt its suggestions based on the responses of the user. It learns. Rudimentary AI undoubtedly, but AI nonetheless. Computers are already studying us. The future is now. 

Anxiety and fear will not prevent technology. Like Christmas came in The Grinch (Universal, 1966), it will come anyway. The Grinch could not stop it by purloining the "Who Feast" and other accouterment. He expressed both surprise and wonder. He expressed failing comprehension. And, as he looked on in wonder, Christmas came anyway. Get over the anxiety, technology is coming anyway. There is no amount of denial or doubt that will forestall or delay it. Find a way to embrace it, to use it, and to benefit. It is the best path, time and time again. 

And, have no fear. In the end, AI will not be any more perfect than we are. See Hallucinating Technology (January 2019) and Only Human (April 2023). We will have challenges, and tech will enable us. We will adapt as will the technology. We will need it, and it will always need us. The future will come whether we are ready or not. That said, why couldn't the next revolution have been that flying car they have been promising me for decades? Well, one can still hope. 

Arising out of?

Once upon a time in a galaxy far, far, away, I clerked for an attorney defending a client in a massive tort claim. Over the millennia, the case has stuck with me for several reasons. First it was of enormous scope. The foundation was an explosion of a gas well in Mississippi. As far as I could tell, every law firm in town represented one of the defendants. It was my first exposure to a multitude of fascinating legal issues, not the least of which was "coverage." I spent much time researching various legalities in "the stacks." There was computer legal research back then, but it was expensive.

There were some complications in the case. Many of the defendants had been independent contractors instead of employees. As such, they were not covered by the insurance policy of the company drilling the well and managing the property. They, therefore, struggled with the cost of hiring lawyers. I recall several occasions of lawyers, in discussion of the next complaint to be filed in the various courts and circumstances. More than once, the threat of a new complaint met the retort "please allege that my client used his car to get to the well that day."

This was met with laughter, but I frankly wondered if some were not serious about it. You see, an automobile insurance policy might be expected to have "a standard liability provision covering . . . liability arising out of the use of an automobile." West American Ins. Co. v. Silverman, 378 So. 2d 28 (Fla. 4th DCA 1979). Thus, if the explosion was somehow tied back to using a car to reach the well, then perhaps a duty to defend. It was tenuous and seemingly humorous. I don't know how serious those lawyers were.

I was reminded of those imaginative and creative lawyers last year. CNN reported that a "Missouri woman was awarded $5.2 million . . .from (an) insurance company" after she and her "partner" engaged in congress in the partner's motor vehicle and the plaintiff contracted a sexually transmitted disease. In some perspective, this congress was sufficiently related to the automobile to place the "partner's" auto coverage on the risk. The matter was appealed and affirmed by a "three-judge panel." The reviewing court seemed somewhat perturbed that the insurance company had not defended the allegations until after significant litigation had occurred.

In January, according to WSAZ3, the Missouri Supreme Court reversed, unanimously. It did not conclude that the insurance company was without potential liability. It merely sent the case back to the trial court to allow the insurance company to further defend itself. The CBS coverage of the Court's conclusion says that the insurer is "off the hook, at least for now." CBS reports that the insurer's defense is essentially that "the woman's claim did not occur because of normal use of the vehicle."

The reversal does not necessarily mean an end. The Court did not conclude that transmission of a sexually transmitted disease is not "arising out of." It really only decided that the procedure in the case was not appropriate, that the party told to pay "$5.2 million" should first be given a chance to make the argument that such an incident is not "arising out of." The timing of the various involvements is troubling, and the appellate court's frustration is noted. But, in the world of "due process," there is virtually always a few moments to allow someone the opportunity to say their peace.

What are the implications? Well, if someone sends you a spam text/email while in a car, and you are fooled into thinking they really are a Nigerian Prince, should their auto carrier pay you back? If your fiance calls from the car to cancel your engagement (breach of contract), should their auto carrier pay you back? If you catch a ride home with a coworker during the early days of the next pandemic, and you feel like you caught COVID-97 from them, should their auto carrier pay your lost wages?

