Presumptively?

The Florida Supreme Court has been inclined to see presumption, despite the arguable absence of patent expression. Castellanos v. Next Door Co., 192 So. 3d 431 (Fla. 2016). Through inference or imagination, presumption may be perceived by some where it is less apparent to others. There is foundation for multiple viewpoints, and the perspectives are persistently interesting to hear discussed.

In that vein, there are those who find the Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications interesting in this regard also. They argue that the rules similarly create an inferred presumption. They voice interesting arguments both from that perspective of legal authority interpretation and from the practical of good public policy.

The present context seems centered upon the conducting of hearings and mediations. There are rules regarding each process and perhaps different degrees of specificity might be perceived there. Despite those potential distinctions, there, are those who also perceive parallels, if not presumption per se.

The mediation process is explicitly presumptive by video conference (zoom). Rule 60Q6.110(5) is arguably clear and specifies:

"(5) State mediations shall presumptively be conducted virtually on a video platform. The assigned mediator shall appear by video for video mediations."

The rule uses two terms, "shall" and "presumptively" that some would argue are a mandate, and a presumption. One might float a variety of counter-arguments on the "shall," with numerous published Florida court opinions that do not put much stock in the word "shall." Historically, the courts have been less than consistent with their respect for, and deference to, the use of that word. 

The mediation rule proceeds to repeatedly refer to the "live or virtual" and there is reference also to the "video or live." The rule specifically references "a live mediation." Rule 60Q6.111 perhaps provides clarity in that it spells out that:

"Any party seeking a live mediation in a district office may request same from the assigned mediator no later than 30 days before the date of the scheduled state mediation. The mediator’s decision to hold a live mediation may result in reassignment to a different mediator. Any request for non-virtual mediation in a location other than a district office shall be by motion directed to the Deputy Chief Judge."

Some feel that this is suggestive that a party could request a non-virtual mediation or a live mediation. Others feel that this rule is plain in that regard. Overall, it seems plausible that all mediations will be virtual (presumptively) and that a party might seek an alternative process, effectively rebutting that presumption. 

The prosecution of claims rule, Rule 60Q6.116, is less specific and makes no explicit mention of video proceedings. That rule also makes no mention of "presumption," though the Court has certainly provided precedent for inferring precedent. Of course, those prior court decisions may or may not be of import, see Precedent and Statutes (August 2023). 

The two rules, read together, might form a viable argument that there is an inferred presumption for virtual hearings, that a party may seek "live" or "non-virtual," and that exceptions could be made.

Rule 60Q6.116 provides:

(3) "The judge may conduct any proceedings by telephone conference"

(4) "The judge may conduct any proceedings using video teleconference equipment, platforms, or applications."

The rule proceeds to suggest that a setting for virtual or video may be reconsidered:

"A motion for an in-person hearing or mediation, instead of a video teleconference proceeding, may be granted upon a showing of good cause."

There is not patent, parallel language in Rule 60Q6.116 ("presumptively"). However, there are those who argue that because the rule includes a path away from video, but not a specific path to video, then there must be some unspoken or inferred presumption that all trials will be by video unless that path is engaged. That is, that video proceedings must be presumed by the rule, despite the absence of that word (a la Castellanos).

Notably, there may be a plethora of issues upon which parties might wish adjudication. The path for any such decision is arguably clear in Rule 60Q6.115(1):

"Any request for an order or for other relief shall be by motion and shall have a title describing the relief requested."

Some would argue that is reasonably broad ("any" and "other") and empowers or recognizes the authority for adjudicating various disputes that are not necessarily spelled out elsewhere in the rules. One might conclude that this affords the path to seek relief "to video" despite there being no specific statement of such a path. Some would argue that there is a plethora of such relief potentially afforded in this generality despite the absence of specifics in an array of examples. 

Nonetheless, the presumption argument seems to track, therefore, that all hearings are mandated to be video unless that "showing of good cause" is made. Presumably, the argument would be that the judge would have to demonstrate good cause to either order an in-person proceeding or deny a stipulation for that video process. That is an intriguing argument. 

One would have to decide several points in unpacking the apparent arguments in this interpretation. Furthermore, there may be arguments not voiced above that could be made, and perhaps successfully. Thus, there is likely no answer at this moment. But, any answer would likely have to also recognize that the judge is granted discretion in the rules. They each say "may conduct." An argument might be made that those words alone connote judicial discretion. 

If the presumption argument above were accepted, and the conclusion was reached that all trials are presumptively video, then one might question why the rules would say "may conduct." If there is such a presumption, what purpose would "may conduct" serve? If the rules were interpreted as presuming video, then empowering a judge to "may" (discretion) would seem surplus to some and utterly illogical perhaps to others. 

In the end, the presumption argument seems difficult to accept. It would perhaps seem more logical to conclude that the drafters of the rules could as easily have included "presumption" in Rule 60Q6.116 and Rule 60Q6.111. The inclusion of that word in one and not the other would seemingly, or at least arguably, have import to the argument but perhaps less to the Court. While the argument is interesting, it is difficult to perceive a presumption for video hearings. 

The policy argument that has been voiced is broader. It is focused upon convenience to the parties, conservation of time and fossil fuels, and economy writ large. The appeal of these is apparent in the demeanor of some of those who have raised the "presumptive video trial" argument.

One explained to me that data is available at the lawyer's desk. Appearing by video the lawyer has access to all documents and is empowered. When the lawyer travels, instead, thousands of pages must be printed on paper and transported. Those pages are later shredded upon return to the lawyer's office. This is argued as a tremendous waste of time and forest resources. 

Of course, all those documents that are digital at the lawyer's desk can be digital on a laptop computer at a live hearing. By wifi access during the hearing, or by saving those to a disk instead of printing them, those can be accessible. The "save the trees" argument is perhaps more difficult to comprehend than the "save the time and gas" arguments. Some might find the "save the trees" a distracting argument in the age when a terabyte of computer memory can be obtained for less than $50.00 and most lawyers would struggle to ever gather such a volume of data. 

Some reportedly extend this policy argument to the economy of convenience. There is, some posit, a fixed quantity of convenience in the world. They argue that anything that makes one person's life easier makes someone else's harder. They argue that convenience is a "zero-sum gain." In this context, they cite section 440.25(4)(d) and the requirements regarding "the final hearing" and the "petition for benefits." The statute requires that the "final hearing shall be held . . . in the county where the injury occurred."

This argument rests on the premise that any party may insist that any live proceeding must be held in the county of accident. The proponents of this seem to assert that therefore there is either convenience to the judge (remaining in the office as parties travel there) or there is convenience to the parties as they remain stationary (and the judge travels to them). Their argument seems to be that video or virtual solves this "zero-sum" and allows convenience to each.

Perhaps. But. 

There may be those who would argue about the distinction possible between a "final hearing" and other hearings. Perhaps one might argue that a hearing is a hearing and that all must be held in the county of accident upon request. But, others would note that is not what the statute actually says. Those who exhalt the statute might follow its exact letter and apply that requirement only to a final hearing on the petition. But, some might see a more expansive inclusion somehow inferred by the statute as they see the "presumption" inferred by the rule. 

