The Code in the News Again

Judicial ethics has been in the news recently. From Washington DC to Pennsylvania, to the Florida Panhandle. Each story brings thoughts and perspective. Anyone on the bench or working before the bench could validly invest in these stories.

In Washington DC, the Supreme Court of the United States (SCOTUS) adopted a code of ethics. Criticism came from various quarters. Business Insurance noted that the conflict of interest section, while similar to other Codes of Judicial Conduct, suggests rather than mandates disqualification for the Supreme Court.

The article criticizes that "most federal judges" are instructed that they "shall" recuse themselves. To the contrary, the SCOTUS standard is instead that "they 'should' recuse themselves." Thus, in the new code perhaps one might see forward progress (a glass half full) and critics might instead see an incomplete effort (a glass half empty).

There will be those who ask whether there is a distinction between the roles of judges, trial and appellate. Are some more amenable to personal sympathy or solace? If the "shall" is appropriate for some, is there a reason it is not appropriate for all? Or, in the inverse, if "should" is the appropriate standard, "should" that apply to all?

I have heard lawyers quietly lament a perception that federal judges seem to some to be disinclined to recusal or disqualification. It is not a topic upon which I can speak from any experience. A quick look at the availability of appellate review of a denial of disqualification finds many denials of petitions for writ of prohibition. One conclusion is that "Writs of mandamus and prohibition are drastic remedies and should be used only in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Thus, it is possible that discretion is broad under the "should" standard. 

Perhaps there will be further discussion of the new SCOTUS code, and whether there is a real distinction between "should" and "shall" in the realm of conflicts real or perceived.

Just down the road, a Pennsylvania judge has been suspended without pay. The situation illustrates a variety of the Code's canons. Some should be of particular interest to all judges. The investigative board there concluded that the judge "allowed her employees to take additional vacation days, contrary to what was reported in a previous investigation." This, according to CBS 21.

    See Model ABA Code, Canon 1, 2.

CANON 1
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

CANON 2
A judge shall perform the duties of judicial office impartially, competently, and diligently.

Further, when the judge was named as a defendant in a lawsuit, the judge allegedly instructed her employee to ignore it and to misrepresent that it was never received. The Board alleges that in another instance, the judge called local police to obtain documents related to a case against her, as a "favor."

    See Model ABA Code, CANON 1,

There is an allegation that the judge presided over a case involving an attorney that represented the judge in that case. The story says the judge admitted to this. The Judge "filed a Citizen's Complaint" against police officers "involved in her arrest." She asserted that they "conspired to destroy her character and credibility." Despite this, the judge continued to preside over a case involving one of those officers.

    See Model ABA Code, CANON 1, CANON 2, Canon 3.

CANON 3
A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

The Judge had a personal Facebook page, and there is likely nothing per se wrong with that. But, her boyfriend was selling "X-It Red," and the Judge allegedly took to her Facebook page, in judicial robes, and endorsed the product.

    See Model ABA Code, CANON 1, CANON 3.

Finally, the judge allegdly "failed to show up" for work during a scheduled duty. In addition to not being present, she was allegedly "completely out of reach," for at least two days of that duty.

    See Model ABA Code, CANON 2.

This was apparently not Judge McKnight's first involvement with the judiciary discipline system, according to PennLive. Mistakes are human. Learning from them, growing, and improving are fine reactions to our mistakes and missteps. 

Meanwhile, in the Florida panhandle, a panel of the Judicial Qualifications Commission (JQC) has recommended that a Liberty County judge be disciplined. The allegations center on an ex parte communication between the judge and an assistant state attorney (prosecutor).

I remind judges all the time to avoid "off-the-record" conversations with parties in cases. A judge once said to me "I don't know why you say that so often." My response was simple "If judges would quit doing it, I would quit reminding them of it." It is rarely a good idea to have off-the-record conversations with litigants and/or attorneys. You heard that here. It is never a good idea to have an off-the-record conversation with any single party, that is ex parte. It is forbidden and inappropriate. 

WFSU reports that the judge allegedly asked a lawyer to remain as a Zoom hearing was concluding. The judge then allegedly counseled the prosecutor on how the judge thought the case should be prosecuted. The judge allegedly expressed "displeasure" with some prosecutorial decisions, and counseled with "investigative advice" on how the case might be handled. A judge's role is not advocate or inquisitor. See It is What it is (November 2023). See also What is Ex Parte (January 2018). 

The JQC concluded that the judge's comments "clearly evinc(ed) a bias in favor of law enforcement.” The judge has "acknowledged his conduct was inappropriate" and violated the Code. The JQC recommended discipline that may include reprimand, suspension, and a period of not presiding over criminal matters. 

Whose job is it to decide how to pursue a case? It is the lawyers and litigants. Their choices may be unwise, ill-advised, or worse. That is on them. They have every right to make their own decisions, plot their own strategy, and pursue their own plans. 

In that regard, I persistently hear of judges cautioning pro se parties about their skills and challenges. I have witnessed, years ago, judges telling such parties that they must consult an attorney (as regards pro se settlement). I witnessed one handing a pro se worker a particular lawyer's business card in the hearing room. I have heard from workers that some judge's editorializing on their abilities and perceived need for counsel was untoward, hurtful, or even displayed judicial bias. It is a fine line between assuring that parties know of their right to counsel and stepping into the potential for perceptions of bias and prejudice.

Recently, in It Is What It Is (November 2023), I noted 

1. Judges are not advocates.
2. Judges are not inquisitors.
3. The judge's job (is) to ensure a fair proceeding.
4. The judge's job (is) to resolve conflicts in process, evidence, and the law.
5. The judge's job (is) to make decisions.
6. (Judges) are not advocates.
7. Judges are never advocates.

I received pushback on some of that. It is fair to say that there is no unanimity among judges on how close to the "advocate" line to dance. In the end, unfortunately, it is perhaps much clearer in retrospect. But, retrospect is a difficult way to view things when someone perceives that the damage is done. Once the topic of bias or favoritism is raised in a motion for rehearing or for disqualification, you might expect that motion to be shared among lawyers. In the end, their allegations and feelings may become public and perhaps pernicious. If that is not uncomfortable, even in retrospect, that is at best curious. A judge "shall avoid impropriety and the appearance of impropriety." CANON 1 (Emphasis added). 

Should the SCOTUS have a more stringent set of ethics guidelines? What should be done with judges who violate the constraints of the Code? Is there value in studying these instances, in introspection, in contemplation?

Breaking Down Hearsay

I once posted using Simone, a tertiary but crucial character in the 1986 classic Ferris Beuler's Day Off. See Perceptions about Adjudication (February 2016). Yes, Virginia, this blog has been around a long, long time.

This is a great way to teach people about the challenges of hearsay, which was the main theme for the 2016 post. Simone, sincere as the day is long, explains Ferris' absence with:

"my best friend's sister's boyfriend's brother's girlfriend heard from this guy who knows this kid who's going out with the girl who saw Ferris pass out at 31 Flavors last night. I guess it's pretty serious."

As one might note in our current vernacular, OMG, ROFLOL, or TMI.

I found myself thinking of Simone recently as I read a story on the British Broadcasting Corporation page regarding a fellow who made some comments regarding the COVID pandemic, or who perhaps did not. He is caught up in some kind of a government investigation over in Great Britain, a beautiful country with some quaint and scenic attractions that everyone should experience once.

The headline on this piece is catchy, it claims this government official (now Prime Minister) at some point uttered the phrase "just let people die" (that quote is in the headline). Ouch. Um, o.k., just ouch. Can you imagine? Well, that certainly led to reading the story.