What if the email/text, phone call, or exposure happens at or from your house, should your homeowner's policy pay damages?  If you are at work when you send that text/email, make that call, or exhale SARS-CoV-109 should the business' liability policy or premises policy be liable? Certainly, the answers are simple - it depends. It depends on what risk the insurance company agreed to take on. That is in the contract. That is in the language such as "arising out of the use of an automobile." And we must never forget that such language in contracts is almost never negotiable and almost never written by the consumer. That said, it is almost always subject to a raft of legislative and regulatory constraints and restrictions. 

In the end, it does not matter so much whether STDs are covered by auto policies. The loss in that even will be suffered, and the insurance company will pay the $5.2 million. Some will see that as appropriate, and others not. The insurance companies (all of them) will adjust with new policy language (an exclusion) or they will all raise the rates we all pay for auto coverage. The outcome will be either that someone has to pay for their own STD (victim), their paramour's STD (car owner), or their insured's paramour's STD (auto carrier). 

If it is the carrier, then reaction will follow (policy language, exclusion, or rate increase). If it is the car driver, reaction will follow (protection, disclosure, abstention). If it is the victim, reaction will follow (anger, disenchantment, abstention). In the end, someone will pay the cost of the STD in this case. That is true of almost any personal injury. See Someone Has to Pay (May 2016). There will be medications to pay for, impairment to recompense, anguish to assuage, and more. There is no denying the impact of the exposure, nor any easy answer for the victim. 

That said, the contract and the law will determine if there is a $5.2 million payout because the victim was victimized in a car instead of an apartment or house. And consider whether the next case that arises in a house will result in a claim against the homeowner's or renter's policy. The analysis will remain, is this covered by the contract, and the outcome will be the same if it is, contract changes or higher rates for all. 

Credibility Again

Credibility is a persistent topic. It has been featured here time and again. See The Chair of Truth (February 2018), Magic Words (February 2021), Credibility from Vulgarity (October 2021), and Credibility - a Conversation (December 2019). Each of these makes an important point. In a nutshell, we cannot assume that credibility is determined by a judge. The fact is the vast majority of disputes never see a judge. Thus, credibility with other decision-makers is critical (think adjusters, managers, doctors, nurses, and the list goes on). Time and again, I am asked what makes a witness credible. 

I often stress that credentials are not the key. They are essential - no one wants a doctor that went to medical school at "Bob's School of Medicine and Tire Emporium." That is fair. But is there some serious distinction between this university and that one? It is possible, don't take that wrong, but it is unlikely to be a patent distinction. Usually, I hear the argument of obviousness from those who attended Medical School at the Ole Miss of the North (that will ruffle some feathers, but life is too short not to laugh sometimes). I have some affinity for Ole Miss, though I never attended. See I never knew Oxford had a Comma (March 2017). 

The discussion of credibility is not new. And, particularly in personal injury litigation, it has been critical for many decades. Whose version of the facts is true? Which doctor's opinions are persuasive? In Florida, those questions remain (for now) with the Judge of Compensation Claims, the "finder of fact." But stay tuned to what video hearings may bring to appellate review in years to come. See Ford v. Boynton - Reheard and Revised (August 2021). The appellate deference to us trial judges may be on borrowed time. Or, perhaps the appellate judges will eschew meddling in credibility as a defense against a tsunami of requests?

But, the Florida Supreme Court rendered an insightful and informative decision a few years back in 1951. It is rarely cited, and less often studied. It is a critical piece of analysis and worthy of time invested. In it, the Court concluded that workers' compensation adjudicators (Deputy Commissioners at the time) should make credibility decisions and those decisions should be respected by the appellate courts:

"this Court should not substitute its judgment for that of the chancellor or jury and reverse the findings of facts made by either unless there is no competent, substantial evidence which sustains them." U.S. Cas. Co. v. Maryland Cas. Co., 55 So. 2d 741, 744 (Fla. 1951).

