Harmless?

We must remember what we are being told persistently: "Pot is harmless." See Edibles and Illness (November 2023). If I had a nickel for every time I have been told "harmless," I would be able to buy a really nice value meal. Nonetheless, I do hear it a great deal. Everyone who tells me they use it says there are no side effects and it is really efficacious for whatever it is that ails them. Folks love pot. People seem to forget those assorted instances in which death occurs. I am not a scientist, but I have concluded that death is harmful to your health. I can accept you may feel differently and would love to hear your perspective.

California this week made the news. No, I am not talking about their $68 billion budget deficit. I am not talking about their plan to make people with money move to Florida and Texas. I am not even talking about an iconic California landmark closing its doors "due to a wave of car break-ins and robberies." California has had its share of problems. See Purpose (October 2023). No, those are interesting. I am talking here about dope, the "harmless" stuff.

There is only a modicum of research regarding pot. It has been studied here and there. However, the federal prohibition on cultivation and distribution is long-standing. That has inhibited research. While there are a great many voices today in the chorus of consensus - "harmless," there is a growing body of anecdotal evidence that suggests potentially otherwise. Consensus is not evidence. 

An accountant in California is perhaps doubting the "harmless" label. Well, he might if he were among the living. The Los Angeles Times reports that a woman was prosecuted there for his death. After pondering her actions, we might decry Brian Wilson's sentiment "wish they all could be California girls." (California Girls, Beach Boys, Summer Days, 1965). This California Girl was in a relationship for a few weeks with Accountant Chad O'Melia. He apparently smoked dope with her at his apartment. NDTV reports that Mr. O'Melia "pressed her to take another bong hit after not getting high off the first hit."

Well, if you are not getting high from one, have another. The same works for alcohol and a variety of other chemical. One of the challenges is in our bodies' somewhat individualized processing of such influences. I have known many a person who went from coherent to black-out drunk in very rapid succession. It is possible for an accumulation of consumption to catch up with you somewhat suddenly.

Well, Mr. O'Melia's houseguest took "another bong hit" and then stabbed him. Well, perhaps "stabbed him" is not a fair description. The LA Times says she stabbed him "dozens of times." NDTV says it was over 100 times. But hey, who's counting, right? As a side note, the young Floridian who stabbed the cheerleader 114 times is spending the next 40 years of his life in prison.

The California woman will spend no time in prison for taking the life of Mr. O'Melia. She will serve "two years’ probation and 100 hours of community service." What is the difference? Well, admittedly there was discussion of premeditation in the Florida example. That may be a distinction. But, the California Girl also was in California. Some believe California to be "soft on crime" in a general sense. See CBS, Newsweek, and San Diego Tribune (the reports are not hard to find).  The reader can judge whether the soft is descriptive or hyperbole. 

After this California Girl inserted the knife repeatedly into the young accountant, she "repeatedly stabbed herself," though apparently less effectively. One news outlet alleged she even went after Mr. O'Melia's dog as well. The California Girl's attorneys argued that she was "involuntarily intoxicated," and suffered "a cannabis-induced psychosis." Some define that defense as involving "involuntary ingestion," like when someone's "drink(s) a spiked drink." But in California, it is involuntary if someone urges you to consume and you do so of your own accord (in some places that "own accord" part might seem more like "voluntary"). 

The California Girl's expert might be expected to reach such a conclusion. However, the "prosecutor’s medical expert agreed with a defense expert." The prosecution expert explained, "that the behavior was the result of cannabis-induced psychosis." You see, apparently, in California if you voluntarily intoxicate yourself you are not responsible for your actions or inactions thereafter. Whether the experts are correct about the psychosis or not, the whole "voluntary" analysis is intriguing. 

If there is no responsibility for intoxicating yourself, does that mean that one cannot be responsible in California for any post-potting (or drinking) decisions? Is driving under the influence to be excused (if one is not responsible for the decision to pick up a knife, can she be responsible for the decision to start a car?). Well, perhaps only if someone told you to drink? In the end, the story is perhaps a mere flash in the headlines. But some may see it as a harbinger of things to come.

So what killed the accountant? Was it the psychosis? Was it the knife? Was it the pot? Or, was it the California Girl and her voluntary ingestion of a universally (in America) illegal substance? Perhaps the accountant's survivors will sue her for wrongful death in the spirit of Orenthal James Simpson?

Or, as dope is "harmless," according to the chorus, perhaps it is more Mr. O'Melia's fault for being in the wrong place with the wrong doper? Maybe if you encourage someone to voluntarily ingest drugs, you get what you get? Well, in any event, no one has seemingly ever self-harmed because of pot (though this California Girl did stab herself somewhat ineffectively). Harmless? It may become increasingly difficult to attribute that description. 

AI and the Singer

The world is evolving at such a rapid pace. A brilliant man once said to me "No matter how cynical I get, I can't keep up." That resonated then and frankly, it resonates at an increasing frequency and pace with each passing day.

Days ago, I recapped the exceptional webinar "The Point." Last week it was all about Artificial Intelligence. See A Fool With a Tool (January 2024). There were great quotes delivered in that interchange and much knowledge. I got some great feedback on the web, and frankly, positivity in social media can be rare and appreciated.