One might nonetheless make the policy arguments about the expense and inconvenience of travel. In the trial setting that might include lawyers, parties, and witnesses. It is easy to see that the convenience of the many might justify a traveling judge. I have traveled to hear many cases in my time here. Despite the seeming limitation of such a "county of accident" to PFB and trial, those economy arguments might nonetheless be argued to apply to any hearing (or not). That said, those are likely policy arguments more than they are statutory interpretation arguments. The courts have instructed that statutory construction is not needed or warranted when a statute is clear. 

Thus we end the exposition of these arguments and an important point. As yet, no one has explained how anyone has the authority to tell a judge where or how to conduct proceedings, with the possible exception of the final hearing found in the statute. Perhaps in the end, the most important of the cited authorities is the one about "Any request for an order or for other relief." So often, the answer to a question of why or how comes back around to "file a motion." The path to asking a judge for a decision is really that simple. 

And in that regard, there could be relevance in chronology. When should such a request be made? I would suggest that it should be made as soon as possible. There is nothing wrong with such a motion the day before a hearing, if that is when the circumstances arose (e.g. a witness in a horrific accident and suddenly unable to travel to the hearing). 

But if the circumstance is known or patent when the hearing is noticed, such a motion to change the process filed months later and the day before the hearing may seem a bit Pat Benetar ("It's a little too little, it's a little too late," Little too Little, Chrysallis Records, 1982). As with many topics in litigation, the sooner the better may be the more advisable approach.

In the end, whether to hold hearings live, video, or telephonically would appear to be largely within the discretion of the judge. That may be different for final hearings on Petitions. In any event, the path to change from what is noticed would seem to be a motion. The time for the motion would seem to be immediately. The arguments for or against such a motion would seem to be potentially diverse, interesting, and perhaps persuasive, depending on how they were pled, argued, and supported with authority. 

However, the argument that there is some unvoiced and inferred Castellanos presumption of video hearings is perhaps destined to be a reasonably tough sale at first glance. However, the creative lawyer might successfully make such an argument despite the absence of that word. 

This blog is not legal authority and should not be cited in pleadings or arguments. Such use is at the risk of the user. See Citing Authority (August 2023).

Lesson and Reminders

WCI 2023 was educational for me. I’ve had a few moments to reflect, and I find myself back in the good old days, listening to Coming Around Again by Carly Simon (Artista 1987).

“I know nothing stays the same

But if you're willing to play the game

It's coming around again”

I struggle to come up with a song of hers that was not powerful and thought-provoking. I’m certain it’s out there, I just haven’t discovered it yet. But this one reminds us that life is cyclical, challenging, and bears introspection.

Just before the WCI 2023, an exceptional emerging leader attorney questioned about the professionalism standards adopted by the Workers' Compensation Section of the Florida Bar last century (1997). The lawyer expressed surprise at having “discovered“ these ideals. There was, to be honest, some flavor of disappointment in the lawyer's tone, that these are not better, more frequently, more persistently brought to our collective conscience.

I am ancient enough to remember when these first became “a thing,“ led by the Trial Section of the Florida Bar in 1994. The Worker’s Compensation section did some tweaking, and adjusting from the springboard of that effort and adopted these standards in 1997. I vividly recall the section returning to the topic in 2012.

Then, there was lamentation that these had fallen by the wayside. The initial excitement of professionalism standards in 1997 had given way a decade later to unawareness and acquiescence. The demands of yesterday had yielded to the challenges of that today. Similarly, at some point in the decade since 2012, it happened again. Go figure. "Deja vu all over again."

I was pleased that the topic was raised last month. I was proud to join a renewed effort at lawyer awareness of these standards. At the WCI, the emerging leaders distributed 400 copies of the professionalism standards at the attorney breakout sessions. Judge Kem Thomas, the only DCA judge who is a member of the Worker’s Compensation Section, reiterated the importance of the standards in her comments there. Perhaps a coincidence, in which case we must conclude that great minds think alike (the emerging leader lawyer and the venerated Judge). Or perhaps there was concert there?

I accept a modicum of the blame for these standards slipping from our daily focus. I was surprised when I was questioned after the program as to why the OJCC website does not include a copy. Short answer: “I don’t know“ (Jeff Spicoli, Fast Times at Ridgemont High, Universal, 1982). I guess the best answer is it wasn’t a priority. That answer is the best I have and is woefully inadequate. That is on me. And it brings self-disappointment and chagrin.

That we failed yesterday does not change in any way that great strides were made in adopting, revising, and promoting these standards in the past. That we failed yesterday does not preclude or hinder our doing a better job tomorrow. That we have emerging leaders who are bringing fresh eyes to persistent professionalism problems is not grounds for regret, but I would suggest grounds for celebration. The days become congested with tasks and challenges, as Carly intoned:

“You pay the grocer

You fix the toaster

Kiss the host good-bye

Then you break a window

Burn the soufflé?

Scream the lullaby”

Yes, the day-to-day becomes trying. The challenges of the practice of law are many, and the frustrations sometimes multiply. But I look to the next generation to continue to bring us back to the touchstones and to make the practice worthy of our admiration and attention.

The practice of law, unfortunately, can bring one into contact with disappointing and frustrating souls. It is akin to a swimming pool that brings the potential for challenge, refreshment, inspiration, and achievement each time one enters. This analogy is about to become crass (Apologies. Quit reading now if you wish to avoid some frank and perhaps brutal perspective).

Beware, there are turds in the pool. Whether one is merely swimming across the pool or swimming laps, dipping a toe, or immersing, the moment of encountering one of those may be disheartening or worse. It is not new, there have always been some in the pool that were less than pleasant, some who were erratic, and unfortunately, some who are turds. Everyone wants to avoid those. Many discuss them. I hesitated to label them so (it is admittedly rude), but some seem to revel in that reputation. 

It is not clear whether the population of turds is increasing, or whether the others in the pool have just come to be more conscious of their presence. Regardless, I persistently hear from young lawyers about their disappointment at encountering such personalities or behavior. The turds can be condescending, pompous, inconsiderate, obsequious, and worse . . .  we all get the picture. 

A young lawyer recently related to me that an older lawyer of some repute and respect was not so professional with her. She described behavior that was at best boorish. There remains, in 2023, a population of lawyers that seem to display disregard and disrespect that may stem from current or past particular interactions or conflict, or perhaps from remaining vestiges of misogyny or other similar categorical disrespect. 

That is a sobering thought. Bias is a natural human condition that we must each fight (dump your prejudices against us cookie addicts, we are not all bad). It is also possible that this young lawyer encountered instead someone having an isolated bad day. It is possible that some unspoken or unnoticed slight has built an unrecognized friction or animosity between these two lawyers. If so, open and frank communication is the best path forward. Meet that head-on and figure out if there is a real problem or misconception(s). Don't conclude too readily that someone is necessarily one of the turds to be persistently avoided. 