This brought the "competent substantial evidence" review standard to findings by administrative judges and similar (Deputy Commissioners). Thus, the case is significant. But wait, there is much more. The Court observed:

1. "Many workmen's compensation cases turn upon a proper evaluation of medical testimony." 
2. "The Deputy Commissioner may observe leads, not apparent upon an examination of the transcript of the evidence, which point unerringly to the correct findings of facts." 
3. "Doctors are human." 
4. "Doctors may be appraised as witnesses and their testimony evaluated, in much the same manner as other witnesses and their testimony are judged and estimated." 
5. "Doctors vary in degree of ability, as do lawyers, scientists, executives, educators, clergymen and other professional as well as every-day business men." 
6. "The fact-finding arbiter is usually in a better position than the reviewing body to judge the ability, experience and reputation of the various so-called expert witnesses who appear personally before him and to determine the weight which should be given their testimony." 

Truisms all. And worthy of remembering and reinforcing. But, what makes testimony credible? The Court noted the Ole Miss conundrum discussed above. It noted that: 

"One doctor may have a long list of degrees behind his name, while another has but few." 

This is the critical point. The forgotten point. The obfuscation point. The argument that you should believe this doctor because of how many initials and abbreviations follow the doctor's name is potentially specious. The argument that this doctor should be believed simply because she trained at Ole Miss (or the "Ole Miss of the north") is potentially as specious. The Court explained:

"However, the latter (with a few credentials) might, by his demeanor on the witness stand and by his freedom and clarity of expression, disclose a familiarity with the subject under discussion which far exceeds that of the obstensibly better educated theorist."

Do you want a doctor that has treated patients or one who wrote a theoretical book about treating patients? Either choice might be valid in a particular situation. Jim Gaffigan does a very funny stand-up on being "the best brain surgeon." He questions how you would measure such an accolade. He reminds that even the "worst" brain surgeon is nonetheless a brain surgeon (the same likely applies to rocket scientists, lawyers, and host of other examples). But, in the end, the decision is not necessarily who is the "best" brain surgeon, but who is the best brain surgeon in a particular setting. And how would we decide?

• "demeanor on the witness stand" 
• "freedom and clarity of expression"
• "familiarity with the subject under discussion"

And, perhaps we add, composure under criticism (cross-examination). That is, how well does the witness hold her or his (insert alternative pronouns here) ground, explain the persistence of the conclusions, and accommodate the points raised in contradiction?

In the end, it is likely not who you are, where you went to school, or how many abbreviations follow your name. In the end, it is likely more what you know, how you explain your process and conclusions, and how well you educate the finder of fact. It is not likely to be enough "that" you believe, but "why" and "how" you came to believe that matters. 

If that is because you went to Ole Miss, say so and explain it. If the fact you went to Ole Miss instead of Stanford does not matter, then explain what does matter, and do so in a manner we can understand without a medical degree. And do it concisely and frankly. As Franklin Roosevelt is purported to have said "overstate and bore understate and score." 

And in the end, if you encounter a finder of fact who makes decisions solely on the fact that you went to Ole Miss, you may find yourself thus on a slippery slope. That person might as readily doubt your credibility because of the coffee you drink or the way you wear your hair. Each is perhaps potentially as relevant as your attendance at Ole Miss back in the day. You cannot control such conclusions. But you can always explain your perceptions, your process, your conclusions, and all the rest of the "why." Go with these and your odds increase. 

Do you Care about Reputation?

I dealt with reputation in 2015 in How will you be Known. That is a broad discussion. There are those who live for specific motivations. Among those is fame. Fame is a double-edged sword. I wonder how many of the appellants in Florida's seminal cases knew their names would become synonymous with deep thoughts or principles. Did Victor Wine or Beasley? Did Vigliotti or KMart? Did Pearson or Paradise Ford? A lawyer suggested to me that this is even more troubling if the lawyer's name is in the style of the case. I can see that perspective and the potential for various fears or anxieties. 