Then the news broke Friday of "deepfakes" and a victimized singer. The same singer was recently the butt of a joke at the Golden Globes and the world reacted, according to Deadline. At the time, I was reasonably unimpressed. The joke was clean. The singer is a public figure. The intent was not malicious. And, frankly, there were weeming overreactions and untoward recriminations. It was, in the end, a joke. And you know what they say when you can't take a joke. Part of our problem today may be our distraction by little things that correspondingly matter little.

But the deepfakes. There is suddenly a massive awareness that deepfakes are a thing. No, they are not a new thing. No, Artificial Intelligence is not responsible for deepfakes. No, social media is not responsible for deepfakes. Those are certainly tools that facilitate deepfakes. Artificial intelligence, nay computers themselves, make the creation of deepfakes easier, faster, and more convenient. But the fault is with the miscreants that run the software, on the hardware, and use the social media.

Shall we ban computers? Must we fear them because they can be misused? I am dubious of that. I am no more confident in the mantra of the pitchfork crowd that will undoubtedly suggest that somehow it is AI at fault or social media at fault.

There is a positive in the singer's story. The media is expressing outrage. National Public Radio (NPR) headlines this as "exploiting." They note this is a "scourge." They note that the Internet and social media collaborated to facilitate rapid and widespread distribution of the scourge. To their credit, they do not seemingly advocate the demise of those technologies.

Another positive aspect is the singer is a public figure and is an adult. That does not make any of the recency appropriate or excusable. It is absolutely not. But, it is somewhat tragic that it takes an attack like this on a public figure to perhaps sufficiently raise consciousness. I am suggesting that while the singer is a victim, she is a fortunate soul in several ways. That does not mean the attack is less despicable, but it has meaning. Read on.

NPR notes that "90-95% of deepfake videos are now nonconsensual pornographic videos and, of those videos, 90% target women—mostly underage." I am not sure what "mostly" means. That could mean more than half, way more than half, or even "almost all." The point of the statement, however, is that deepfakes are predominantly an affront to one particular group. This singer's victimhood publicizes and emphasizes that despicable fact.

Anyone remember AI is a Tool (October 2023)? Yes, I have been on this topic before. That post is about young people in Spain and their suffering at the hands of AI. Children are being victimized by AI? No, children are being victimized by miscreants. The world has a great many miscreants and malcontents. The Internet and AI did not create them, but it merely facilitates them.

The singer is fortunate. That is not a statement that will resonate with people. But she is a billionaire with a real (not Internet) social circle (actual, in-person, friends and family). She is an adult with some measure of experience and maturity. She is, in those regards, far better equipped to deal with the emotional onslaught that such a miscreant attack portends. There is no excusing or explaining the miscreants, but in great measure the singer is fortunate.

What of the less prepared? What of the immature? What of the youth who are utterly unprepared for the assault and damage such deepfakes might portend? Cyberbullying is a threat to adolescents, according to the National Institute of Health (NIH). The Wiki bunch asserts that many suicides are attributable to bullying (I have minimal editorial Wiki-faith, but it is worth considering). The Suicide prevention folks are convinced cyberbullying is an issue. What of the non-billionaire, immature, isolated, and more fragile members of society?

The New York Times reports that the deepfake images of the singer "swamp(ed) social media" last week. The full might of whatever efforts or protections exist in the software and personnel there were overwhelmed. Images propagated and spread. Millions viewed these deepfakes of the singer, according to the Associated Press (AP).

But, the AP also noted evidence of the singer's good fortune. You see, this singer has a fan base both broad and deep (I am not personally a huge fan, but seriously, if you are reading this and know for sure "where (she) was on April 29th," drop me a line. It has been killing me not knowing). High Infidelity, 2022. The AP notes the singer has fans who were "quick to mobilize in support."

She is blessed that literally thousands of social media users launched a counter-campaign against the deepfakes. They had no orders, but merely "rode to the sound of the guns" (source unknown). While the social media companies strove to catch up to and delete the fakes, the loyal fans flooded social media with praise and support for their idol. They posted real pictures, adopted various hashtags, and revolted against the miscreants. Fortunate. Fortuitous. Admirable.

When you are assailed and affronted, how comforting it must be to know people have your back. How much more so that there are an army with such devotion to you. Are young people today aware there is an army at their back? How often do we collectively say it or demonstrate our devotion to the next generation? Do they know we would back them and not the miscreants?

ABC News and others reported that "the White House" is "alarmed by the reports of the…circulation of images . . . of false images to be more exact, and it is alarming." The singer has brought an unprecedented profile to this trend that has even awakened the White House. Well, perhaps. A sound bite is a sound bite, but will there be action? Politicians tout the "task force" on "online harrassment." But that is almost a year old, where are its plans, results, and progress? What has the task force accomplished in the first 12 months? Where is the progress?

The responses to this latest deepfake instance with the singer might sound a bit like Louis, "I'm shocked, shocked, to find that gambling (harrassment) is going on in here." Casablanca, Warner Brothers 1942. Where is the action, the arrests, the prosecutions?

What of the less fortunate? What of the victims who are not billionaires? What of those who cannot afford good lawyers to file claims and seek redress? What of those who do not have cadres of devoted followers who can leap into action to flood the social media platforms to drown out the miscreants? What of those to afraid to speak up, confide in an adult, and accept that being bullied is never the victim's fault? This bullying is a general concern, but we must emphasize the impact on youth.