The allegation regarding this comment comes from Patrick. Patrick made a note in his diary in October 2020. So Patrick's diary note quoted Dominic. Domonic allegedly said to Patrick that "Rishi thinks just let people die . . . .."

There is some unpacking to do here.

First, note that this discussion is about hearsay, and the above example is used as a teaching tool. The story is about Britain, about a government inquiry, and this post in no way suggests that their process or outcome is governed or influenced by American or Florida law. Having said that, I will undoubtedly still hear from Stadtler and Waldorf. I love those guys.

What is hearsay? Section 90.801, Fla. Stat. says

“'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

So, the purpose of evidence ("to prove the truth"), is critical. The nature of the evidence ("other than . . . at the trial or hearing") is critical. There are a raft of exceptions to the hearsay rule. So many lawyers hear "objection hearsay" and jump to quote exceptions to the judge. STOP! Step one, is it hearsay? Is it submitted for the truth?

In the Great Britain example, does it matter whether the alleged comment is or is not true? Is someone trying to prove that we should "let people die?" Or, is the point about the impact on the listener? If the truth of that statement is not at issue, then the statement is not hearsay. The exceptions are not necessary.

Back to Simone. The statement "just let people die" is in the headline, but not in the body of the story. The story instead says that a diary note written by Patrick says that Domonic says that (he believes) someone else (Rishi) has thoughts on death. See, there is no expression reported there by Domonic that Rishi said that.

Thus, even if the diary were admitted into evidence (clearly written outside of the hearing) to prove the truth of the matter asserted (that Rishi said something), it might not support that conclusion. At best, it seems the writing might support that Domonic said (hearsay) what he thought someone else thought. I think you are a big Dallas Cowboy's fan. I have sent an email to that effect to Patrick in hopes he will put it in his diary. You live with the consequences. Sorry.

This is a tangled web that lawyers and judges face persistently. Is the diary note hearsay? Depends on what you are trying to prove. If the issue is whether Patrick was alive on that date, then the existence of the diary entry may be relevant, regardless of its truth. Whether it says something about what Domonic said or something about seeing a rabbit in the garden, the existence of the entry might prove Patrick was alive.

But, if the diary entry is evidence of what Rishi said, then there may be a serious hearsay problem.

And, because that note is a product of what Domonic said, then we must discern if what Domonic said is hearsay. Why is it introduced? If to prove Rishi said this particular something, then likely hearsay. But, if to prove Domonic and Patrick spoke on that day, then likely not hearsay.

And, if what Domonic said is based on what Rishi said (an out-of-court statement), is Rishi's comment hearsay? That depends similarly on the purpose. If to prove a material fact (callousness, disinterest, etc.) then perhaps hearsay. Perhaps you say? Well, with the information provided, there is no allegation of what Rishi "said." So, the statement of Rishi (at least as reported by BBC) is not a statement. Thus, there is no hearsay issue with Rishi, but it begins with Domonic's recitation of his perceptions and feelings about what Rishi thinks.

See, that whole analysis leads us to section 90.805 where we learn about "hearsay within hearsay." The statute says that "each part of the combined statements" must "conform with an exception to the hearsay rule." Thus in a compound Partick, Domonic, Rishi analysis, each statement must be considered from the standpoint of "is it hearsay," and if yes, then "what exception could apply?"

Evidence, you see, can be challenging and intriguing. Those who do not practice law will struggle with the intricacy. Don't feel too bad, I have seen many who practice law struggle with it just the same.

The process becomes simpler if you break it down 

1. What is the point (truth or other)?
2. If truth, does the statement meet the prohibition (out of court)?
3. Is there an exception that is applicable?
4. Is the statement singular, or compound (Patrick, Domonic, Rishi)?
5. If compound, is there an out ("not hearsay" or a specific exception) for each element or step?

Take it one step at a time. Like much in life that is complicated, breaking it into smaller bites may make digestion easier, or the bites easier for the judge to swallow. 

They are not Real!?!

There is breaking news about artificial intelligence (AI) and computers taking jobs. This may be a bit difficult for some to stomach, but Business Insider says it is a true story. A story-book story of a girl writ large. She is an out-of-nowhere unknown making a splash on social media. She is way younger than I am, earns six figures, and has way more followers on Instagram (she is, literally, "Internet famous"). Of course, Leah Kate assures us that "No one (is really impressed) if you're internet famous," but really?

Aitana Lopez is everything everyone wants to be. She is hip, happening, successful, popular. For those of you that have been popular, well good for you. For the other 98% of us, it is perhaps hard to imagine how someone can be so vibrant, young, and happening. She claims to be 25, but was born a few months ago. The good news is that Aitana is not real. No, literally, she is made up. She was generated by AI just as sure as so many others were created by Hollywood, Instagram, and home video. In a word, Aitana is an image.

AI was engaged by "a Spanish agency that grew tired of booking real models." That sounds like a dig on models. Some of the comments from the agency are telling. The founder says the agency had challenges with models. There were conflicts with the "influencer(s) or model(s)" and "many projects were being put on hold or canceled. People, you see, can have a variety of commitments, personalities, distractions, and temperments. They are, after all, "only human."

The agency figured out it "could make a better living and not be dependent on other people." Those people, it complained, "who have egos, who have manias, or who just want to make a lot of money by posing." Imagine people just wanting the money. See Hip to Be Square (August 2023). Yeah, that posing sounds pretty easy. Ever wonder why we are not all getting rich from the process (hint, no one wants to look at a picture of me).

So, the AI created the photos of Aitana. These included some that were perhaps risque, but that is not entirely clear. Apparently, some of them were posted on something called "Fanvue," which the story says is similar to the "only fans" that has caused some issues with people's day jobs in places like Missouri, Australia, and Canada.

Even on the more ubiquitous Instagram, some of the "story" lines are apparently geared toward the consumer. Aitana goes to trendy places, drinks trendy cocktails, and engages in trendy activities like "going to the gym." She is essentially "based on what society likes most." That is easy to achieve in the world of fiction and make-believe. But what is real is that she is generating about $11,000 per month for the agency that created her.

This may come as a shock. Or, it may be deja-vu. See, a major strike just concluded in Hollywood. It centered, in part, on studios using Artificial Intelligence to enhance, replicate, and leverage the talent of actors. Some feel that the AI threat to the acting profession is "existential." If they film a star, per the recent contract, they will have to be upfront on how they use that footage thereafter. The talent pictured in that article notes that "AI is not art." Aitana might disagree.

In that recent actor contract, according to the Los Angeles Times, studios will now have to "obtain permission from actors in order to create a 'digital replica' of them." And, the "performer" must then be "compensate(d) . . . appropriately whenever it’s used." Some see this as a huge contract concession by the studios. Others note that "companies could refuse to hire performers who won’t consent to digital replication." (Like they have refused for years to hire actors who wanted more money than the producers would pay). Well, as John Mayer noted, "Welcome to the real world" (No such thing, 1999).

Before you feel too sorry for those actors, know that this is a fact of life for millions, perhaps billions, of workers around the world. Employers of all shapes and sizes express conditions to the contract of employment. They do not hire people who smoke, who are overweight, who like to go to protests, who say things about them on social media, and more. What if you won't agree to work the night shift? Holidays? Oh, there are buckets of things one might be forced to give up for a particular job in America. And workers in this country are far more protected than those in many venues.