That makes me think of Hon. John Paul Jones, Hon. David Trask, and some others. I recently ran across a couple of cases in which a lawyer was sued after successfully seeking a contempt order against the person that hired him. That was intriguing because it literally became a federal case. It did not work out well for the lawyer, and yes his name was in the published opinion. Gay v. McCaughan, 272 F.2d 160 (5th Cir. 1959). That is a challenging posture. The opposite could be true. The lawyer in such a posture might establish some admirable or important legal principle and be elevated or celebrated for that effort. The sword has two sides.  

Will anyone remember you in 100 years? As we fade and slow, we will each leave our business and this community. This is the same for adjusters, attorneys, doctors, therapists, nurse case managers, and all. There may be a watch, a plaque, and a cake. But, we will each fade and hopefully be replaced. I fervently hope that there is a generation coming to step to the fore and lead this workers' compensation community. I have met some younger folks that are capable of leading. I am very impressed with a few. The potential is there, but we must mentor, encourage, and recruit. 

Let's face it, someone will ascend, illuminate, and similarly fade as their time similarly comes and passes.

How will they be known? How will you be known?

I have thought of that in recent months. Too many of my generation and our mentors are passing. This was my sentiment in Legend Jack Langdon Passes (June 2019), Jon Wheeler (May 2023), and in Judge Robert Dietz (January 2022). I have good memories of these and others. They made me laugh, frustrated me, and at times confounded me. They were imperfect and flawed, and I miss them. But, I remember them. That we remember is important, as is why.

I have been frustrated at times when organizations present awards or recognitions because there is an announcement, but there is rarely detail. If you give out the Frierson/Colling Award, I would appreciate that someone that actually knew those two takes a few minutes and tells us why they were memorialized. Not blase generalities, "he was a good lawyer," but a good anecdote or two. Tell us who they were. Remind us. That, from my perspective, is where the value lies.

Who was Harry Lee Anstead? He served on the Florida Supreme Court. He concurred in the majority in Aguilera v. Inservices, Inc., 905 So. 2d 84, 98 (Fla. 2005) and in Jones v. Martin Elecs., Inc., 932 So. 2d 1100, 1109 (Fla. 2006). There were workers' compensation cases in which he filed opinions. But, in the grand scheme of workers' compensation, he was not perhaps overtly noticed.

He was born in Jacksonville. He was appointed to the Court by Lawton Chiles to replace Rosemary Barkett. He graduated from the University of Florida College of Law. His ascending to the Court is notable, his service there notable, but I would love to hear more about who he is, and how his professionalism was noticed and valued. Because, each year, The Florida Bar recognizes a Board Certified lawyer for

• "exemplary professionalism." 
• "Substantial and positive influence on professionalism locally, statewide or nationally." 
• "Positive influence on or advancement of Florida Bar board certification through mentoring." 
• "Solid reputation for professionalism and character." 
• "A history of teaching, mentoring, or providing an outstanding example for younger lawyers." 

And, it is named "The Justice Harry Lee Anstead Award." That this award is so named make me want to hear more of Justice Anstead. Why is this award named for him? I have no doubt it is justified, but when someone googles this (I have), that explanation should be patent. When the award is presented, it should be described.

Of particular note, "The Harry Lee Anstead award may be given posthumously." More on that in a moment, but the point is we can remember those who have passed. We can honor those who have passed. I was proud in May to see the first Robert Dietz Young Professionalism Award bestowed on Meredith McAvoy at the OJCC Academy in Orlando. That was a fitting tribute to Ms. McAvoy, and to a great community mentor who has passed, Judge Dietz. It is heartening that we had so many nominations of young lawyers for this recognition. Tomorrow, my friends may be brighter than you think.

Next week, at The Florida Bar Annual Convention in Boca Raton, The Justice Harry Lee Anstead Award will be presented posthumously to Hon. Robert Dietz. His focus on the next generation, mentoring, and professionalism will be recognized on a large stage. I am proud that his effort is recognized. We (this community of workers' compensation) are better for his presence, grateful for his service, and still, today burdened by his loss. It is fitting in the spirit of the criteria set out above that Hon. Robert Dietz is thus recognized. 

We could tell hundreds of anecdotes about Robert. Each would be fitting when presenting the award named in his honor. He is remembered. 