No, this singer's story is not about AI. It is not about social media. It is not about computers, software, or a host of other tools that are increasingly at people's fingertips. This story is about harassment, bullying, and the miscreants and criminals who engage in it. Today is a product of yesterday. A yesterday during which the sentimentalists and apologists in our society found great offense in the punishment of wrongdoers. The huggers and forgivers of yesterday convinced people that punishing the wrongdoer was misdirected. They were sadly mistaken.

For the last 50 years or more, there has been an ongoing tendency to hate the crime and hug the criminal. Well, the criminal is the one creating these deepfakes, not AI. The criminal is the one distributing these images, not social media. The assault on our sensibilities, youth, and selves is being afforded by miscreants who are misusing and misapplying tools. The answer to that is not constraining or eliminating the tools, it is punishing the criminal. We need not hate the criminal, but the punishment must deter the behavior.

No, NTSB, the solution to auto accidents involving speed is not to legislate and regulate how fast the tool (a car) can go. Yes, people are going to drive too fast, like the miscreant last week in Orlando. First, he likely should not have had "dad's Camaro." Second, perhaps parents could be held responsible? Like the Michigan miscreant situation recently in the news? Perhaps if we punish more consistently and directly, we might see less of the poor behavior?

No, the solution is not more anti-bullying, anti-harassment, anti-miscreant laws. We should all be chagrinned that harassing school children last year was not a universal and deafening call to arms. AI is a Tool (October 2023). The examples have been in the news. We should be embarrassed that Tom Hank's experience did not spur action, nor the bad experiences of a myriad of others.

No, it took the singer. The headlines are finally large. It took an entrepreneur billionaire. You see it could happen to anyone, but now it happened to royalty. The attention is drawn. She can obviously defend herself and has a raft of supporters for that effort. But, this assault will perhaps bring change because it involves royalty. She will perhaps drive a campaign of outrage and recompense that changes our course.

That is what is needed for our unsuspecting, underage, futures. Yes, those people headed to school each morning may look like "students," but in reality, they are "futures." Yours and mine. They deserve a fair, viable, safe chance to learn, grow, and succeed. They are being pursued, cornered, and bullied. The miscreants are gaining tools and efficiency, and basking in the shadows.

What if those "futures" don't thrive and succeed? Shame on us. Time to quit "harumphing" and do something meaningful. It is not time for task forces, meetings, and hyperbole. Time for action. Perhaps we start by finding the particular miscreant(s) responsible for the singer's assault/harassment and make their prosecution a shining and memorable learning opportunity for all?

"A Fool with a Tool"

Wednesday was all about AI. Bob Wilson hit us with the title of this post "A Fool with a Tool is still a Fool." I thought he would go the other way: "A Fool with a Tool may be a Tool."

The Point is a webinar produced by the team at WorkCompCollege.com. We started it in November 2022, and it is hard to imagine it was that long ago. We have had some great guests, and the focus of this quarterly gathering is to ask the simple questions in life, like "What is the point?

We have addressed some intriguing questions, like "what is the point of workers' recovery," and "the future of whole person recovery management."  We touched on AI: "Just How Smart is AI?" That was an eye-opener. But on January 24, 2024, we really dug into the nuts and bolts of AI and got a better understanding of the subject. Bob Wilson and I were joined by Jackie Jackson of the Colorado Division of Workers' Compensation and Jeff Snider, General Manager of P&C at Gradient AI. 

Ms. Jackson is studying IA, and focusing on the benefits it could bring to the regulator population. Mr. Snider is living AI, and is involved in both development and deployment. They each brought great perspective to the conversation.  As usual, Bob Wilson framed the conversation and the chat room bubbled with thoughts, perspectives, and questions. It was a fantastic foray into what AI means to you. 

What did I learn? Well, there is a revolution at hand. We have all heard of the industrial revolution. The time came when hands were replaced by machines. Productivity grew, economies grew, populations grew, and prosperity spread. You hear very few people today lament the implementation of steam engines, the cotton gin, the combine, the telephone, the airplane, and so much we take for granted. We were (most of us) born into a world in which these were ubiquities. 

We did not have to adapt to their innovation, disruption, and influence. We needed only to accept them as a part of our world. And Artificial Intelligence will be that for the next generations. The young of today are already taking AI for granted. Some of us old folks are also, but we did not know it perhaps. The point was made that many of the apps on our pocket computers (some call them phones) are AI. Things like the map program and suggested words in our texts are all on an AI foundation. Its been there a while. 

The point was made that AI is math. That drew some ire. RosemaryMcKenzie Ferguson (Australian advocate for workers, see The Man or Woman in the Glass (July 2019). I have never met Rosemary, but we have had a pretty good interaction over the years. She brings much to the table. She noted that "math is nothing to do with injured workers. Math is data not humanity." That is a valid criticism. And AI is math. But the two thoughts can co-exist. 

The point of the math, as Mr. Snider illuminated, has been with us since the beginning of socialized loss. There is a need to predict, to plan, and to fund loss. For eons, that was done with pencils and personal perceptions. That evolved into computers and personal perceptions. He highlighted the limits of our human recollection and perception. Now comes AI and it is going to (already is) do the math. Not new math, the same old math. But, it will do it with broader recollection, less inherent bias, and greater efficiency. 

