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).