How will you be remembered? Do you care?

It is up to You

Everybody gets busy from time to time. Everyone makes errors in the day-to-day. There are implications and impacts of those mistakes. It is unavoidable. How you respond and react is truly up to you alone.

We have each had that moment when we realize that we have done something that really should have enjoyed more thought and consideration. We regret having acted in haste during some moment. Unfortunately, in the real world, we often have no path to recover from such mistakes. That is real recently for a constitutional judge in Maryland that committed the offense of simply not reading what was in front of him. It is an important reminder for the judge but also for lawyers and more.

This judge is retired after serving "20 years on the Circuit Court Bench in Prince George's County." He is now a senior judge and "sits the bench in the Upper Marlboro courthouse part-time." He fills in on "the so-called rocket docket, in which the judge quickly hears dozens of cases involving lower-level offenses."

The mix-up, in this case, came from assumptions and failing to read a file. He was discussing "case one" with an attorney and was told "a bench warrant had been placed on his client by mistake." The case was a non-violent offense, and the accused "was free on his own recognizance." The attorney asked that the judge "rescind the bench warrant," and the judge committed to correct the error. The accused in that case "had a Latino name."

Four days later, the judge was presiding, and the file of Pedro Guifarro came across his desk. This defendant, "case two" was accused of a "gang-related killing." But, without reading Guifarro's file, the judge ordered the defendant in case two released. He essentially assumed that one name sounded like another name, did not review the file in front of him, and released the accused felon. The Washington Post reported in 2005 that officials had then "been looking for Guifarro since shortly after his release."

Confronted with the mistake, the judge is of course without any path to personally rectify the situation. He was quoted:

"Like a damn dummy, I didn't even look at the file," Femia said. "I screwed up."

This error came down to making an assumption because of the heritage presumed by the judge, that is that "the defendant had a Latino name." On the premise of that conclusion, and without any further inquiry, the judge "assumed it was the case involving the erroneous bench warrant" (case one). That is curious.

What compounded the error, or enabled it, is that when the judge "read the case number and Guifarro's name out loud," neither that defendant's counsel "nor the prosecutor . . . was present." The judge then ruled in the moment: "Please note the bench warrant has been recalled and the recognizance is reinstated."

There is a lesson here. Perhaps primary is the old adage "haste makes waste." Rocket docket or not, there is always a minute to read a file, confirm a name, and assure comprehension. Particularly so when the downside or risk is significant, but always so nonetheless. That, in the end, is the judge's job. Anyone can shuffle papers, make assumptions, and be decisive. The issue is one of being both focused and intellectually decisive. Read the documents!

There is a second lesson here. That is the "crying over spilled milk." The process reported here does not involve a great deal of recrimination or hand-wringing. There is acknowledgment that an accused gang-related killer had been set free and as yet was evading arrest. Regret is healthy, but what is done is done.

A third important lesson is to be conscious of bias and prejudice. That is an unfortunate conclusion but it is real. The assumptions in this instance were based on culture and name. There is a real problem with "they all sound the same." It is base, unfortunate, and wrong. The mistake evidenced bias and that should be recognized, comprehended, and addressed. 

Finally, there is some inclination perhaps to blame the judge. That may be well-founded or not. The fact is, however, we all make mistakes. What is more important than such an error is how we individually respond to it in our own lives. The judge there has (1) admitted the error and (2) accepted responsibility for it. That is becoming increasingly rare in our world.

We see this in the world of workers' compensation daily. We see documents filed that are incomplete, inherently inconsistent, and at times patently false. I am proud that our judges read the pleadings and the file. We sit and wonder at the inadvertence or impropriety that has led to such documents. We notify, admonish, and correct. It is a labor-intensive process necessitated largely by lawyers who are either delegating too much to staff or who are neglecting to spend the time to read the file. As a result, we get simple, repetitive, and frustrating errors. Everyone makes mistakes periodically, but some of you might be troubled by the reputations you are building. 