Well, I noted that this sounds a bit like the assembly line or the production machine of the Industrial Revolution. When machines were created to crank out widgets, that was the end of craftsmen and women hand-making widgets (in truth, you cannot find a good widget anymore. Go ahead try). But, that was the beginning of more affordable widgets for us consumers. A plus. And, it was the beginning of a whole slew of new jobs like machine mechanics and product inspectors. The jobs did not disappear, they merely shifted foci. 

One of the commenters, Todd Holt, noted that "it seems AI is a tool in a toolbox." He likened it to a "Stradivarius in the hands of a master musician." He concluded that the "'tool' will not replace the skill, but it does help the master in making a better decision." A great view. That led Bob Wilson back to his point "A fool with a tool is still a fool." That is so true, whether the tool is a chainsaw, an automobile, or an AI. 

Mark Pew jumped in with a question on longevity. That was so apropos. Who wants to invest millions in the AI that turns out to be Wordstar, SuperCalc, or Pong? If none of these are familiar to you, each was once dominant for at least one brief, shining moment. Mr. Pew asked, "How quickly do AI solutions become outdated with the rapid evolution of the technology." That, it appears, can be answered with "pretty quickly." Bob Wilson has been using AI a fair bit already and he says that users can expect improvements on a recurring basis as the logic paths and the programming are adjusted and refined. 

Ms. Jackson put the demand issue bluntly. She noted that this community is struggling with an exodus of talent. She noted that her struggles persist in the recruiting, training, and motivating of the next generation of employees to manage the complexities that are workers' compensation. She is not alone, see The Donut Hole (February 2023). She hopes that the AI will be the tool that will enable experts to quit making widgets each day and to instead work on interpreting and adjusting the widgets that are made by AI. 

It is an exciting time. The perspectives are all worthwhile and influence us. There are potentials for greater efficiency and effectiveness. We must all remain focused on the injured worker and the employer (for whom this whole set of systems was created). We must not fear the future, or hide from the locomotives, airplanes, or robots. 

Asked to summarize what us normal folks should do today about AI, the consensus was clear. It is here. the best advice is to focus yourself on learning about it, understanding it, and using it as it is implemented. Study how you may implement it yourself. Evolve through knowledge into the next era of our information revolution age. 

Or, you may sit in the corner and text on your flip phone, but if you do you cannot complain that the world passed you by. If you are going to sit on the sidelines and complain, don't be surprised when the coach puts someone else in the game instead of you. 

I'm just sayin. Watch the recording here

https://event.webinarjam.com/go/replay/276/lq9k3sr7ty7szlak

Asleep at the Switch?

Two idioms share a meaning. Some say "asleep at the wheel," and others "asleep at the switch." The difference, it appears, comes down to whether you are an automobile or train person, according to Grammarist. This morning, I found myself thinking of that idiom(s) and Billy Shakespear's line in Hamlet - "Something is rotten in the state of Denmark." The two came to me when I heard from Horace Middlemier, Esq. about an intriguing situation in Kentucky.

Spectrum News 1 recently reported about an inmate who "will have a parole hearing 36 years after being found guilty." For several years, this inmate was on Kentucky's death row, but in 2019 "then-Gov. Bevin . . . change(d) (the) sentence from a death sentence to a life sentence.” That may not be so common, but it happens. The parole hearing is also likely to be surprising to some.

What is known for sure is that Debbie Pooley moved to Kentucky in the 1980s. She was 30 years old when she was abducted, raped, and robbed. Two people were arrested - Gregory Wilson and Brenda Humphrey. Ms. Pooley's body was then "dumped" in Indiana.

Gregory Wilson was convicted. Years later, the Governor commuted the sentence for "poor prosecution and defense." One source quoted by the Spectrum article says that there was some suspicion that the case was used by some to illustrate "how poorly funded the public defender system was." And he acknowledges that "Mr. Wilson was guilty as sin. I don’t think there’s anything the best attorneys in the world could’ve done to save him from being convicted."

The Spectrum story provides perspective from the relatives of Ms. Pooley, and some dispersions for the Governor who commuted the sentence.

The Cincinnati Enquirer ran a story about the commutation. It quoted the Governor's perceptions as noted there:

"To say that his legal defense was inadequate would be the understatement of the year,” “The prosecution and defense in this case were, from start to finish, incredibly incompetent.”

According to the Enquirer, "Several lawyers had been assigned to" defend Wilson, but for whatever reason those counsels did not persist. There was apparently a system in which attorneys could volunteer to defend such a case for $2,500, but no one stepped forward. The Circuit Judge "posted a notice . . . in a desperate plea for volunteers." Two lawyers volunteered; "one had never tried a felony before and the other, William Hagedorn, who offered to serve as lead counsel for free, had no office, no law books, and used the phone number of a local tavern on his business card."

The fact is that $2,500 sounds like real money, and was worth more in the 1980s. The Inflation calculator says that $2,500 in 1985 is the equivalent of about $7,500 today. However, defending a murder case is time-consuming and often complex. I have never had to do it, but it is a topic I have spent some time studying. Furthermore, I well know the amount of time required for prosecuting a workers' compensation claim, and can thereby appreciate how rapidly an attorney might invest time in any case.