Each day spent in the pool we could become more or less conscious of the turds. We perhaps become less shocked at their antics and more accepting. We may become less inclined to deal with them and more motivated to avoid them. Horace Middlemier* has voiced that he believes this avoidance is even the goal of those personalities. He believes others will simply acquiesce and compromise to avoid contact and conflict. They will, in effect, strive to swim around the turds rather than confront them. 

Perhaps it is in us to decide whether we will be the professional, ethical, zealous advocate, for our client, or whether we will trend towards turdiness? Unfortunately, perhaps each day when we arise we each face a personal choice of how we will live this day. That a person was obsequious yesterday does not dictate that she/he/we would be so today. Nor similarly that yesterday's virtue is a guarantee. I would suggest that today is today and how you are and are perceived today is a choice you can make, today.

If you haven’t reviewed the guidelines for professionalism, lately, know that they’re now back on the OJCC website for your convenience. They have been on the Section's site all along (Their persistence is noted and admired). In months to come, I will renew our efforts to bring these standards back to the fore. I will strive to make them part of our focus on a better practice. Will you?

This blog is not a legal authority, see Citing Authority (August 2023). Any citation of these ramblings is at the risk of the user. 

*Ed. Note Horace is a fictional compilation and literary device. There is no Horace known. Any resemblance to any real person, living or dead, is purely coincidental and unintended. 

Citing Authority

Years ago, in the Jurassic period, I attended law school in the South. Despite my Southern roots, I would not characterize myself as a Southerner in that era. Gathered for one of the earliest classes, I encountered the first of several professors who enjoyed the Socratic method. It was alien to me and took some getting used to. It is essentially the professor interrogating the student. It takes some students a while to comprehend that there is no right answer to any of the questions and the process is more torture than teaching. Those who relish in it might perhaps benefit from some counseling. 

One early encounter will stick forever in my mind. A young man named Dave Galyon was being interrogated by Professor Craig Callen. Professor Callen reveled in the role of grand inquisitor, was spiteful and hurtful in his approach, and was not well-liked. Eventually, Mr. Callen noted regarding one of the responses "That dog won't hunt." Mr. Galyon, the quicker wit of the two (by far), responded deadpan "Sorry professor, that is the only dog I've got."

A lesson for law students and lawyers is that the job is to make an argument. Judges and courts are rarely looking for, or persuaded by, lawyer opinions. They seek authority. That can come in many forms, stare decisis is one. See Precedent and Statutes (August 2023). Another way to view this was voiced by W. Edward Deming "In God we trust, all others bring data." We might rephrase it here as "In God we trust, all others bring authority." 

Many legal scholars divide authority into two main categories: "primary" and "secondary." My school of thought also includes the dreaded "tertiary." I include some further latitude in this description and prefer "tertiary and beyond." 

Beyond this division into categories, lawyers then discuss whether authority is mandatory and binding or whether it is only persuasive. If mandatory, the court is theoretically obligated to apply that to a dispute. If persuasive, then it may choose whether to apply it or not. Early in the process of legal training, these two distinctions are more important than they are in the real world. As one matures, there comes a realization that courts can often do as they wish and are not actually "bound" or obligated in any manner. As we age, perhaps we see that more clearly and readily in our analysis of decisions.

In one illustrative example, the illustrious Richard Sicking of Florida was reportedly asked in an oral argument, essentially, "What can we do?" Mr. Sicking is said to have replied, essentially, "You are the Supreme Court, you can do whatever you want." Not the legal answer. Perhaps not even a valid answer to some. But an answer the court both wanted to hear and took to heart. In that instance, the court indeed did whatever it wanted, and to some, their conclusions were without the law, the authority. As Deming suggested, when you are God there is less need for imprimatur. 

For more on being right, see Recent Decisions May Caution Supervisors (September 2016). Mr. Justice Jackson's infamous quote on the authority of courts is a must-read for those who would study the law. 

In American law, it is generally accepted that there is a "hierarchy" of laws. This places at the apex the constitutions (federal and state), then statutes, judicial opinions, and administrative regulations. One might see congruity in this as regards the foundations of America. "We the people" formed government, and it is from us that government receives its power, through the constitution(s). The people are the apex, endowed by their creator with inalienable rights. The people cede some degree of those rights in granting authority or power to government. Government should not take power, but if needed should seek it from us.

I remind my students persistently that their rights are inherent ("existing in something as a permanent, essential, or characteristic attribute"). We discuss how Americans give up their rights, and have persistently through my time in this country. When? Usually when there is fear. We trade our rights for perceptions of safety. Ben Franklin spotted this early on. His thoughts have had their critics, but I have seen it over and over. 

It is the people who ratified the United States Constitution, and those of the states. It is the people who thus empowered legislatures to act on their behalf in a representative capacity to consider issues and enact statutes. As an extension of "we," as delegates of "we," it is appropriate that their actions are second in the hierarchy. 

It is for the courts to interpret those laws. With no disrespect to Mr. Sicking, I would suggest instead that courts are bound in this regard to remain true to the authority "we the people" have granted to them in that constitutional process. As kids today might say, "to stay in their lane." As we did not empower courts to "make" law, courts should respect the scope of the authority "we" delegated to them and interpret law (constitutions and statutes). 

And, having granted, specifically, authority to those two constitutional branches, we might readily see that when the legislature delegates its authority to the Executive branch, then administrative regulations may result. The constitutions empower the Executive branch for its core functions. But it is the legislative delegation of authority to administrative agencies, through "enabling statutes" that lies at the root of broad administrative authority. 

We see that "we" did not create administrative agencies. Those branches "we" created, in turn, created and empowered administrative agencies and imbued them with power (a subset of the power "we" originally conveyed). Thus, their inferiority to both legislatures and courst is patent and we might thus refer to the constitutional empowerment of legislatures and courts as primary, and the legislative delegation as creating a secondary Executive authority. 

In this hierarchy, we see a symmetry:

• People - delegating through and empowering by Constitution
• Legislatures - defining and delegating through elected representatives of the people
• Courts - defining and interpreting through appointed (and perhaps elected) judges, constitutionally defined
• Regulators - defining and interpreting through secondary authority delegated to them secondarily

The hierarchy of law is patently consistent with the source. We exalt that which is of the people first, their representatives second, the interpretations third, and the actions of appointed or hired regulators last. In any argument, it is best to have the Constitution on your side, without such imprimatur, the advocate descends, extends, to the rungs below. This progression, or perhaps more aptly regression, should be in order. 

In other words, if the Constitution is clear and on your side, stick with that argument. There is no need for an explanation of how some regulation also supports your point. If a statute wins the day, there is no need perhaps for decisional law. But, as a legal scholar recently reminded me, the process of legal education in America exalts the decisional law. The lure of case law is intertwined in the roots from the first day of law school and infects the majority of coursework. The textbooks are largely based on the wise decisions of various courts and ignore the primary constitutions and statutes. 

When courts consider questions and disputes, it is thus appropriate to consider the Constitution. In a sound example, the Florida Supreme Court in 2004 addressed procedural rules for workers' compensation and concluded it had no authority for such rules. Despite an array of precedents (multiple prior court decisions) in which it had adopted and exercised such authority, despite legislative action in which there had been inappropriate delegation of authority, the court looked first to the Constitution. It concluded in that hierarchy that it lacked authority and that it always had. 