An actor union representative, speaking on the acting AI dispute and the new contract contends that “Consent at the time of employment isn’t consent.” He stresses that conditions on employment are instead "coercion." He claims that actors will have to consent, or they will not work. To work, he predicts "you’ve got to give them the right to replicate you.” Oh, Brave New World (Aldous Huxley, 1931). Sort of like those who have to give up smoking, wear particular uniforms, work weekends, and a slew of other workplace conditions.

It is important, as regards the Hollywood contract, to remember we are not talking about the big names (Tom Cruise $100 million in 2022; Wil Smith $35 million, Leonardo DeCaprio and Brad Pitt $30 million). It may be hard for us to identify with millionaires. The average pay for an "extra actor" in Hollywood is about $22.00 per hour. These are working folks, not millionaires from Malibu. But nonetheless, they seem to think that AI is specific to them, employment conditions are specific to them, and challenges are specific to them. They are likely mistaken.

Well, Aitana may or may not be art, but with 124,000 Instagram followers, and a $132,000 annual income, the AI is successful, popular, and some might argue just as "real" as the various people in Hollywood with their contrived stories, consultant-created images, trainers, therapists, and airbrushed photos. 

Is Aitana really news? Are models really that hard to get along with? I don't know any well, so I am at a loss here. Employees? Those can be a challenge. See, the thing all employees have in common is that they are human. They are imperfect, fallible, and prone to error and mistake (this includes me). 

Humans easily fall prey to such complications as missed buses and malfunctioning autos. Humans persistently strive to interact with each other, converse, and even daydream. Some get distracted at work by their email, texts, and Instagram stories. They are prone to become ill, require dental care, and want to care for family. Imperfect, distracted, and challenging. But, in a word, human.

See, Aitana is an advantage to her creators. She never needs a day off for a sick child. She never has a bad day. Aitana is at their beck and call with a click or two. She will wear what they want, pose as they want, and will do it with never a discouraging word, gesture, or attitude. She will be perfect, until she is not. When she is not, they will make up another one (remember _______ who used to be in all those movies and then just seemingly disappeared?).

Is it any different in any business? Is there some reason why computers might only take over the role of models and influencers? Will they leave the rest of us alone? No, Virginia, the computers are not just here to take from the pretty people.

Remember when the Chatbot was winning legal cases? Remember when self-check-out lanes were the rage? Remember in 2017 when I told you that AI and robots are coming for your jobs? See Nero May Be Fiddling (April 2017). Remember Mr. Go? Yes, you can say that AI is troubling you. You can claim tech advances are unprecedented. But no, you cannot say I didn't tell you so. I did. Repeatedly. What do you say to a guy with two black eyes? Nothing, he didn't listen the first two times. How many times must tech, or Hollywood, slap you in the face?

The Spanish agency that created Aitana, "The Clueless," is not alone. Business Insider says that these AI model creations are increasing. There will undoubtedly be virtual recording artists, movie stars, and more. They will repeat lines written by computers, and the output will be edited and finished by computers. 

Programs will design media campaigns and promotions, and hordes will follow, endorse, and consume them. They will measure how we react, what we find valuable, and what draws our eyes. They will manipulate us, entice us, guilt us, cajole us. And we will consume it. We have been following Madison Avenue for decades. If they can make The Polar Express (Warner Brothers, 2004) with Tom Hanks, trust me they can as easily make it without him. Undoubtedly, if they can make a star out of Nicholas Cage (Francis Ford Coppola's nephew) they can make a star out of Aitana. She does not need a rich, famous, and helpful family member, she has economics on her side. 

If social media has taught us nothing else, we know that people will consume it. If they will eat at a restaurant because PewDiePie did, they will eat at a restaurant because Aitana says she did. The problem is not with the herders folks. We sheep are to blame. Maybe Leah Kate has a point and "Life sux?"

Thanks for the Giving Message

The day dawns brisk. Temperatures across the country are finally getting into the range that screams fall. There are leaves falling from trees here in Paradise. Not in the colorful hues of the northeast. They are brown, crisp, and frankly an annoyance. All you leaf lovers can chide me for that. Be thankful you don't have my leaves. 

What is Thanksgiving? For some a romanticized fable of community and contribution. A few years back, the news ridiculed those who noted that there are some who dislike Thanksgiving. There were stories then from USAToday and the Washington Post and others. There was seemingly blame for the misconception. 

The Independent notes that not all Americans celebrate this holiday. They perceive it as a celebration of the conquest to the continent's then-existing inhabitants by the Europeans. Some have a "day of mourning" coincident with Thanksgiving, according to CNN. Let's agree that sentiments are not a subject of unanimous agreement. There are different perspectives on the prosperity and success that has evolved, developed, and thrived on this continent since 1492. There are feelings of oppression, criticisms, antipathy, anxiety, and anger. 

But, this is a day for reflection. There is hope in today, from a variety of perspectives. Not universally, of course. Many of our best and brightest are in harm's way today. They are standing a post, manning a watch, or sitting stand-by. They are far from home, and the company and comfort that affords. They are much closer to the challenges and difficulties that plague the world and somehow seem to draw us in.

There are carrier groups in the Mediterranean. There are troops in Syria, Iraq, Poland, Germany, and a long list of other locations. They are in the east, the west, the north, and the south. They are the outer pickets, the front line, the tip of the spear. They find themselves this Thanksgiving in the way of harm. And they do it for you.

They are not alone, nor unique. There are thousands waking up today in firehouses across the country. More still will go to work today in other uniforms in an effort to assure the health, safety, and welfare of the millions that will travel for this holiday. Many more stand ready to assure you have water, sewage service, and a long line of benefits you are as likely as I to take for granted. 

Others today will head to more mundane tasks. There will be a handful of retailers open. There are gas stations, restaurants here and there, and some pharmacists will be on duty for those in need. The country will not stop today, despite its notable slowing and our collective disassociation. Despite that, many people will be working away as you enjoy your annual repast.

Many of us will rise to lesser challenges. Will the turkey be moist? Did I put enough sage in the dressing? Are the potatoes lumpy? Has anyone seen the turkey carcass; where is the dog? There will be overeating, rambunctious youngsters, and untoward conversations on politics, religion, football, and more contentious subjects. "Is that pumpkin pie spice or cinnamon?" "She always adds too much salt."

There will be family, friends, and food. There will be ups, downs, and even tryptophan. No, you are not tired because of tryptophan. You are tired because you got up at 04:00 to worry about your perfect meal, and put that frozen bird in the oven. Then you ran in circles all morning, ate too much, and life caught up. Take a nap.

There is much to enjoy, lament, and forget in the annual Thanksgiving celebration. Too often we overlook the bottom line. Everyone has much for which to be thankful. A new day has dawned, and whether that means leaf-blowing or turkey-baking it also means promise and reflection.

Whether we are working today (at work or home), relaxing in front of an age-worn parade tradition, or watching football teams we care nothing about, we have much for which to be thankful.

Whether we have suffered recent loss, economic, personal, professional, we have much. Whether the world is aligned in the manner we would personally select, we have much. Whether the meal is perfect or flawed, the company is welcome or tedious, we have much. We best remember that. And today is a day for just that.

Whatever your proclivities, predispositions, or experiences, you have this opportunity to look at who and where you are. Today, you may be thankful and gracious. Or you may be bitter and angry. I say "bless you" either way. But if you have missed it, it is beyond likely that you have much for which to thankful.

Ponder a minute this day. Forget about the Ferrari you don't have, the ripped abs, the cash hoard, the bigger house (need I go on?). Forget about what you have missed, foregone, or forgotten. No one has it all, and in the end you have much.