Sure, no felon has ever been mistakenly freed by a workers' compensation judge because a lawyer failed to document the details and/or read the file. But, there are repercussions from such failure nonetheless. Unlike the judge in this story, many times the lawyer's response when such an error is noted is incredulous, impatient, imperious, and inappropriate. The stories I hear of abusive and unprofessional lawyers in such settings are too often and too much. 

We have paralegals lecture us on their perspectives, their desires, and their conclusions. We have lawyers that hurl insults, vent sarcasm, and spew vitriol. I am astounded by their childish and inappropriate behavior. I am disappointed in instances of laziness and incompetence.

Certainly, we all make mistakes. At the end of the day, the Maryland judge could have blamed staff, blamed volume, blamed anything. But, instead, he admitted his error. Whether we like a process or not, it is. Whether we think we have complied, that is up to the judge. Whether we respond with hate and hyperbole or with supplementation reflects on us. Whether we learn from such errors or keep making them is entirely up to us.

AM

There has been a recent theme of nostalgia. Nostalgia comes for us all at various points. For some reason it is resonating more readily lately.

Back in the day, I purchased my first automobile. It was used, I was reasonably new, and we got along well. The car had been built with power steering, power windows, and automatic transmission. But, it provided entertainment through an amplitude modulated (AM) radio. That was not the "latest and greatest" at the time. But someone had decided that frequency modulated (FM) was not worth the extra money.

After that car rolled off the assembly line in Norwood, Ohio, the trend turned to FM radio. It was not new, FM had been around since the 1930s. But, it was in 1978 that FM overtook AM in terms of listeners. The revolution inspired music. Steely Dan released a song in 1978, titled simply FM. The lyrics are reminiscent of much of the 1970s, much of it unfortunate and sexist, but the hook was the new FM primacy, the lack of static, and modern age.

No static at all (no static, no static at all)

FM (no static at all)

I listened to AM in that old car until I could afford an eight-track. The eight-track was introduced in 1964 and revolutionized music. Only two years later they began releasing music on the cassette. How the eight-track survived that for even two days I will never know. But somehow, many of us clung to the eight-track. I remember large, bulky, and frankly ugly eight-tracks in new luxury cars into the 1980s. Not to mention CB radios (citizen's band).

I remember in the early 2000s when people were prosecuted for downloading and sharing music on the internet. But in the 1970s and 1980s we recorded millions of minutes of music from the radio. That was not "stealing," was not frowned upon, and was never an issue. I have struggled to understand how the internet changed anything but the method (and arguably the recording quality). If you wonder what happened to eight-tracks, you could not readily record on those at home. You figure it out. 

As I drove back in those days, we looked for the "big stick" stations. These were the 50,000 watt, "clear channel" broadcasters. These companies had been granted an AM frequency that no one else in the country used. They were numerous but were perceived as rare. My favorites included WGN Chicago, which I recall broadcasting both music and talk programs. It all depended on when you tuned in. Another was WWL New Orleans. I recall it being "talk radio," but memory fades with the decades.

Other stations had that serious wattage, but not a clear channel. Therefore, their signals could face competition or interference from other stations broadcasting on the same frequency, but far away. Some of those cut their transmission power at night to accommodate that complication and to avoid interference with one another. I recall many hours listening to such a 50,000-watt transmitter out of Ft. Wayne, Indiana WOWO. That station carried the credibility of Westinghouse, once a household name in America.

As I traversed the country, even after the undeniable primacy of FM, I would strive to tune these stations in the dark and lonely hours. You could pick up an AM signal from some of those 50,000-watt clear channels hundreds of miles distant. I recall one night, in particular, listening to WGN as I drove through the night across Tennessee, Georgia, and Alabama making for the Mississippi of my youth. The signal would come and go as I traversed low and high ground in the mountains and foothills. See, AM signals don't like physical obstacles like hills.

As time passed, music on AM faded into history. Today's list of the big transmitters illustrates this. Talk radio and sports radio became the norm. Visit your AM band today and you will struggle to find pop music. You may find some gospel though. Nothing wrong with a helping of that from time to time.