Of course, there is no requirement that one have his own phone number, office, or books. After all, one might be The Lincoln Lawyer (Lionsgate, 2011) or even the more budget-conscious Impala lawyer. Perhaps, or possibly that is more Hollywood pablum.

But, the lawyer with the tavern phone "wandered in and out of the courtroom, cross-examined virtually no witnesses and presented no evidence to support a lesser penalty than death." Now, there are tactical decisions in any trial. Any good attorney will admit that how many witnesses to call, and what questions to ask are difficult decisions. It is never formulaic, and never easy to try a case. But it is very unlikely that "no evidence" is the right amount. 

Despite the need to be tactical and discerning, counsel must be present (as many an ad has noted over the years "you must be present to win"). Being in the room is critical and foundational. It is difficult to imagine any reason for not being present. The absence from the courtroom is a significant problem as is the failure to cross-examine thoroughly. I noted in If you are not Perry Mason, Bring Evidence (May 2013), you could win merely by destroying your opponent's case through exceptional cross-examination. However, that is not likely, not the way to bet.

In this case, there is a salacious element also. The co-defendant (Humphrey), "who testified against Wilson identifying him as the killer" was involved in an intriguing courthouse romance. No, she was not dating the presiding judge. However, she "was taken each day of the trial to the chambers of another judge, where they had sex." Well, as Meredith Willson noted years ago, perhaps "ya got trouble folks. Right here in River City." 

Yes, a witness in a capital case in coitus contemporaneous with one of the presiding judge's peers down the hall. The impropriety reeks and the appearance of impropriety is even worse. Canon 2, Code of Judicial Conduct ("A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities"). Did the trial judge know? Do judges talk among themselves?

The next red flag in this situation, according to the Enquirer is that the defendant, Wilson, told the trial judge he believed his two attorneys to be incompetent or inadequate. The defendant "represented himself during parts of the trial." For example, delivering his own opening and closing statements.

His opening? He allegedly said, simply, "I am not a lawyer, and I’m not guilty.” His closing? Apparently, the transcript of his pro-se closing was "less than two pages" compared to the 54 pages presented by the prosecutor. And he was on trial for his life. 

One might conclude that this defendant was not competently represented. One might criticize his tavern phone lawyer. However, might one question the trial judge? Whose job is it to assure that there is protection of due process in the proceedings?

We like due process. I have noted, "We like it so much we put it in the Constitution twice." See Constitutional Challenge Recap and Overview (March 2016). Both the 5th and the 14th Amendments enshrine due process. We have an expectation that sufficient process will be afforded. 

That is a challenge in balancing the provision of due process. Due process is essentially the opportunity to be heard. The constitution does not require one to have an attorney, less so a competent one. The law allows the opportunity to be heard but does not require that one take advantage of that opportunity. 

Any party is free to represent him or herself. Thus, we see many litigants who decide to do so. They face significant challenges, complexities, and technicalities. I have seen a layperson prevail against an attorney. Despite the challenges, their choice to represent themselves must be respected in general. 

Too many judges do not respect that right to choose. Too many wring their hands and continue proceedings repeatedly, or indefinitely, in some hope that the party will rethink and hire counsel. Questioning the party's informed decisions is not the judge's job. 

Making sure the party understands the implications and potentials of such a decision is the end of our responsibility. We appropriately tell people that they are in a challenging, complex, and difficult process. We remind them that they face sophisticated attorneys (which some mistakenly misinterpret as our endorsement of such attorneys or their arguments). It is not ours to represent them, to contradict them, or to choose for them. But we must make sure they make informed choices.

In a criminal prosecution, though, there is also the Sixth Amendment right to counsel. That is not a label, "counsel," but implies at least that counsel will be competent, what we have come to refer to as "effective." Many an appeal is pursued based on the "ineffective assistance of counsel." How can you be both competent and absent? If you hired a physician to do your surgery, and she or he was not present in the room, would that be an effective surgeon? Would you watch her leave the operating theater and then take up the scalpel yourself?

One might indeed criticize the trial judge in this instance. One might question whether assistance was competent, and conjecture that the shortcomings noted in the Enquirer had to be apparent and obvious to the trial judge. But, as the advocates for Ms. Pooley note now, mentioned by Spectrum News, the conviction has been upheld through the appellate process. As troubling as one might find the attorney work (or absence) cited, it appears it was up to the standards we abide by?

One of those appellate judges felt differently. Dissenting from an appellate decision, one federal judge was critical of "the unfairness and abysmal lawyering." But his dissent is a quiet criticism heard perhaps by no one, or perhaps only by the Governor that commuted the death sentence. There is some tendency perhaps to doubt the efficacy of the due process and Sixth Amendment in this story.

There must be sympathy in this story for the victim of the crime and the many she left behind. She is a reminder for us all that violence exists in our world and ultimately life is short and fragile. In our considerations, such victims must remain prominent. Prosecutors, police, and more must be diligent and energetic in protecting the public. The Law must protect such victims. However, the judge's role must fulfill the obligation that adjudications provide meaningful due process. The judge is no prosecutor, no advocate, no cheerleader.