Take time today to see that. Take time today to give thanks. In particular, give thanks and acknowledgment to those people in your life, in your circle, in your world. If you get a chance to thank some of those who spend their day making yours safe, secure, and happy, do it. If you do run out for some forgotten something, and find a store staffed, perhaps say a genuine "thank you?" Focus yourself this day on all that is good.

If you cannot find the good, I would suggest you are likely not being very honest with yourself. Sit a minute and look around. The streets are calm. The challenges are paused. There is commaraderie, collegiality, and community. If you cannot see it, that is disappointing. Sit a while longer and try a little harder. We all have much for which to be grateful.

I wish you a great day. Whether you spend it working, eating, travelling, arguing, or otherwise. I hope you will see through divisivness and envy, and find solace in how lucky you actually are. Just think, not everyone gets to read great material like this. I am grateful for my readers. Have a safe and happy Thanksgiving. 

It is what it is

I find myself persistently surprised by the depth and breadth of the Code of Judicial Conduct. I am confident that I have studied it as much as any judge I know. I have had spirited debates about what it says, what it means, and what it doesn’t. I had a great debate last summer with a judge regarding the distinctions between recusal and disqualification.

The persistence of the intermingling and confusing of these two terms is somewhat frustrating. The distinction between them is clear, and I have written on the topic many times. The simplicity is that recusal is a voluntary, judge-initiated action of removal. Thus, there is never a basis for any "motion for recusal." That very phrase is oxymoronic and untenable. When a change of judge is sought by a party, then it is disqualification.

A judge would not "voluntarily disqualify" any more than a party would "move to recuse." The subtlety of the word use is not complex. Those who misuse either are frankly as troubling as those who mistake their, there, and they're. If anything, perhaps mistakes like that are more excusable as they at least sound alike. Recusal and disqualification are not malapropisms.

Don’t get me wrong, I love the discussion and the disagreement. Debate is healthy and makes us all better. We learn collegially. We grow through exposure to new ideas. We benefit from different perspectives on the law generally and the Code specifically. The discussion of recusal and disqualification last summer was thus interesting and informative.

Interpretation of the code can be challenging. There are ambiguities and there are perspectives. The rules are often not bright lines, but various degrees of acceptability nestled between those two poles. There is room for discretion, critical self-analysis, and even frustration. The main challenge is that the Code is clear in the duty to serve. Canon 3 B. provides this:

"(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required."

The default is to preside. It is only for those in which "disqualification is required" that a judge is to forswear this primary responsibility. Therefore the grounds and bases for disqualification are of import. 

Some of the reasons for avoidance are quite clear, such as if the judge's spouse is a party to the proceeding, or if the judge is likely to be a witness in the proceeding. Others are more challenging, such as when "the judge's impartiality might reasonably be questioned," or "the judge has . . . personal knowledge of disputed evidentiary facts concerning the proceeding."

Neither recusal or disqualification is in any way a reflection on the judge. Some cases are not appropriate for a particular judge. So what? We merely assign a different judge. There is value in identifying such conflicts or "appearances" as early as possible. The longer a judge presides over a proceeding, the greater the potential for prejudice to either party from a recusal or disqualification. There can be frustration and expense from starting over. That said, we see such decisions made years after a case (and the grounds) exist. That is curious. 

Despite the many grey areas, there are instances in which it is the judge who creates such a need for disqualification. There are actions and behaviors that are at once riskier to the process and very simple to avoid. There is potential for those to be innocent miscues, but, Huey Lewis pointed out in my youth, “Sometimes, sometimes bad is bad.” And in that vein, there are a few interpretations of the Code that are reasonably clear.

Judges are not advocates. Judges are not inquisitors. It is the judge's job to ensure a fair proceeding. It is the judge's job to resolve conflicts in process, evidence, and the law. It is the judge's job to make decisions. Right or wrong, we are to make decisions. When we are wrong, we are fortunate that there are appellate judges and their benefits of collective and collaborative review. They are blessed with time and contemplation opportunities that elude many (most) trial judges.

We are not advocates. Every judge has experienced that trial in which some attorney has utterly and completely missed the boat, dropped the ball, and failed the client. It is hard watching any client failed by unprepared, incompetent, or inattentive counsel. That it is hard is just a fact of life. That it is hard is not an excuse for the judge to disregard the burden of impartiality and assume the role of inquisitor or advocate. Judges are never advocates. 

There are setbacks in a trial. There are challenges. There are victories and defeats. There are trials in which the important questions are not asked, the critical evidence is not presented, and the client is prejudiced. That is perhaps unfair. The client should perhaps not, in a perfect world, suffer the injury or damage inflicted by incompetent or inattentive counsel. But, each party chose her/his/its counsel. This is the attorney that the party wanted. The client receives the attorney's benefit and burden, strength and weakness, success and failure. Fair? Not always.

It is perhaps impossible to not be troubled by the glaring failures. Trial is an expensive, arduous, and complicated end to a long process. I have tried many cases in my career, and presided over many, many more. I have witnessed the clash of titans. I have lost sleep over difficult decisions. I have silently commiserated with the disappointed and disenchanted. I have persistently remained impartial and objective. And I have seen various parties utterly failed by counsel, by lack of preparation, by lack of comprehension.

That is the nature of trial. There are opportunities to prepare. There are careful, precise, and persistent assemblies of evidence. There are days when the plan is executed just as expected. That is a great feeling for a litigator. There are moments of inspiration and opportunity. The prepared mind catches those, seizes the moment, and that feels even better. The great litigators are amazing, and watching them can be enthralling.

But there will be times when the lawyer does not prepare. There will be times that the plan does not come to fruit. There can be disappointments, misfires, and shortfalls. Those can be troubling and undermining. They can raise the litigator's blood pressure, challenge her/his patience, and frustrate the litigator's desired, anticipated, and expected progress. Those moments can hurt. Every litigator has been there. 

However, none of this ever means it is the judge’s role to pick up the pieces, ask the critical questions, identify the critical evidence, and try a party’s case. The judge’s job is to be an impartial arbiter of the law. Period. That evidence is missing is not a void for the judge to fill. It is not for the judge to take sides, repair voids, or devolve to advocacy. While the Code may have its ambiguities and uncertainties, there is no room for advocate judges. The moment a judge begins to advocate, the impartiality is doomed. 

That is why judges should not go searching for facts or evidence on the internet or in books. That is why judges really should not be doing legal research to fill the voids of any party’s preparation. Fair warning, the Florida District Court has disagreed with me on that point. That doesn’t mean the court is right, only that it is last. It is not the judge's role to do the litigant's job.

The responsibility for framing the issues, obtaining and presenting the evidence, researching and arguing the law, that is all on the parties. That is their job. When they excel at it, they may prevail. When they excel at it, they may nonetheless not prevail as their opponent has better evidence, facts, law, or skills. It is possible to do everything perfectly as a litigator and still not prevail. That is the nature of trial.  

The wise Jenna Raine intones with great effect what we must remember:

"It is what it is, what it is, what it is, what it is

It is what it is, what it is, what it is, what it is"

She expounds:

"Hey! Lemons make lеmonade, Flowers bloom in the rain, Growing up is a pain, And it is what it is"

Yes, it is what it is. The parties do their best to try their case. I did not say that they do "the best," but "their best." They may excel or not. They may prevail or not. But that "is what it is." Maybe it is unfortunate that someone must prevail in any trial. The corollary is that someone will not prevail. There will be gain and loss. Some days will be better than others. But on no day is it the judge's job to fill in the gaps, ask the unasked, research the foregone, or abdicate the role of impartial arbiter. 