Court decisions, you see, can be wrong. Amends. to the Fla. Rules of Workers' Comp. Proc., 891 So. 2d 474 (Fla. 2004). Legal scholars can be wrong.

Students are trained or even indoctrinated to go first to the decisions of the courts. In making an argument, they are taught the method of "that court interpreted the law this way, so should you." It is not that those interpretations may not be controlling, they may. It is not that those interpretations may not be persuasive, they may. It is, instead, that those interpretations are third on a list we have come to accept, and shifting to the third choice without consideration of the first two may be untoward at best and even unwise. 

I recently received an email from a lawyer. He was essentially asking how to find one of these blog posts. I forget the point, but the essence was the lawyer was in a dispute and apparently intended to refer his opponent (and perhaps an adjudicator) to this blog. I responded with a link to that blog post, and to the foundation upon which it rested. I reminded that it is the authority in the blog that one might argue, and less likely the blog itself. 

Stated differently, if you wish to argue that the Supreme Court can both be wrong and can rectify its mistakes, cite Amends., 891 So. 2d 474 (Fla. 2004) instead of citing this (or any) blog. This blog is not authority, or at best is somewhere south of secondary (perhaps very far south). It might be complimentary to refer to it as tertiary. But, the Supreme Court's analysis in Amends.,(2) might just carry your argument. Before you go there, perhaps you might instead argue the Constitution (1) that the court cited there. The tertiary (blog) might help one to understand, guide one to better tools, but is not likely to be persuasive. 

Of the roughly eight billion people on this planet, you might find that precisely two care about what is written here (Thanks Mom). But, it is possible that you would not even persuade me with citation to one of my posts. In short, cite this blog when you are at your wit's end when there is nothing else, when you are utterly at a loss. In other words, if it is "the only dog you have," well then do as you must. But know that when you do you may telegraph to the listener just how desperate for authority you are. 

Several years ago, while attending a WCI conference, I was present for the Zehmer Moot Court final when a tremendous team from my alma mater took center stage in the final round. An amazing argument ensued. In the course of their victory, that team cited this blog. See An Amazing Monday at WCI (August 2016). I was admittedly flattered, but I cautioned them after, as above. 

After this post was drafted and set for publication, I attended WCI 2023. In the midst of the chaos that is my course each year at WCI, my phone alerted. An attendee texted that this blog had just been cited in the live oral argument presentation down the hall. This, I am told, drew laughter from the audience and bench. I am certain that was the intent. There is power in levity, which is too often misunderstood and periodically misinterpreted. I might be flattered by the reference. But I assure you that no court will likely be persuaded by it. 

This is a blog. A rambling and some say often incoherent, exposition of my thoughts. If you find it interesting, that makes me proud. If you find it helpful, that is gratifying. If you think it is legal authority, perhaps think again. 

It Was Palpable

The WCI 2023 opened Sunday with a series of events, well, Saturday I guess. A decade ago, this educational conference got into the public service arena with a "work day" event on the Saturday preceding. I know people that have made an annual visit to Give Kids the World as part of their WCI experience. There are other events, but this workday is so egalitarian. It is amazing to see 600 professionals don their work clothes and board buses. 

I have written about the event several times, and am a bit chagrinned to not be in the "ten times" club as we mark the decade. This conference can be a big commitment, with the drive on each end it is a minimum of five days, and Saturday makes it longer. But the community. For some past perspectives, there is Not the Same and Yet (August 2020), Dr. James McClusky (April 2023), and Our Hope for Tomorrow (August 2022). But for humanity and community, 2018 will forever stick in my mind, see Give Kids the World - Our Community (August 2018).

It was palpable. 

Sunday dawned on the Kids' Chance Golf Tournament (third annual). This event has been an outpouring of recognition for a simple truth. Work accidents impact workers and employers, but there is a significant additional impact on the workers' families. There are spouses and kids that see the effects of a work accident. Kids' Chance is among the groups that strive to provide scholarships for those kids. I have been proud to serve on its founding board since 2015. This summer we approved 14 scholarships for Florida students. Overall, Kids chance has touched almost 9,000 lives to the tune of over $30 million. Speachless. 

That tournament is about golf. But it is about community. I am amazed at the faces I see from around the country, and around the state. They are engaging for the kids, but I believe they are driven by the community, camaraderie, and fellowship. I see hugging, handshakes, and brightened countenances. These people are glad to be together, to be catching up, to be engaging (engaged).  

It was palpable. 

The OJCC hosted a meet and greet with the judges and mediators Sunday evening. It was intended as a recognition of the remoteness that can come from virtual proceedings. I thought we might draw 30-40 folks. I was so wrong it was laughable. Somewhere near 200 people showed up. There were smiles, laughter, and recognition. Mediators have been exclusively Zoom for about a year. There is efficiency and effectiveness from that paradigm, but perhaps some loss of the casual interaction and humanity that is part of our humanity.

I heard someone greet a lawyer with "you have a body too," an obvious recognition that the world of Zoom is so limited to a small image of the face. Another commented that someone was "much taller than I remembered." It is unfortunate, but in the world of Zoom, we see each other less often. I noticed that there were many comments on how long it had been since someone had seen someone they were greeting, but with the recognition "you know, really seen you."

It was palpable. 

I have been proud to participate since 2009 with the National Association of Workers' Compensation Judiciary. They gather for a college in conjunction with the WCI. It is amazing that it has been so well attended over the years. About 100 adjudicators gather to share their experiences, have exposure to new ideas, and strive for excellence. I have been amazed at the quality of the education they make available at a nominal price and at the geographic diversity of the attendees. 

It is unfortunate that every workers' compensation judge in America cannot join this coterie each August. There is community in the gathering. It is an important opportunity that judges should relish. There is education, information, and collaboration. As in years past, I have been astounded at their interaction and effectiveness. As they arrived, one by one, there was recognition, interaction, and energy. 

It was palpable. 

Monday brought the WCI opening session. There were selfies and hugs. I see so many people engaging with their peers. It was different in 2023. There were more people in the opening. The format was different and more engaging. Gone was the head-table and the atmosphere was different. Speakers each took the stage solo from behind the curtain. They said their peace and introduced the next speaker. It had a pace and cadence that was refreshing. There were new faces, and that too was different. 

Doug Clark was back though. He is the WCI chair for the Give Kids the World (GKTW) effort. He described the efforts and called Pam Landwirth to the stage. A "big check" was presented after he noted that $218,000 was raised this year. The WCI community has reportedly raised over $1 million in the last decade. 

Ms. Landwirth is the CEO of GKTW. She related a story of a kid whose trip was repeatedly delayed. When he finally got his wish, she asked if the wait was worth it. He replied, "I'm smiling so much my teeth are tired." She noted to the crowd that lots of kids' teeth will get tired because of the efforts of this community. It was a touching and rewarding moment for all. 