The judges in this instance concluded that the constitutional guarantees were met. But one might wonder whether due process really delivered? In any legal proceeding with pro-se parties, there must be some degree of deference. Not in the manner of a judge favoring that party, but in patience and explanation. The judge must remain neutral, and impartial. But, the judge is responsible for the proceedings, and for the party being fully informed. 

Did the trial judge in this instance notice that the attorney was leaving the courtroom during the trial? Did the judge notice the defendant was delivering his own opening and closing statements? If the attorney was not expected to be present and participate, then why did the judge bother with pleading for and appointing an attorney in the first instance? Was the attorney who failed so miserably reported to those who license attorneys in that state? 

Did the judge advise the defendant, counsel the attorneys, or otherwise support due process? Or, was he "asleep at the switch?"

Its unCOMPlex

In My Favorite Year (MGM, 1982) Peter O'Toole plays Alan Swann. He is a flawed protagonist and it presents an entertaining premise. Essentially, he is an Erol Flynn kind of movie star cast to appear instead in a television skit show. He confides to the story hero that he thinks he can get the scene that night "on the first take." Our hero informs him the show is live, and that there is only one chance. Swann becomes agitated and exclaims "I'm not an actor, I'm a movie star." It is a great line. 

Live. That is challenging. Blogging is easy by comparison. I can spend hours poring over the contents here. I have spell checkers, and some AI thing that checks my grammar, usage, and so much more. I have the comfort of time, reflection, and revision. 

Live. That "is an entirely different kind of flying altogether." (it's an entirely different kind of flying, as in they repeat it, all together).  Or, let's just say that is entirely different. 

But, I have given a presentation or two in front of an in-person audience. I have presided over a video hearing or two. I have a few webinars under my belt. How hard could a free-flowing live webinar podcast be? Well, to be blunt, harder than I thought. 

In January, we debuted the new workers' compensation podcast unCOMPlex. It has a nice ring to it, but coming up with a name was challenging. This one has meaning, but I have not run into anyone who immediately got the double entendre there. See, the broad point is that workers' compensation does not have to be all that complicated (it's unCOMPlex). The word ties nicely into the fact that it includes "COMP," "so I got that going for me, which is nice."

But the Latin escapes most. Latin is perhaps the root of all pretentious communication, or at least "detached" communication. The folks at PBS say it is only useful if you want to "talk like a supervillain." That is likely going a bit too far. The article also makes the point Latin is "perfect . . . for introverts" as there is no one who speaks it. So, they argue, you would have an excuse not to talk to anyone. 

The medical and legal communities use a lot of Latin, and we get (and deserve) a fair bit of criticism for it. Plain speak would be better. By the same token, we should all avoid all those vague and uninformative shortcut acronyms we cling to in Comp. We tell ourselves they are shortcuts, but to the world, they are "detached," distant, and alienating. 

But, in this instance, it is poetic perhaps that "lex," as in COMPlex, is Latin for "law." And much of what people wanted to talk about in January was the law. That reference fits nicely in the broad purpose of the podcast. It will be a periodic opportunity for me to convey some updates on what is working and what is changing in workers' compensation, primarily in Florida law. 

But, more importantly, it is an opportunity to answer your questions. That is where it got harder than I expected. The chat room is difficult to monitor in real-time. It is doable, but not easy. So, without a producer or similar to catch, interpret, and categorize those questions it may be less fluid than one might hope. 

In exchange for that downside, the upside is the podcast will be real, timely, and focused where it should be - on the listener. So, the first episode is "in the can," and available for you:

YouTube (https://youtu.be/JAHMM4K4x_A)

iHeartRadio Link: https://iheart.com/podcast/143909915/

Pandora: https://www.pandora.com/podcast/uncomplex/PC:1001083575

Ress.com: https://media.rss.com/flworkercompensation/feed.xml

We have February scheduled (our goal is to be live at lunchtime on the second Wednesday of each month). The link will be posted on the OJCC Announcement Blog but is repeated here.

Log in for February 14, 2024:

https://us02web.zoom.us/j/81127816548

Meeting ID: 811 2781 6548; Dial by location 305 224 1968 or 646 931 3860

Or find your local number: https://us02web.zoom.us/u/kcSHim1a4w

See you in February.

Death and Taxes

I am persistently surprised by how we all make personal choices. Each day we are presented with a multitude of alternatives, some more palatable than others. For example, we might decide any day to either walk on the beach or go to work. I so often hear "I have to work," but that is just a conclusion. You only have to pay taxes and die (that is a rough adaptation of Benjamin Franklin's "Nothing is certain except death and taxes"). So, you don't "have to work," you can choose instead to get fired.

I know, I know, "THAT'S NOT FAIR." Oh my. Even the Hollywood elite will tell you "Life’s not fair. It never was, it isn’t now, and it won’t ever be." Matthew McConaughey (2016). Generation after generation has gotten over the whole "fair" deficit and challenge. More will get over it soon, and the next generation will struggle with it too. No amount of government-borrowed "free checks," "loan forgiveness," or other largess will ever make the world fair or convince the naive it is fair.