The role of advocate is necessary. The burdens associated with it are unavoidable. The stress is real and sometimes palpable. "And it is what it is." It is for lawyers and parties. Judges should stay in their role, remain impartial, forego asking questions, foreswear advocacy, and always remain true to deciding the case on the evidence in the record. If there are gaps to fill in, or questions unasked, leave that to others and their mastery of the great and vast expanse of Wikinonsense (copyright, 2023). 

Impartiality, decisiveness, thoroughness, and timeliness. All are worthy for judges. Advocacy, evidence gathering, internet surfing, Wikinonsense. None of those is appropriate. And as Ms. Raine says

"Just remember the words, And it goes like this

It is what it is, what it is, what it is, what it is"

The F Word in Comp

We are in a world that is transitioning around us. It is evolutionary at least and at moments "revolutionary" is more accurate and descriptive. There has been so much discussion recently about artificial intelligence. AI is not news to me. I have been writing about it since 2016, see Intelligence? (November 2022) for links to older material. It has come up again more recently. See AI and the Latest (June 2023) and You're Only Human (May 2023). Are the challenges really bigger today? new today?

I was recently in a conversation (peripherally) in which several really bright people were expounding on the technology wave that they perceive. They see the potential for change coming in the practice of medicine and in that both promise and threat. They are impressively aware, analytical, and insightful. It was a great opportunity to listen. We should all look for opportunities to listen to smart people.  

Then the "f" word came up. And that was a favorite it seemed. Not in the Taylor Swift, Olivia Rodrigo, Lana Del Rey context (different "f" word). This post is not about the first one, from Gayle, Demi Lavato, and others. I know I will never sing the alphabet again the same way again. A, B, C, D, . . . . Gayle gets so confused about the letter's order. But like that other one, this "f" word is being heard more often in polite conversation, and some of that is directed at computer programmers and artificial intelligence. Why is that word so frequent in today's music?

The second one, less obvious or pernicious perhaps, is "f"raud. We do hear the word a fair amount in litigation. It is heard far more often in terms of injured workers and their complaints. There has been a trend perceived over the last twenty years. Whether true or not, people express perception that the "f"raud word is plead increasingly often. But there is no "f"raud defense in Florida, See Misrepresentation Defense (February 2017). 

But the good folks at Public Broadcasting (some still find them credible despite dubious representations such as "in the 1970s, benefits to injured workers sunk so low . . .") say that "only 1-2% of workers' compensation claims are fraudulent." That said, they cite estimates of the cost of fraud to be $1.2 billion to $5 billion. Remember Dirkson (or the reported that quoted him), "A billion here, a billion there, pretty soon you are talking about real money."

The PBS team notes that there is evidence of fraud on the side of employers. They note a thirty-year-old Florida "compliance audit" that demonstrated employers not fulfilling their obligation to have workers' compensation coverage. There was also discussion there of "cheat(ing) the system" through failing to accurately report payroll or through "falsely representing employees as independent contractors." Misclassification is nothing new.  And, there is evidence that "f"raud exists on both sides of the employee/employer relationship. 

So, this "f" word is nothing new. There are some who take advantage of the world of workers' compensation. Some pharmacy operators were just convicted in a $145 million case. Reuters says it occurs in various medical settings, including rendering of unnecessary care and billing for care not provided. But why are these smart folks discussing it now? 

In artificial intelligence, there may be opportunities to leverage technology. The delivered work product may not be a human work product. It may not be as thorough or personalized as one might expect or anticipate. It may be computer-generated and technology-leveraged. Those seem like detriments. 

In the hands of a well-experienced expert physician, with the background to see error or misconception, it is perhaps a ready and valid tool. In the hands of a less experienced newcomer standing on the shoulders of many predecessors, the computer-generated output may be too easily trusted, and too readily endorsed. That worries some of the smart folks. 

But that is not the "f" word. The conversation above about AI evolved to the current technology, the programming. One physician explained to me that technology in the examination room has diminished efficiency. The doctor spends significant time typing and documenting. 

There are boxes to check and alternatives to select. There is, it seems, a great deal of data being accumulated. This doctor denies seeing how that compilation of data is benefiting patients. Some of it may be AI, in that some boxes must be checked for certain patients, and not for others. The computer program, at least, is perceived as fluid in its requirements. 

Then the conversation explored that data entry process. The goal seems to be reducing information to data that can be harvested, analyzed, categorized, and processed. Thus, there are "yes" and "no" questions that some say lack any opportunity for other responses like "maybe," or "as yet unknown." They express a feeling of being pushed to a conclusion even if that is presently at best conjecture or guessing. 

The physician laments that to be credited for their work with a patient, some data entry systems simply insist on a "yes" or "no" to these questions. Despite being unsure, the doctor clicks the best answer for today and creates a digital trail that may work well in the goal of simplified data analysis ("three out of five doctors recommended sugar-free gum"), but perhaps not so much in quality patient care, this patient. 

Then, they described that some of the system limitations are more troubling. These ask the doctor to select entries from a drop-down menu. This doctor complained that none of the entries may be wholly appropriate, but the system will not allow a free-hand answer or a deferral of the question. Thus, the doctor is making a representation that is seemingly less-than-true. 

She/he is doing so because the patient's care cannot proceed until the computer is satisfied. (make no mistake, I am not a critic, "I, for one, welcome our new robot overlords"). Despite the potential impact on care (the first reason anyone goes to the doctor is quality care. No one ever picked or recommended a doctor on penmanship or "most boxes checked on form").

The general sentiment seems to lament that doctors are saying they did things (testing, procedure, extent of exam) that are not true. Well not in the strictest sense. Once we start equivocating on what this "true enough," we have issues. The doctor picks the "drop-down" choice that is closest. The result is that "Neurological evaluation" may be selected, but the services rendered do not match that category. As an employee of the medical facility, the doctor may or may not be able to fill in a blank and explain. 

Well, that computer is going to bill someone for a "neurological evaluation" (work not actually done, see Reuters above). You can decide if that is "f"raud. But what of the patient? That patient may have a work accident in two, ten, or twenty years. When asked during a deposition "Have you ever had previous nerve complaints," the worker may validly deny. The worker may have no idea of such complaints, in her or his vernacular. 

Yet, that patient might be foisted upon that old medical record that shows "neurological evaluation." That may lead to an accusation of "f"raud. The chances likely increase if a several-week or month course of care back then was founded on repeated iterations of "neurological evaluation" that became a system default for the patient after that first compromise use of that drop-down.

However, the patient did not make neurological complaints. The doctor did not test or treat neurological complaints. The doctor picked the best "drop-down" available in a computer system that insisted on all blanks being filled. The physician did her/his best in an imperfect world. The patient did her/his best in accurately describing the past care. The workers' compensation attorney files an allegation of "f"raud or the equally effective "m"isrepresentation. 

The programming may be focused on gathering good statistics. But, if the selections are inaccurate, what is the output? What if that one doctor laments the system in a coffee break: "Yeah, that happens to me, I just choose 'neurological evaluation.'" The doctor she/he tells may tell two more doctors. Pretty soon, "neurological evaluation" is the "go-to" entry used in that program to avoid delay and frustration (the system won't let you progress until an answer is provided). Might such a facility see a disturbing increase in neurological patients? A "cluster" might be epidemiological or might be convenience in the new order.