It was palpable. 

The halls were filled with people. The sessions I visited were well-attended. There were some disappointments. I see a fair few who would rather wander the halls than learn something. Or maybe they are learning something by wandering the halls? It somewhat reminded me of high school. Remember that group that was rarely in class? Some things, perhaps, never change. 

The Florida Bar Workers' Compensation Section is hard at work planning future events. In 2022-23, they produced meet and greets in Ft. Myers, Jacksonville, Orlando, and Tampa. This fall, it will bring us to Miami District for a meet and greet with local lawyers. There will be opportunities for the Section to speak with law students at various schools. 

There is a sense of community that is building, a groundswell of interest in building a bridge to the youth that will lead tomorrow. A palpable desire to reconnect and communicate. It is gratifying. And, it is exemplified in the obvious sense of community, engagement, and interaction. It is rewarding to us all. I hope to see you at such an event. Perhaps next spring at the Forum if not before?

Virtual Productivity

I am at the WCI this week. It is a definition of diverse viewpoints and interesting perspectives. I met a lady whose company "went remote for the pandemic" and remains so now. I engaged in a conversation about how another company will "never transition to remote." There are feelings, sentiments, and postures. Like many aspects of the comp world, each perspective is fully committed to its conclusions and perceptions. 

It is fascinating. Forbes recently published an article regarding remote work: The Productivity Problem With Remote Work.

The point is a recent study, released by Stanford University, regarding remote work, hybrid, work, and perceptions of productivity. Yes, that Stanford, the one at which the president recently resigned over allegations regarding data. Yes, the one mentioned regarding Title IX. Yes, where Elizabeth Holmes went to college. The San Francisco Chronicle and the Palo Alto Post have recently been critical of the school, its recent history, and perhaps its course. 

Nonetheless, it produced a recent report regarding presenteeism, and perceptions. It is intriguing to consider those perceptions.

The study comes soon after I had the opportunity to discuss virtual work with leaders from several states, and just before the annual foray to Orlando. Despite the unequivocal end of any real COVID-19 concerns, a fair few jurisdictions have not returned to full-office engagement. That posture is alien to us in Florida, having never shut down, abandon, or avoided. Here, there was no “coming back“ for the Florida OJCC to contemplate. Absent a few isolated days for cleaning, we proudly served throughout the pandemic, all offices open, fully staffed, and focused. Several at the WCI have described their journeys back to the office. Interactions reveal a great variety in response and reaction, as well as in the presenteeism debate. 

The Stanford study concludes “that productivity drops with remote work.” This data is counterintuitive in light of the repeated assurances that we have heard from workforces. I have yet to encounter a single telecommuter who even suggests the possibility of lower productivity at home. They are 100% adamant that working from home is just as productive or more. They who enjoy working from home are uniformly, unanimously, and strenuously supportive of it. 

There is a noted disparity in the perceptions of workers and management. Workers believe themselves to be more productive, “about 7% higher,” working from home. Managers perceive productivity to be lower at home “about 3.5% lower.” it is important that these are perceptions. This is self-reporting. There may be some degree of personal bias or at least subjectivity in those survey responses. They are math and estimates. It is also important that these are averages. 

Averages can be challenging. A company might have a remote workforce of 10 fully-remote individuals. Most might be very productive, but if one of these is a “lazy“ employee who merely cuts and paste 2–3 emails, and makes a few phone calls each day, their minimal productivity might lower the overall team dynamic to 90% of what is expected. See Hip to be Square (August 2023). Imagine 10 employees each hitting a perfect "10" day making 100%, but the one slouch hitting zero means that the team achieves only 9/10.

Regardless of whether productivity is or is not actually better or worse, these results demonstrate the probability that perceptions at least will be challenging. Beyond perception, “The Stanford analysis across multiple studies found a 10% to 20% reduction in productivity.” The numbers seem to support that remote work is not as productive. Again, averages. Twenty percent? That is troubling. If true, that would mean that maintaining production would require more employees. 

Imagine that we are making widgets (no, I don't know what they are either, but every professor uses them somehow, if even just as examples). If an in-office employee usually makes 20 per day, then our hypothetical team of 10 workers would make 200 each day. If, when shifted to virtual, that drops by 20%, then each produces 16 per day, and the team drops to 160. To return to the 200 level requires more than two additional "virtual" employees (200-160=40). Two more 16s only yield 32. Two more virtual employees brings us back only to 192. Three would bring us to 208. The company payroll (if only these widget makers worked there) would perhaps increase close to 30%).

The pro-virtual camp would be quick to point out that (1) they are just as productive at home and Stanford's statistics cannot be trusted, and (2) even if the stats are trustworthy, the company could save many dollars with decreasing office space and other expenditures and thus easily afford the additional staff to make widgets. Real estate is expensive, but whether that math would work is an intriguing question. There are undoubtedly cost savings (commute, wardrobe), but those are personal not company savings. Perhaps pay could be diminished to account for cost?

Despite the body of evidence regarding productivity, the Stanford report concludes unequivocally that telecommuting rates are increasing, the “rates of working remotely have doubled every 15 years.” The patient appears to be quickening.

How is work being performed? The report concludes that “60% of workers are at the workplace full time, . . . Hybrid workers make up about 30%,” and 10% are “fully remote.” as we might imagine, the chances of working fully remote increase markedly with education. That “71% of knowledge workers were remote at least once a week, and 82% worked for companies who expected them to be in the office at least some of their time.” Thus, there seems support for the representation that hybrid workers are three times the population of fully remote. With the hybrid is an ongoing need for real estate that represents a cost. 

Interestingly, there is no demonstrated difference between men and women, in terms of the hybrid and remote populations. However, the report notes. Significant differences in the desire for the non-traditional work environment. Women are more likely to chic such. Accommodations. It is also interesting that the older generation is not the driving force in this pursuit. “Employees in their 30s and 40s are also most likely to work from home.” One might question whether this has any relationship to child-rearing and the panoply of family commitments that accompany it. 

There are thoughts beyond the "that" productivity is decreased. In analyzing the "why," the study makes no singular culprit known. It suggests some potential causes, depending on the nature of the work and its conditions. Suggested causes include:

• challenges in communicating and coordinating work;
• degradation of communication networks and
• reduction of new connections;
• reduced creativity partly because of multi-tasking, rather than being fully focused in person together; and
• a reduction in learning, mentoring and feedback.

These are not the only drivers but are worthy of consideration. There are also distractions that factor into the productivity equation. There is data out there that supports remote workers are spending a fair amount of their work time on other tasks. These include:

• scrolling social media (75% of people), 
• shopping online (70%), 
• watching shows or movies (53%) and 
• planning trips (32%).

Away from their computers, workers purportedly spend part of their workday on tasks such as:

• household chores (72%), 
• errands (37%), 
• napping (22%), 
• going to the doctor (23%) or 
• drinking (12%). 

These numbers also support that some remote workers (13%) "report they work only three or four hours per day when they are remote." If they can make 80% of the widgets they normally could in the office and can do so in 3 hours, that is pretty impressive. But, perhaps that begs some other questions. 