Choices. We all face a vast array of choices. We can choose jalapenos in our taco, and a double shot in our margarita. Great tonight, perhaps consequences tomorrow. We can run a 10k on a whim. Endorphin bliss today, muscle cramps, or worse tomorrow. Life, you see, is Newtonian. "For every action, there is a reaction." For every choice, there is a consequence. As you age, this becomes second nature (and you start to fear the consequences less perhaps, but see the jalapeno example).

A lawyer made the news for a choice recently. Horace Middlemier* sent me the article. I am very grateful when I receive a heads-up like that.

The story starts in December 2020 (mid-pandemic) when The Florida Bar filed a complaint against attorney David Woodward, who practiced in Paradise. There were various delays, but the "referee" (a Circuit Judge) gathered all of the information and filings by early December 2021.

The Referee concluded that Mr. Woodward was engaged in a 2019 case, and that he later "failed to notify his clients of a new trial date" and "failed to reply to the clients' phone calls or inquiries about their legal case." There was a failure to appear for trial, and Mr. Woodward said "he intentionally did not appear because opposing counsel would not comply with discovery requests or the order for mediation."

There was an order to show cause ("OSC" - that is a tool judges use to ask questions. When you receive an order to show cause, it is important and can be serious). Mr. Woodward did not respond to the order, "and did not provide his clients with a copy of the OSC as required by the order." That led to another OSC. Mr. Woodward was consistent, and neither responded nor informed his client. The judge acquiesced to his request for a hearing though and allowed Mr. Woodward to explain "in person."

The result was not positive for the client. The trial judge dismissed the plaintiff's case. That was "without prejudice," so it could be re-filed. But it was a dismissal nonetheless. The judge also awarded fees to the defense, though it is not clear whether the plaintiff or Mr. Woodward personally was ordered to pay those fees. When a judge awards sanctions, the situation is serious. It is a fair warning and should be heeded. 

Then came the bar complaint. The Bar began by forwarding the Plaintiff's bar complaint to Mr. Woodward. He "failed to answer." The Bar soon sent a "reminder letter," to which Mr. Woodward replied "he was very busy, but would respond at a later time." (You are never too busy to respond to the Bar). The complaint proceeded in April to a "local grievance committee" (an investigatory process), and a member of the committee reached out to Mr. Woodward, "but to no avail." In June, Mr. Woodward reached out "for the first time" to the committee member.

The Referee's findings are not oblique conclusions. They are striking. The referred noted Mr. Woodward "failed": "to communicate with his client," "to expedite the clients' litigation," "to respond to two orders to show cause," "to notify his clients of the two Orders to Show Cause," and concluded his conduct was "prejudicial to the administration of justice." The Referree concluded that Mr Woodward should "be found guilty of violating the following Rules":

"4-1.3 (Diligence), 4-1.4 (Communication), 4-3.2 (Expediting Litigation) 4-3.4(c) (Knowingly disobey an obligation under the rules of a tribunal), 4- 8.4(d) (Conduct Prejudicial to the Administration of Justice), and 4-8.4(g) (Failure to Respond to the Florida Bar)."

The Florida Supreme Court entered an April 14, 2022 order and suspended Mr. Woodward from practicing law. At that time, he had been admitted to the Bar over 52 years (November 10, 1969). In addition to the suspension, the Court ordered "probation for two years," and "further directed (Mr. Woodward) to comply with all other terms and conditions of the report."

This is the part where we come back to death and taxes. You might conclude that you have to do what the state Supreme Court says also. But, you would be wrong.

The Referee report said that Mr. Woodward

"will contact Florida Lawyers Assistance, Inc. (“FLA”) within 30 days of the issuance of the final order in this case to schedule a psychiatric evaluation by a mental health professional who is an FLA-approved evaluator."

and

"Then, based on that evaluation, Respondent will follow whatever FLA recommends, including entering into a rehabilitation contract."

For those who might wonder, Floririda Lawyers' Assistance (FLA) is an outreach that deals with troubled or challenged lawyers. Their fame comes from the great work they have done over the years with those challenged by addictions and similar. See Jeffrey Appel Passes (December 2023), Anger and Email (May 2019); Is it Manslaughter (April 2015).

However, FLA can provide a great deal of guidance and support for other challenges, such as stress, overcommitment, and more. They are, at a minimum, a patient ear for the lawyer who is behind the eight ball in practice and needs guidance. Here is a great thought, the contact you have with FLA is confidential and you can call them without the judge ordering you to. The point is there is a resource you can access if you need help. 

Mr. Woodward elected not to enter the contract with FLA regarding its recommendations about "outpatient substance abuse." The Bar eventually filed a petition for contempt and asked that he "be suspended for 91 days," that the prior "probation . . . be terminated," and that he be ordered to pay costs for the contempt proceeding. In December 2023, the Florida Supreme Court held Mr. Woodward in contempt. The Court suspended him for 91 days, meaning that a petition for reinstatement would be necessary for readmission to the practice of law.

In order to petition for reinstatement, Mr. Woodward "must":

"(1) undergo a comprehensive mental health and substance abuse evaluation by a professional approved by FLA, Inc.; (2) comply with any recommendations FLA, Inc. may have as a result of the evaluation, including entering into a rehabilitation contract; and (3) receive a recommendation from FLA, Inc. in support of his reinstatement."