Another doctor said that the impact of technology has been a diminished capacity for seeing patients. The time spent typing, clicking, and checking is perceived as taking away from the patient. That is true before the system gets insistent on some missed check-box, blank, or drop-down. One doctor said that it is typical to be "charting" on the weekend to catch up with all the digital input that is required. The overall sentiment was seemingly technology is a detriment to care. This may be in volume of care or quality. 

Seriously, what do I want my doctor to focus on when I present? Hint, it is not statistics, penmanship, or box-checking. It is really not even computers. I would like care and treatment. Give me attention, bedside manner, and relief. Aye, there's the point. 

And none of that addresses the "f" word. Are physicians being pigeonholed into making misrepresentations? Is the confinement of what notes the systems allow combining with the ability of such programs to compel an answer resulting in undeniable and yet unavoidable misrepresentation? Will that change care? Perhaps not for this patient and doctor, but what will happen when the AI is tasked with examination of this data set for future care? Will AI be impacted by the potential for "garbage in, garbage out?"

Are such questions being asked by anyone out there? Does anyone care? There is a physician shortage. It is worsening. The Boomers are aging, and physicians are in demand. Is their time devoted to patients or our computer overlords? Is the result of this data demand better care or future challenges? There is much to unpack and consider. 

CAFE in the News.

I’m periodically reminded of the old fairytale regarding the emperor's new clothes. In a collective, absurd application of groupthink, a huge portion of people take what they’re fed, and believe merely to believe.

A recent Reuters news article outlined how the government may change its math in order to manipulate policy and market performance regarding cars. It is reminiscent of the solution proposed for the obesity crisis: simply redefine “obesity.“ See What's in a Name (August 2020). If you find yourself with too many people overweight, "Don’t raise the bridge lower the river." That said, if there are flaws then perhaps they should be corrected. See The BMI Conundrum (August 2022). That would be for the scientific flaws, not for the groupthink. 

Similarly, the government is considering a new calculation for the "fuel economy equivalent" for electric vehicles. In the way back, 1975, the federal government imposed CAFE standards on vehicle manufacturers' fleets. This essentially means that the average fuel economy for all of the cars manufactured by XYZ car company is averaged to determine what the fleet performance is. The bureaucrats pick a number and then enforce it. Car companies shift production and pricing of the overall fleet to both meet the central committee's mandate and make a profit. 

And the various manufacturers strive to have positive numbers in the CAFE category, to avoid the imposition of government penalties. Whether you knew it or not, the attributes and performance of your vehicle have been dictated by market forces, but also by government, information, and interference. Their involvement is worthy of any good socialist state, though not communism as the U.S. government would never own the means of production. Marie Antoinette might’ve been proud. But, this, perhaps begs the question, is math math, or is math politics?

The government admits openly that the CAFE standards, at least in part, are designed with "Incentives for electric vehicles," as well as natural gas, hybrids, and more. With its purportedly superior viewpoint and perspective, the government decides what it thinks is best for the citizens. Remember the citizens granted government its authority. That government then it manipulates the market to achieve what it deems best for us. 

Notably, there are various economic forms in the world. According to Investopedia:

"A command economy is one where production and employment is largely dictated by a central authority, such as a national government."

Often associated with communist regimes, a command economy focuses on macroeconomic objectives while individual economic freedom is often limited. That sounds familiar. 

Socialism is a near cousin, without the government ownership of communism. Britannica says socialism is:

"social and economic doctrine that calls for public rather than private ownership or control of property and natural resources"

Production may not be directed by the U.S. government, but with fines imposed on producers, perhaps the path to such direction is laid. Through regulation, we are encouraged to purchase this rather than that. There is freedom, but at a price, and according to government rules. If you buy a sedan that does not meet CAFE standards, there is a special tax. That tax does not apply to minivans, trucks, and more. Corvette - tax, minivan with same MPG estimate - no tax. Government encouragement to buy this, not that. 

So, if the Reuters article is accurate, why would the government change its math at this stage? The government came up with a "petroleum-equivalent fuel economy rating for electric and plug-in electric hybrids." This is a method of determining fuel efficiency for vehicles that either do not consume fuel (pure fiction, at best they consume energy created elsewhere than the vehicle), or combine their use of fuel with energy produced elsewhere (not in the vehicle), but also likely produced with some fuel, whether directly or not.

The U.S. Department of Energy says:

"Encouraging adoption of EVs can reduce petroleum consumption but giving too much credit for that adoption can lead to increased net petroleum use because it enables lower fuel economy among conventional vehicles, which represent by far the majority of vehicles sold."

That says. essentially, that if the formula for EVs lowers a fleet average too much, then the car company can build more big vehicles with lower MPG and still remain in the CAFE sweet zone. That says it is not the accuracy of the EV formula (reality) that matters, it is the effect of the central control on overall consumption that matters. This shift lays bare any contention that there is science to the process, specifically to the EV formula. The only point is the social engineering, the socialism, and the control or influence of the marketplace. 

If the ultimate goal, as expressed in this article, is to increase the percentage of electric vehicles, on the road, why not simply count each electric vehicle as two cars (or three). Don't like that math, then count each one as three-fifths of a car. The math can either way. That of course seems absurd. But, is that any more absurd than adjusting the math that is used for this equivalency? The process is not a forward calculation that assesses the contribution and value of components and yields a result. The government's process appears instead to be a result that is dictated, and then a backward progression through the math to yield what the value assigned to inputs should be. 

And, in the end, every vehicle consumes energy. You can convert gasoline to energy in your car. You can fill your car with electricity (largely generated by converting gas or coal to energy and transmitted to you over a wire). Certainly, some electricity is "green." About 20% of it according to your government. Can we count on their math there, or is it creative as well? Once math becomes creative in one instance, can we count on the math in any instance?

And as much as some Americans are eager to “follow the science," will they be forgiving of this numerical manipulation? If the use of an electric or hybrid car renders a particular mileage equivalence, then each vehicle's performance can be rated using that formula and the result is what it is. Math is math: 2 + 2 = 4. The result is the same every time. Change a variable in this formula and the outcome can change. But, the math remains the same.

The government says instead, we need the outcome to be 6. Well, 2  + 2 does not equal six. The fuel economy of the petroleum vehicles (the first 2) is mathematical. At least the bureaucrats are not trying to force some change to the way adding numbers and averaging works. So, the second 2 is the key. Essentially, the bureaucrats are going to regulate that second 2 is now a 4. Bingo, we got to six. How did you come up with 4? we might ask. The answer is simple. They made it up. Not with science. Not with math. It is made up of smoke, mirrors, emotions, and feelings. Made up not by scientists, but by socialists seeking to influence or control our consumption. 

It is perhaps disingenuous to suggest that the vehicle fuel efficiency comparison mathematics have changed. The Department of Energy is proposing changes in the math. According to Reuters, this is driven at least in part by evolution in the process of generating and distributing electricity. That might change the value of a variable, but should not change the math. The article notes that there has been criticism of the calculations by "environmental groups." They claim that "fuel economy ratings for EVs" is inconsistent. In fact, these groups actively petitioned the government for the proposed change.

That said, altering the calculations is manipulative, and fosters distrust. Time, and again, we see government standards that are based upon good public relations, and poor science. Another fantastic example is the food pyramid published in the 1990s and preached to young people everywhere. See Disease or Choice (March 2023). According to some, it was flawed from the start. Just as flawed as the "Basic Seven" that was proposed in the 1940s. Right or wrong, it was the government, and lobbyists, telling people how to eat.

Yes, the government has been telling us how to eat for almost 100 years. And obesity is off the charts and growing. 