For example: are people surfing the internet when they are in the office? I see a great many smartphones in the workplace. Often they are on a desk, but more often they are in someone's hands. I struggle with what work function they might be fulfilling with their phone; calculator or calendar maybe? Are people napping in the office? In that regard, does daydreaming count?

This study will be added to the variety of factors that management considers in the world of work. There will be persistence in the desire to work remotely. All else equal, the absence of the commute will drive a great deal of this, as will wardrobe, comfort, and quiet. One person lauded that they go to work in their slippers and don't wear makeup when telecommuting. Those are benefits. 

Personally, the quiet is what I could not become accustomed to in the 6 months during which I worked virtually one day weekly. No, the pandemic did not drive that decision. Some people did not do their jobs back in September 2020. In the midst of a pandemic, we were challenged in Paradise with a hurricane. It was not much of a storm, but a construction company failed to secure its equipment. What was once a bridge was rendered a pretty useless "half-bridge" for about six months. The commute of a few minutes turned into a daily ordeal. See If you were Half the Bridge I am, (June 2021). 

Thus, temporarily, I found it wise to dodge the commute one day each week. I cannot say I enjoyed virtual work. I like being in the office. I get a great deal of work done in the office. But, for a lot of people the 1.5 hours each way, each day commute begins to wear. I get why they would strive to minimize it. Virtual has its personal benefits. I also get why the trend, however, is not full remote but hybrid. Some portion of time in a group environment is perhaps critical.

Stanford also concluded that the most common "in-office" days for those who are hybrid are Tuesdays and Thursdays. Don't those four-day weekends get burdensome? And in that flavor, why not Wednesday? How is it not among the most common? The point of all of this is that there are proponents and critics. There are perceptions and beliefs. There are studies showing problems or complications. And there is adamate belief, support, and desire. 

The world is changing. The trip is not over. Buckle up. 

Precedent and Statutes

It has been my privilege and pleasure to teach a great many students the law over the years. While business law has been my forte, I have enjoyed forays into workers' compensation, evidence, constitutional law, legal writing, and beyond. Interlaced within these is a legal concept that is too often vexing for students. It is not so difficult to grasp the essence of the concept, but successful application requires a bit of dexterity that is an acquired taste. 

The concept is stare decisis ("let the decision stand"). There is great value in predictability in the law. If the parties can predict outcomes, and approximate odds of success (or failure), they can make informed decisions and literally solve their own problems through negotiation, interaction, and cooperation. That drive for predictability is the easy part to grasp. We strive to decide today's case in concert with the way yesterday's case was decided. Judges follow the decisions previously rendered. That is the "common law" and is a tradition of British law that we inherited in America. 

Students are more challenged by the friction between that legal maxim and the world of statutory construction. You see, workers' compensation and other issues have been addressed by elected representatives. These are statutory constructs. Statutes can change, and they can change the "common law." Thus, there is a friction, an inevitable conflict between the desire to respect the decisions of yesterday and to emulate their outcomes, and the potentially "moving target" of statutory construction. Comprehension is a struggle for some as they strive to begin their legal education. 

It is understandable, and a great deal of patience is invested in repetitive explanations. Unfortunately, a fair number of lawyers never get the subtlety. Judges encounter those lawyers every day. One must respect their drive for uniformity and consistency, their passionate devotion to yesterday. But the unwavering deference to "precedent" is worthy of further analysis and consideration.  

The example I use often is the decision of the United States Supreme Court in Dred Scott v. Sandford, 60 U.S. 393, 15 L. Ed. 691 (1857). In this decision, the highest court in the land, interpreted the law as those justices perceived it, and made conclusions regarding the possessory/property rights of humans over other humans. This is an infamous example of judicial interpretation that was a staple of high school history books for many years. It perhaps remains featured in those curricula today, though I have not ventured into such texts of late. 

That is a decision of The United States Supreme Court. The "common law" absolutists in the crowd would perhaps tell you that lower courts must always follow decisions of such superior courts. And by "always," perhaps they would insist they mean "always." Absolutely. They might phrase it eloquently, and suggest neglect when a judge takes a view disparate to a decision of a higher court:

"This . . . correctly concedes that the . . . decision is contrary to Florida Supreme Court precedent . . . .. We lack authority to do that."

We, the lower court, can never disagree with the superior court. Or, perhaps we might? Intriguingly, Dred Scott and its support for slavery has not been expressly overruled. The Supreme Court has never returned to concede that Dred Scott was incorrect when drafted (it was), or at a minimum that it is not correct today (it is not). 

Thus, Dred Scott is a decision of the highest court in the land. And it is coincidentally wrong. Some would say farcically so. But the absolutists might argue it should be followed, faithfully, and blindly. Justice, as they say, is blind. Should it be? Or should it be reasoned and rational?

In the law, we have tools that help us to evaluate decisional law from courts. We check citations and determine if a case has been overruled. That is when the same court or a higher court determines that a case is wrong or inappropriate for application. The court might determine it is wrong (overruled), inappropriate in the present instance (distinguished), or otherwise avoided. 

But if you check on Dred Scott, there is no judicial overruling. There is distinguishing. There is suggestion that it is "superseded." You see, after Dred Scott was decided, the law in America changed. Thus, other courts have cited Dred Scott and noted the ratification of the Thirteenth (1865) and Fourteenth (1868) Amendments to the U.S. Constitution. See e.g. Oliver v. Donovan, 293 F. Supp. 958, 967 (E.D.N.Y. 1968). And yet, the United States Supreme Court has never returned to the Dred Scott decision.

How dare a mere District Court ignore the Supreme Court's decision in Dred Scott?!?!? Surely, the aggrieved (losing) party in Oliver appealed that trial court decision to the Federal Circuit and then the Supreme Court. Surely, that party did not acquiesce in the trial judge failing or refusing to apply Dred, a decision of the highest court?

Well, sure they did not seek appellate review. They did not argue that precedent was inviolable and absolute. You see, Dred is not the law in America today. The law changed. Certainly, there is the inclination to respect and follow the decisions of yesterday (precedent, "common law"), but let's be clear. Justice is not blind, nor deaf, nor dumb. It is the judge's job to look at the law today, and to analyze the facts of a case in light of that law. If a prior decision of another court has interpreted that self-same law, then that decision may be "controlling" or at least "persuasive." But not if the law has changed. 

As I have noted, workers' compensation is a statutory system. It is governed by the law as created by the Legislature and as interpreted by the court(s). However, some judges decry the respect shown to those court interpretations. They insist that the analysis should be limited to the statute. They would demand we read section 440.02(32), Florida Statutes (Supp.1994), and that we ignore Vigliotti v. K-mart Corp., 680 So. 2d 466, 467 (Fla. 1st DCA 1996). 

They believe that the legislature has the power to enact laws, as the elected representatives of the People. Some see the legislative process as superior to the decisions of appointed judges who interpret such statutes. I explain to my students the checks and balances of American government, the rights of people, the powers of various branches, and the balances that are thus created. No branch is superior, each is co-equal, defined, and constrained. 