Car manufacturers started to eschew the AM band recently. Critics see it as antiquated, anachronistic, and yesterday. One on ARS Technica likens it to "vinyl, 8-tracks, cassettes, CDs," and all else that it sees fading into our past. Not without lamentation, but with little more than a whimper perhaps.

Why does it matter? Well, it turns out many car manufacturers are abandoning AM. The New York Times reported on this in December 2022. The point, it says, is interference. That is, noise pollution:

"electric vehicles generate more electromagnetic interference than gas-powered cars, which can disrupt the reception of AM signals and cause static, noise and a high-frequency hum."

Electric cars create noise pollution. The manufacturers mentioned by the Times included Ford, Audi, Porsche, Tesla, Audi, Volkswagon, and Volvo. Various other manufacturers have been mentioned in other news coverage of this great historic moment. But wait.

May brought news from the AP that Ford will reverse course and include AM radio. The United States Congress has begun to debate a law that would mandate the "National Highway Traffic Safety Administration to require AM in new vehicles at no additional cost." There is a building cacophony that this old technology is something we need to preserve for our future.

In what way it benefits us remains in dispute. The proponents claim that this is a primary method of communication for a large swath of America. They explain that information can be conveyed to people at great distance with this tool. Critics counter that the same can be transmitted through the now ubiquitous cell phone and its persistent dissonance and noise. Those folks are likely to live somewhere with a ready and reliable cell phone signal.

See, we don't all live in such places. I spent a week this spring on a hilltop with no signal. To make a call, I had to drive over three miles to a cemetery on higher ground. I had to gain altitude and avoid the obstruction that hill presented. But, even in that paradise of isolation, the old AM radio still functions. In fact, it receives both WGN and WWL. On a good day, with the right weather, I have even tuned WOWO, but that is rare.

The car manufacturers note that AM and electric don't get along so well. They say that shielding and effort are required to protect that AM signal from the electric motor interference. Some note that this adds weight to the car, and efficiency of a vehicle (range) is all built on the relationship between the force required to move a particular amount of mass against the resistance of friction, atmosphere, and more.

Will AM survive? Does it need to? These are both way above my pay grade. But whatever these powers decide, AM will remain. It will live in my memories of long drives, bad coffee, and often equally bad music. Be offended if you will, but I can leave this earth without ever hearing Delta Dawn, Take this Job and Shove it, or Convoy again (apologies to those who composed, performed, or loved these songs).

I would not miss the static, or the talk, or the news. Come to think of it, what I miss is the odd experience of picturing the Cincinnati Reds play ball as described to me in the play-by-play narration that was a staple of the AM radio of my youth. I am not sure why, but Cincinnatti seemed to be perennial, as were the Cubs on WGN. You could see nothing, and so the announcer described everything. His tone, eloquence, and persistence were wonderous. The world was simpler then. Note that I did not venture into "better," but without a doubt, it was simpler.

Will regulators bring back the floppy drive, the typewriter, or the fax machine? As business lurches into the age of robotics, artificial intelligence, and goodness knows what else, will we anchor to yesterday or embrace tomorrow? That said, is there some reason we cannot do both? It turns out that the cars already sold without AM can be afforded that access with a simple software update. Radios today are just another computer.

The discussion is relevant as we face change. Innovation in drivetrain and near doctrinal fervor over electric cars is driving change. That is impacting older technology, and accepted habits. It is evidenced in anxiety and fear that may be substantive or may be simply about the change. We all hate change, whether we will admit it or not. It is many times easier to swallow when it is shiny and fun (like a new technology or toy). But, it is change nonetheless. As business and employment evolve, the concepts of change, consequence, and legislative reaction may bear consideration. 

Will the world move with the times, borne by economic reality? Or will government persist in regulation and mandate?

 

Mamma Always Said

A month ago, I spent some time with ChatGPT and related my findings in You're Only Human (May 2023). At the end of the day, suffice it to say that the results I found were inaccurate, unreliable, and at times arguably fictitious. The "intelligence" was a misnomer.