The government has been directing the automobile market for decades, and effectively driving the supply of vehicles. Why do consumers purchase trucks? In some part, it has been because the CAFE standards encourage the production and sale of larger vehicles, according to some. Through changes in definition, larger vehicles were excluded from CAFE for a time, and thus producers were not discouraged from building/selling them. There is a profit incentive, coupled with the absence of CAFE disincentive, and viola, bigger cars. 

At the end of the day, government has demonstrated itself largely unable to follow the science. It has followed the groupthink, followed the sentiment, and perhaps even followed the money (some suggest a suspicion that money and lobbyists influence policy occasionally). Government has regulated, legislated, and frustrated over time. The socialistic elements in government, such as CAFE and food pyramids are likely intractable and irreversible. The age of government direction and control is likely here to stay. That said, would anyone feel better if the government actually followed the science once in a while?

Science or Art

Medicine is a science. But there is art involved. I was asked recently to deliver a lecture on credibility in opinion evidence, and there is a great deal to unpack there. There is much that contributes to credibility, and much that may detract from it. See The Chair of Truth (February 2018); Credibility - a Conversation (December 2019); Magic Words (February 2021), and Credibility from Vulgarity (October 2021);

But, this presentation was about the science of medical opinions. There is an increasing tendency to strive for scientific foundation in the expression of opinions. That has been likely driven in part by Florida's adoption of the Daubert standard. Daubert's New Day (May 2019); Daubert Better Explained (May 2016). Science is about reasoning, experimentation, and reliability. Unfortunately, as similar as you and I may be, there are likely differences in the way our bodies may react to insult, injury, and illness. 

There is scientific foundation, but sometimes notable distinction in how patients present, perceive, and express. It makes the job of the physicians challenging at best. Thus, while there is science in the diagnosis and treatment of disease or dysfunction, there is art in the treatment of the patient. There will likely be both involved in the overall effort to remediate injury or illness.

In preparing for the presentation on credibility, I was driven to the idea of science and art. It occurred to me that these two could actually go together. Perhaps they would not be the best of roommates (The Odd Couple, Paramount 1968). However, might they co-exist in the world of today, the constraints of Daubert, and the "objective medical evidence" standard to which we are directed?

The question of medicine, art, and science is not new. An excellent monograph in 2006 tried to tackle the question by defining the "meaning of Art and Science in terms of Medicine." The author, S.C. Panda, strives to explain that both exist and can be "complementary." See Medicine: Science or Art?, Mens Sana Monogr. 2006 Jan-Dec; 4(1): 127–138. This is an excellent starting point for understanding the perspective of combining science and art. 

The reading reminded me of a corollary that is perhaps instructive. There was a ridiculous "troupe" of comedians that I watched in the good old days. They cooperatively produced some of the most ridiculous and hilarious material of our age - Monty Python's Flying Circus. A memorable skit in 1969 regarded the "Funniest Joke in the World," and the theme was weaponizing this joke for use in wartime. Absurd, irreverent, and yet too funny. Their perspective was driven by another time and different social mores. 

They posited that this joke was

“Wenn ist das Nunstück git und Slotermeyer? Ja! Beiherhund das Oder die Flipperwaldt gersput!“

For those who speak German, there was the added humor from the fact that some of the words are mere nonsense. As a side note, it is a bit different in that regard from the disgusting restaurant name in The Anchorman (Dreamworks 2004), which all Spanish speakers noted. However, Google Translate says this somewhat German phrase means

"When is the now piece git and slotermeyer? Yes! At hand the Oder die Flipperwaldt gersput!"

And so, we have humor that is not. Is this funny? Whether from this Python foundation or from other inspiration, another intrepid group set out to study the science of humor and to determine why it is that we laugh. We might concede at the outset that humor is in the ear of the beholder, and what I find amusing may not appeal to you at all. In that regard, perhaps not so different from our personal perceptions, descriptions, and expressions of medical complaints?

The resulting article "Telling the world’s least funny jokes: On the quantification of humor as entropy" concludes that humor may be predictable and replicable (science). The authors believe that perceptions of humor are "a quantifiable function," and that "Shannon entropy does predict human judgments of non-word humor." By that "non-word," it is presumed we mean the old slapstick slap to the head from the Stooges or Lucy stuffing chocolates into her shirt on the assembly line. Their conclusion seems to be that we have reactive similarities and we are somewhat predictable.

But, there is art in comedy. As Jack Lemmon related, someone striving to entertain us might well say "dying is easy, comedy is hard." I have told many a joke that flopped, and have gotten many a laugh from phrases I never expected to land so well. In fairness, I never rehearse. And, as importantly, as Ferris Beuller famously noted while screeching on a clarinet: I "never had one lesson" in humor. So as I may not understand the science, nor even the definition of entropy, perhaps I can have some chance in comedy periodically, sporadically, or even empirically. But, I am no scientist (or humorist).

I am suggesting, that there are others out there who consistently deliver punch lines with aplomb. Their appreciation for, and talent for, humor is unparalleled by the rest of us. It is likely that they have studied humor, practiced, repeatedly failed, and persistently continued to refine and rewrite. Their experience is part of the package, and they bring with them an expertise in humor that is worthy of consideration. That does make it labor-intensive, but not science. But, what of the science or lack of science?

Perhaps we might as readily admit that medicine is science. As different as we are individually, the systems in the body are similar and tend to reasonably consistent reactions to insult, injury, and treatment. But, due to our differences, might we expect some distinction in our reactions to treatment? Might there be room beside the science for the art of delivering care, explaining expectation, empathy, sympathy, encouragement, and more?

In the end, we could perhaps agree that neither humor nor medicine is wholly are or science. That is likely why our workers' compensation statute says that decisions have to be "based on objective relevant medical findings," but not exclusively so. There is no prohibition on the inclusion of experience, education, and training in the analyzing and quantifying of medical data and evidence. There is the foundational requirement, but no expression of exclusivity. 

With that conclusion, we return to the question of credibility above. How can a witness be credible? Particularly, how can the expert witness? The key, if there is one, is likely reduceable to a few key points:

1. Be prepared.
2. Be sincere.
3. Be concise.
4. Be clear.
5. Be consistent.
6. Be patient.
7. Be instructive.
8. Be informative.
9. Use examples.
10. Use comparisons.
11. Show your work.
12. Explain your conclusions.

In these regards, it is critical to remember that who you are speaking to is not known. The judge may decide this case, but for that to be so, the case must travel far along an expensive byway. Along the way, patients, risk managers, adjusters, and various others may weigh in on, or make, decisions regarding resolution. Any of them may be your key audience. Which of these is most critical to that decision maker? You cannot tell, because the audience is not certain at the outset. One cannot always predict who will make the decisions. 

In the end, each of those suggestions may matter, whether you are an expert witness or a fact witness. Each has the potential to make your conclusions, suggestions, and opinions more or less credible. Certainly, the science itself is of value (but only if the decision maker understands you (7 - 12). The conclusions are more likely to be accepted if the listener has faith in you (1 - 6). It is not a recipe. There is no golden rule. There are these factors to consider.

Credibility comes down, similarly to humor, to the eye of the beholder. Do you, as an expert or other witness, inspire faith, confidence, and trust? Is your conclusion logical, have you explained not just the what (your conclusion), but the how (what process led there, and why do those elements support the what). 

In the end, medicine is a mixture of science and art. The witness who would succeed is the one that accepts this, refines this, brings the data to the table and effectively presents it in a comprehensible and clear manner.  