But the stare decisis fans would say no; they would exhalt the court's 1996 interpretation (Vigliotti) and decision over the statute itself. This posturing and positioning alone could keep a cocktail party conversation between two lawyers going for hours. There is friction between legislative and judicial function and authority. 

Frankly, in America today, no one would ever cite Dred Scott in any context that even suggested it should be relied upon. It is superseded by the change in the law. The people of the United States, through their elected representatives, ratified the 13th and 14th Amendments. They ended involuntary servitude and established the equal protection of laws. These two are venerated, celebrated, and fundamentally altered the foundations of American law. Neither was created by a court. They are representational democracy shifts.

Is workers' compensation any different? This is a system that began its life slanted, not level. It is a statutory system that was voluntary for decades. Florida workers' compensation was misinterpreted by the courts early to require judicial defaulting in the direction of the injured worker. The sentiment came wrapped in various titles and descriptions, but it was what it was. What the sentiment was not (ever) was statutory. The emotional expansion of workers' compensation beyond the statutory definitions and creations was all from the appointed bench.

In the early days, there was not statutory definition of "arising out of." That an accident or injury must "arise out of" employment was required, but not defined. The courts created some difficult and tangled definitions. The Legislature changed that and adopted one. A statutory one. The Legislature also changed the slanted field and leveled it. The Legislature changed the fundamental, foundational law of workers' compensation, just as Americans changed their Constitution by amendment(s). And some would argue that court decisions from an era prior to those statutory changes are of no more merit today than Dred Scott. 

Workers' compensation came to Florida in 1935. Since then the statutes has been amended notably in 1941, 1955, 1974, 1978, 1979, 1989, 1990, 1991, 1994, 2001, and 2003. Are Florida Supreme Court or District Court of Appeal decisions prior to 1994 controlling or even persuasive on the "arising out of" test for compensability? Or, does the fact that section 440.02(32), Florida Statutes (Supp.1994) did not exist matter to the appropriate analysis? Does the fact that the foundation changed in 1990 as to the level playing field matter? 

 

The treatment of Dred Scott v. Sandford, 60 U.S. 393, 15 L. Ed. 691 (1857) seems to suggest and argue that the law can change. The lack of judicial devotion to that decision seems to suggest that even a decision of the Supreme Court of the United States might not be controlling precedent when the foundations change. In a reasoned approach to deciding the law today, perhaps . . .?

Following Dred Scott today would be preposterous. Such an argument would be as nonsensical as arguing that the Detroit Lions will eventually win the Super Bowl (or the PowerBall). Either way, the odds are exceedingly long. Lawyers would be well served to move beyond "but the court said," and instead give some analysis and consideration to "why the court said," along with "is the foundation today the same?" This is, in the end, a statutory system. One which is a "derogation" of the common law. 

As such, arguments exalting the "common law," "precedent" and "stare decisis" while ignoring what the law says may lead to outcomes that are less predictable. While one might exalt the value of predictability in "stare decisis," in today's decision being similar to yesterday's, might one as validly expect that the plain language of the Legislature's statute would be given its plain meaning? Is one predictability somehow superior to the other?

Addendum:

Apologies to the Detroit Lions, their fans, the city of Detroit, its citizens, residents, and devotees. Any derogation of that/them was untoward and inappropriate. I am certain that they will, in fact, one day win the Super Bowl. However, precedent would suggest that perhaps . . . ?

Tons of water

A recent trip reminded me of the impact of carbon in our society. We face an unwavering and adamant societal condemnation of carbon emissions. There are times when one might doubt comments and perspectives. I heard a speaker recently refer to the amount of carbon humans "create." That was both a broad and incorrect statement. We do not make carbon. Carbon exists. It is around us, and certainly, our activities and actions may release carbon that is presently stored.

Carbon can be stored in a variety of forms. An easy example is trees. As trees grow, they live on carbon. They absorb it and store it, called sequestration. Trees do not dispose of carbon, but they are "sinks." They store it, and they are not alone. When a tree dies or is cut it will cease to accumulate carbon. When a tree dies (old age or is cut) that carbon is released back into the atmosphere, rapidly (burning) or not (decomposition). 

Believe it or not, you are also actually a "carbon sink" on a much smaller scale (our bodies store carbon). Most of the carbon attributable to human activity is when something is changed by us and thus carbon is emitted into the atmosphere. Some assert this is the only possible way to add carbon: "The only way to add to the carbon in the atmosphere is to take it from a sequestered source like fossil fuels - where it has been safe from the atmosphere for millions of years - and combust it." Thus, we are not "making" carbon, but releasing it from sequestration. When you die, you will do so just like a tree. 

There is a great deal in the twenty-first-century marketplace about carbon. Periodically, the option is offered to "contribute" to carbon offset. This is a business of some description recognizing that what it does produces some degree of carbon emission. That business is perhaps engaged in a breadth of efforts to minimize its pollution or to convince customers that it is. Among those efforts is the collection of your dollars to "offset" its impact, assuage its feelings, and convince you it cares (about your money at least). 

At least eleven airlines offer such an opportunity. There are estimates that airlines worldwide number in the thousands. Of course, some are larger than others in terms of fleet, flights, and other capacity or production measures. If the two lists in these links are cross-referenced, two of the ten largest airlines offer such a carbon program. I was reminded of this on my recent trip when I had the opportunity to observe the incredible volume of humans scurrying about in some large airports. Humans move around a great deal.

At my first stop on this trip, I was privileged to engage with some of the smartest people I know. Perhaps they are simply the smartest people? In either event, I am privileged to periodically watch them work. They are methodical, organized, and efficient. I watched them recently identify, discuss, and dispatch an incredible volume of information in a very brief time. They did so with a scientific approach, intense focus, interpersonal patience, and incredible collegiality.

I have watched them for some time in both in-person and remote efforts. They are incredibly effective, motivated, and dedicated. However, I am convinced that they are more effective in person than in a remote environment. I see the interactions and the asides. I perceive the "feel" of the room. There is an ease of interaction and comprehension that is less apparent or natural in the remote environment. This group is exceptional at task focus and collaboration, period. But in person, it is better still, patently, palpably. To watch them is frankly mesmerizing for a mere mortal such as myself.

The meeting facility was not unlike hundreds I have visited. Once you eat at one hotel, you may have eaten at them all. I have discerned little difference in hotel fare over the years as I made the "rubber chicken circuit." But I was struck in this setting to be offered water, bottled. We consume a great deal of bottled water in America, "15.9 billion gallons" in 2022. According to that source, our consumption is persistently growing. That consumption contributes to carbon emissions.

Each of those bottles, glass or plastic (yes, glass, heavy glass) is produced in a factory. The raw materials are shipped to that factory on some conveyance that burns fossil fuel and emits carbon. The containers are then shipped again to a water source where they are filled. The full bottles are then shipped to a distributor, a retailer, or other customer. Eventually, following some or all of these various emissions of carbon, the water is at our fingertips for consumption.