Then came a story from New York, reported by the British Broadcasting Corporation (BBC). In it, we hear of two intrepid New York lawyers, Harry and Lloyd. Harry had a client that wanted to sue an airline. It sounds like Harry filed a lawsuit and was confronted by a motion to dismiss or for summary judgment. Lawyers in those settings are likely to file motions, responses, and legal memoranda. It is, as they say downtown, "what lawyers do."

But, it appears Harry was busy that week and so he recruited a lawyer down the hall, Lloyd, to write a "brief" in support of the cause. Lloyd, with his 30 years of legal experience and expertise, "used ChatGPT to look for similar previous cases" to bolster the one filed by Harry. The opposing lawyers did what any ethical and competent lawyer does when confronted with an opponent's filing, they looked up the cases and other authority cited by Lloyd.

"Aye, there's the rub." (Billy Shakespeare, Hamlet, 1599).

The airline's lawyers could not find those cited cases. The authors of the BBC article say they "wrote to the judge" about their inability (we hope that is an error and they instead filed a motion or response to make this assertion). The judge concluded that "Six of the submitted cases appear to be bogus judicial decisions with bogus quotes and bogus internal citations."

Now Harry and Lloyd may face repercussions. The judge in the case is considering further action. A hearing is to occur today, June 8, 2023.

Now, in Lloyd's defense, he says he was "unaware that its content could be false." Lawyers refer to this as the "I didn't know defense." It is not known for working. He explained that "he had never used (the chatbot) for legal research before." And he expressed he "greatly regrets relying on the chatbot." Remorse and contrition are often advocated by good lawyers, "just tell them you're sorry, and make them believe it."

The BBC concludes that

"There have been concerns over the potential risks of artificial intelligence (AI), including the potential spread of misinformation and bias."

Sloppy? There is an increasing volume of sloppy, incomplete, and frankly incompetent legal work being filed. Every lawyer seems focused on their perceptions. They think they are Abraham Lincoln or Thurgood Marshall. They often argue of their great expertise and reputation. What they file is a testament to inadvertence at best and neglect at worst.

Lawyers are supposed to be diligent (Preamble, Rules Regulating The Florida Bar, Chapter 4). See also Rule 4-1.3.

Lawyers are not supposed to make false statements to judges. Rules Regulating The Florida Bar, Rule 4-3.3. The Comments to that rule include "Representations by a lawyer," "Misleading legal argument," and "Fraud on the Court." The Comments proceed to cite some other rules such as:

"Rule 4-8.4(a) prohibits the lawyer from violating the Rules of Professional Conduct or knowingly assisting another to do so."

"Rule 4-8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice."

Harry and Lloyd may face different rules. Certainly, the Rules of Professional Conduct are adopted by various states. They are each largely modeled on the proposals of the American Bar Association (a voluntary organization to which some lawyers belong). Thus, the rules in New York may be different. But, whether there is punishment for Harry and Lloyd or not, there are lessons here.

First, you cannot trust artificial intelligence. The same is true for the brilliant memo or brief you are "borrowing" from today. You have to check the citations and actually read the cited statutes, rules, and cases.

Second, Harry should have been managing his own case. You can delegate the work, but never the responsibility. Harry is in a tough spot due to Lloyd's failures.

Third, when a lawyer files something, it is incumbent on the other lawyer(s) to check those citations also, and to read the authorities. Clients that forbid their attorneys from "wasting" time on such effort are shortsighted, careless, and gambling.

Fourth, old age and experience are not the be-all and end-all. Experienced lawyers make dumb mistakes. Through hubris, haste, or habit, the old are as prone to laze and indifference as any.

Fifth, you cannot trust artificial intelligence (I know, I repeat myself). The machine feeds you answers. It misrepresents the accuracy and dependability of its answers. It blatantly and persistently conveys untrue information.

When the lawyer expects to demand the best in remuneration, she/he should put fort the best effort. When the lawyer yearns for the best reputation, she/he must remember it is earned. When a lawyer looks in the mirror, she/he should strive to drop the facade that is desired and strive to see what others see. It may be alarming for the Harrys and Lloyds of the world, but self-awareness is critical.