Zen and the Art of Trial

Years ago I read Zen and the Art of Motorcycle Maintenance (Pirsig, 1974, William Morrow and Com.). In fairness, I likely only read the Cliff Notes, but that was a different era. There are some interesting philosophical themes underlying that account of a trip across the country. A couple of quotes came to mind recently as I began to wind down from the annual pilgrimage which is the OJCC annual report.

As preposterous as it may seem, that report is a big and stressful part of each year. I begin work on the product each July, and it is due December first. It should be reasonably simple to complete in that time, but it is a persistent challenge. In reality, my part has to be completed by the first of November to allow time for others to accomplish the challenges of printing, posting, and distributing. It has been a persistent challenge for me over the last 18 years.

In Zen, the author notes

“The truth knocks on the door and you say, ‘Go away, I’m looking for the truth,’ and so it goes away. Puzzling.” 

“We’re in such a hurry most of the time we never get much chance to talk. The result is a kind of endless day-to-day shallowness, a monotony that leaves a person wondering years later where all the time went and sorry that it’s gone.”

These each resonate with me this morning. I certainly wonder where the last 18 years have gone. I have been in this role for longer than any other job. Last time I counted, I had over 25 jobs listed on my CV. I have enjoyed a diverse and engaging work life over the eons. Something has kept me in workers’ compensation and the OJCC. I struggle with identifying what.

But the truth. How often do we stop and think about the truth? How prone are we to ignore what is going on, to ignore what might inform and improve? Are we able to pull our heads from the sand of day-to-day and look around us once in a while?

I had no sooner finished the 2022-23 Annual Report than I dropped down to Sarasota for an engaging dinner and conversations with the Sarasota Bradenton Claims Association. I saw some old friends and met some new ones. It is persistently refreshing to be back at in-person events. I did 10 live events in 2023, and perhaps as many virtual ones. The Sarasota event was an eye-opener in several ways.

First, I was surprised to meet people who are working to become part of workers’ compensation. That is refreshing. We need new faces, ideas, and dreams. It is heartening to find new arrivals striving for engagement and involvement. So many great conversations, a couple of new ideas, and a refreshing celebration that the statistics part of the year has closed.

There was significant discussion of the mediation and trial practice. Mediation is booming in Florida. We were first to try it, first to mandate it, and first to take it full virtual in the pandemic. Mediation, compromise, and its community are in our collective DNA. But what of trials? With each year, I perceive a diminishing volume of trials. This is not a homogeneity. Each year some judge somewhere seems busy with trials. In microanalysis trial waxes and wanes. But, overall, trials are diminishing.

Perhaps in your day-to-day, this is not apparent. Perhaps you are so busy looking for the truth that you don’t hear it knocking on the door. The decline in trials has been knocking at the door for decades. Trials were on the decline before alternative dispute resolution tools like mediation became prominent towards the end of the last century. And it is not just workers’ compensation.

But the decline is increasingly pronounced. The transparency of litigation systems and processes has enhanced data availability. The increased societal focus on metrics and measurement has enhanced our perception and appreciation. The ease of communication has facilitated dissemination and discussion. There is arguably nothing new in the fact that trials are diminishing, but these factors are somehow making the discussion more prevalent, if not new.

In 2017, Judicature (Duke University) published a deep dive into the decline of trials in a broad context. The article is Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does it Matter? With a view across federal and state, civil and criminal, the authors provide a critical analysis of the state of trials and the trends.

I like the “Not Quite Gone.” That reminds me of that cartoon of a bird eating a frog. The Frog is halfway down the throat, but its little hands (in this cartoonist’ world frogs have opposing thumbs and fingers) are grasping its assailant and striving to choke the bird out. The caption reads “never give up.” That is like "not quite gone."

There is a historical perspective on the once widespread prevalence of trials, which: “once played a central role in the American legal system.” There is criticism for the ambivalence or ignorance regarding both status and trend. The authors cite contributors including “mainstream media,” “Hollywood,” and others. There persists a Hollywood fixation on trial as if it remains a frequency. This is perhaps beyond telling the knocking truth to go away (ignoring) and trending instead toward mischaracterizing?

How many young people choose law school thinking they will suit up and head to court daily. Do they buy the Hollywood tripe, or are they wiser than that?

There are a variety of interesting statistics in the article, which is well worth a read. But, to summarize:

Civil cases in federal court resolved by trial about:

    20% in in 1938

    12% in 1962

    2% in 2002

    1%. In 2017

Boy, if you were talking about market share, lung function, and a slew of other topics, that is a precipitous decline. The conclusions are essentially that systems are “ all about plea bargain.” A study is cited for the conclusion that “by 2002, civil cases were resolved by juries in state court less than 1 percent of the time” . . . (in) criminal cases . . . 1.3 percent.” The authors note that “rates are even lower today (2017).”

Also intriguing is the authors’ explanation that all of this is complicated by the definition of the word “trial.” As the law has evolved, there has been some tendency in the courts to apply a broad definition of trial. It is noted that the current definition trend “certainly conflicts with the popular understanding of the term.” And, the broad definition is currently “a contested proceeding where evidence is introduced.” The authors say this inclusive definition “expands the number of trials exponentially because a single case can actually give rise to multiple trials.” Despite that expansive definition, trials are nonetheless plummeting.

I read that and reflected on the struggle the OJCC has had with defining “Trial.” There have been challenges. One judge used to define “trial’ as “anything that raises my blood pressure.” Others included any time a petition resolved at the comp office. I will never forget the ingrained habit of Pensacola lawyers to come to trial as scheduled but instead would enter stipulations on the record. It was an overly formal method of resolution, indistinguishable from stipulations off the record, and frankly a waste of resources. I was assured my predecessor counted those events (4-5 each week) as “trials.”

The current OJCC definition of trial is a bit more specific. It includes final merit hearings that adjudicate a petition and hearings on verified motions for fees and costs. To qualify, there must have been a hearing, and there must be a substantive order that includes both findings of fact and conclusions of law. It is a reasonably restrictive definition compared to that above. And despite that concise definition, trials seem to be decreasing. 

That definition has not come with unanimous consent. Judges argued for including hearings on continuances, stipulated motions, and other mundane and minute. I reflect on those who have advocated for definitions on the grounds their proposed definition would “make us look better.” I think of those definitions we use, and the accusations that they are “unfair” or “unflattering.” We are not here to “look better,” be “flattered,” or to mislead.

Is the purpose of the definition to be flattering? Is this like those who have recently adopted new definitions of “obesity?” See What's in a Name (August 2020). It is a lot easier to change the definition and escape its parameters than it is to lose the weight. But just because we define the word in a way that is less accurate, more appealing, that does not mean we are physically fit. It just means we are imaginative and persuasive.

The fact is, we are at a crossroads. There are fewer and fewer competent trial attorneys. The process of constructing a case, establishing the elements, and presenting it is an art. As the old and weary stride off into retirement and beyond, they are leaving behind a population that is not as practiced and experienced. The old were no better inherently, but they grew up in an era in which going to trial was regular, normal, and more frequent. They knew a time when trying two or three cases a month was not unusual. I hear from lawyers that they may get two or three a year now. The statistics above suggest that is declining.

The end of this discussion is that the world of workers’ compensation is changing. Gone are the days of the strong litigators, the arduous preparation, and the stress of trial. Now comes the day of the settlement. It is not new. It has been long popular. But its strength is still gaining, its benefits ever more apparent to its adherents. It is more appealing to the old lawyers who know how to try a case and even more so to the folks who are not so experienced. Trials, it seems, are perhaps doomed to the scrap heap of antiquity.

So why? Well, "Go away, I’m looking for the truth."