Water. It is all around us. Some of it cleaner than others. Some of it bubbly, flavored, or otherwise enhanced. But in the end, water. I don't like to brag, but I have a spigot right inside my house that has water available in various temperatures. 

That ubiquity of water occurred to me as I consumed that bottled water (my favorite brand), imported in glass bottles to the United States from Italy (5,046 miles away). I chose it over the alternative which was bottled in a small island nation in the Pacific (7,112 miles). These two were (1) the only choices of bottled water, and (2) the only choice (no pitchers of ice water from the local tap, I am not putting down the hotel if they don't have one of those indoor spigot contraptions).

I wondered as I consumed. What is the "carbon footprint" of a bottle of water? In a world of debate about remote versus in-person meetings, we may be able and willing to debate our collective and comparative efficacy from being physically present. I have witnessed it, and in-person is really more effective in various instances and situations. But, is there really any value or merit in the presence of water that has traveled thousands of miles?

What is the impact? It is multi-faceted. And it is worthy of our consideration that there are people whose very lives depend upon their work. They (I) work to eat. In a basic economic exchange, I convey some value that a market is willing to consume and for it there is pay. I use that to live, to consume other goods and services, and in the process I produce (and store) carbon. So it is also for people who harvest resources, make bottles, drive trucks, stack pallets, load trucks, drive trucks, load and unload ships, and a vast array of related tasks. Commerce is commerce. You have to work to live (well mostly, see Hip to be Square, July 2023). 

Keep in mind that this all ignores the people that make the shrink wrap and pallets. It ignores the people that produce the fossil fuels and build the vehicles that consume them. It ignores those who produce and maintain a variety of equipment, software, and more that contribute to that bottle of water reaching my hands in a hotel conference room. Literally, thousands of people are making a living through the process of providing me that water. One cannot ignore that their livelihood is inexorably tied to one's decision to consume or not consume that bottle of water. Let's not get carried away too rapidly with our consumption choices. 

It is a zero-sum game. For every bottle of island water I drink, there is a bottle of Italian water foregone. For every drink I get from the spigot in my house, that is a bottle of each foregone. Every this I buy is a that I forego. Every minute I spend writing this blog is a minute I do not have for something productive. Perhaps the most humorous irony of American public education is how infrequent financial and economic education is not required. In the end, much of what people need to examine in life is basic economics.

Just so that Statler and Waldorf don't write me again to ask what this has to do with workers' compensation, many of those employees are covered by workers' compensation. The cost of every element of that production and delivery chain is impacted. And, a great many who read this blog are delivering value in the workers' compensation market, they make it a career. They travel to meetings and consume products there, like bottled water. Any of them might make a difference in their world. 

What does it take to move from place to place? An internet calculator informed me that my recent trip contributed "0.496" tons of carbon to the atmosphere. Whether that was imperial or metric, I am not certain. And, I cannot confirm the math (as Mrs. Worthy used to tell us to, but you cannot "show your work" with internet calculators). 

There are those who would make a very sound argument that the "cost" of in-person gatherings in this regard is not justified by the marginal benefit (not to suggest it is minimal or de minimus, but that it is "in addition to") of physical presence. But this post is about water. Nonetheless, I generated carbon getting to the water. 

A fluid ounce is a measure of volume, not weight. But, the weight in ounces is more (1.0432) than the fluid ounces. Thus, it is fair to say that an eleven-ounce bottle of water weighs more than eleven ounces. That is further supported by the fact that the volume of a bottle makes no account of the weight of the bottle. Did I mention that one of the brands of water was in glass bottles? Those likely weigh more than the plastic ones. Whether one or the other is better in our local landfill is a topic for another day. 

For simplicity, the study is then on what it takes to move eleven ounces of water to that recent meeting. I will hear from some who will decry the simplicity. They will want to parse that the fuel consumption from sea travel is different than train, truck, etc. Undoubtedly, that is all true and a finer point could be placed on this analysis by mathematicians far superior to me.

One calculator estimates that to ship one kilogram from that Pacific island to my recent destination would create .25 kilograms of carbon. From Italy, it estimates .15 kilograms. A kilogram is .45 pounds. There are 16 ounces in a pound. So a kilo is about 7 ounces (16 x .45). Therefore the 11-ounce bottle of water will be more than this .25 kilograms. But we can say with reasonable certainty that each bottle of water I consumed at that meeting (which is a lot) unleashed about .2 kilograms of carbon. 

Without a doubt, getting me to the meeting was more carbon-intensive than getting the bottle of water there.

Some estimates place the volume of water from the Pacific island at over two million cases annually. The case (24) of either water is more than 10 pounds or about 4.5 kilograms. Two million cases would mean 9 million kilograms in a year. If it is fair to use my recent destination as an exemplar (the carbon footprint of the water is obviously less in New York (Italian) or Los Angeles (Pacific island water), then this 9 million kilograms might mean 1.35 million to 2.25 million kilograms of carbon in the atmosphere from shipping these two water brands.

That is 1,488 to 2,480 U.S. tons, or 1,329 to 2,214 Imperial tons, or 1,350 to 2,250 metric tons. In any event, it equates to a great many tons. Is there an imperative that I be in person at a meeting? That is a decision. I see benefits. I see discretion. I see making good choices. Is there an imperative that the only available beverage choice there comes with such an impact? I struggle to find a patent imperative ("of vital importance; crucial."). 

There are other complaints about such, including pollution, social consciousness, and hypocrisy. This post is not about hypocrisy. I love telling Statler and Waldorf that when they contact me. Those two are really entertaining. 

Does anyone else think about this impact of shipping? Is there any effort at your local retailers or restauranteurs for "local sourcing?" In our shrinking world, I can have blueberries year-round. Some come from down the street (spring) and some come from a continent away (winter). I can buy cheese from Wisconsin (quite a distance from Paradise) or from France (even further, but the scenery). I have not done the math, but I suspect the Wisconsin cheese presents a lower carbon release for me, but might not for you.

As the virtue signalers preach environment and enjoy their private jets, I am wondering whether they really need to be going. Some like Bill Gates and John Kerry have been criticized recently. The Hollywood elite has also been cited, along with others. I personally gave up my private jet years ago. But, regardless of our mode of transport, we need to question is this a meeting that will greatly benefit from in-person? Is it a gathering from which the attendee will greatly benefit from in-person. Those meetings exist. When it is justified and valuable, absolutely go there. While you are there, make the most of it, pull every bit of value you can from your presence. But water?

I am going to stop opening $2.00 per bottle water from across the globe. I am going to strive to find groceries that are sourced closer to home (apologies to a particular dairy in Oregon, and their highly addictive strawberry ice cream, let me just say "it's not you, it's me."). Do I realize that my consumption decision may impact workers, companies, and their existence? Absolutely. My alternative is to exalt their jobs and livelihood and ignore the carbon that the virtue folks are so upset about.

What would you do? The fact it, this is complicated and we live on a shrinking planet. We are increasingly co-dependent and interrelated. That is true of the economies that employ us and the environment that sustains us. Anyone telling you that there are easy answers is probably missing a few of the finer points. Who is right and who is not? What will you do?