The Miami Herald reported that Mr. Woodaward had declined the original FLA contract requirement, "asserting he would not give up his evening cocktails with his wife, nor did he have an alcohol problem.” It cites other statements he made and denials of any substance issues. Mr. Woodward also explained that the requirements imposed by FLA "didn't make sense," "robbed him of freedom," and "unduly extended his probation." Mr. Woodward also made the point that the FLA requirements, the "contract terms, weren't" “subject to discussion or negotiation.”

And, we return once again to death and taxes. No, no one can make someone sign a contract. Contracts are entered into by parties with the capacity to do so in an arms-length decision. Certainly, there are aspects of any contract that perhaps should and are subject to "discussion and negotiation." But, a great many contracts are put on the desk as take-it-or-leave-it proposals. Anyone who ever bought a car has experienced that.

There is, in that grand illustration of death and taxes perhaps the inkling of freedom. You are free not to sign a contract. In this instance, Mr. Woodward is free not to do what the Supreme Court told him to do. But, and there is reasonably often a "but," he won't practice law until he does. That is a choice. Some would say a reasonably difficult choice. Others might say an unfair choice. Everything he says about the contract (non-negotiable, non-sensical, onerous) could be true. But, that is the requirement. You do, or you don't.

The story recited here illuminates many choices that if made differently might have led to a different end. One might have chosen to respond to the trial court orders and follow instructions, show up for trial, respond to the Bar complaint, and more. There were decisions throughout. There were choices. 

Death and taxes. Come to think of it, it is really just death in the end. You can choose not to pay taxes also, but the outcome might not be what you hoped for. Ask Leona Helmsley, Al Capone, Pete Rose, Martha Stewart, Willie Nelson, and more. See DJA Suncoast. Perhaps they cannot make you pay taxes in the end, but they can certainly make you wish you had. Maybe following court orders is similar. 

Whether "the 81-year-old" attorney in Paradise signs the FLA contract and petitions one day for reinstatement to The Florida Bar remains to be seen. What is known is that fighting the law can be challenging, and any lack of diligence and responsiveness can be career-threatening. Life is about choices. We make them. And they can have consequences. We live with them.

The Grinch

It is all the rage. Artificial Intelligence is the buzzword of 2024. I have written a great deal about it. See AI is a Tool (October 2023), and the links there. As I hear AI discussed, I cannot help but think of The Grinch that Stole Christmas (Universal Pictures 2000)(MGM Television 1966). Well, no, I am not suggesting someone is going to steal your "who pudding." But stick with me here, the analogy carries pretty well. 

No, the Grinch was fearful of what he did not understand. He suffered anxiety and uncertainty. He concluded of Christmas:

"I must stop this whole thing! Why for fifty-three years I've put up with it now!I must stop Christmas from coming! But how?"

The Grinch invested significantly in his grandiose plot. It was involved, ingenious, and fatally flawed. He "slithered, and slunk" and labored through the night. The Grinch stole all the presents and the Christmas feast. He hauled it up the mountain and reveled in his success. Yet, he failed. From "ten thousand feet up, up the side of Mount Crumpet," he heard "a sound rising over the snow. It started in low, then it started to grow."

You all remember the plot. That sound was the many Who's singing. The Grinch is disappointed (or worse). He realizes "He hadn't stopped Christmas from coming! It came! Somehow or other, it came just the same!" He struggled to comprehend as he realized "It came without ribbons! It came without tags! It came without packages, boxes, or bags!"

And finally, "the Grinch thought of something he hadn't before."

Yes, Virginia, there is AI, and it is coming. You may steal the day (or night) and you may deny it if you wish, but AI is coming, inevitably(ish)(not much rhymes well with "wish").

Oh, and it will mean change. We hate change. See Departures and Progress (December 2023) and the posts linked there. Change is inevitable, inexorable, and irresistable. Like it, hate it, or ignore it, it will come whether you steal the packages or not.

The International Monetary Fund (IMF) Chief says that great disruption is coming from AI, according to CNN Business. She fears that the impact will be significant and disproportionately on the less fortunate. In good socialist-speak, she urges "Government to establish social safety nets and offer retraining programs to counter the impact of AI." Is the government always the answer?

She was speaking from Davos, Switzerland, where all the cool kids are this week. They hopped into their private jets and headed to the picturesque and trendy ski resort of the rich and famous. There, they will discuss how the rest of us "proles" should live our lives. 1984, George Orwell. As an actual "carbon neutral" and there are not that many of us, I always enjoy seeing the rich and famous jet-setting around the planet. 

The Chief is not all doom and gloom. She notes that AI will "help . . . the human workforce" in some regards, but will "hurt" them in others. The result will be greater efficiency and effectiveness for many of us and as a result, less demand for humans to help and support our efforts. She predicts that in the broadest analysis "40% of jobs around the world could be affected." But in "more developed economies . . . as much as 60% of jobs could be impacted." (Uh, that "developed" is us here in America folks. I'm just sayin).

While some may see threat or solace in these, depending on perspective, the fact is that both numbers illustrate significant pervasiveness. The threat is real, the threat is now, we must embrace it, how, how, how? (loosely adapted from Marvin K. Mooney Will You Please Go Now - Theodor Geisel, 1972).

The IMF chief sees a decreasing demand for human labor and a resulting downward pressure on wages. Well, not in America you say? We do not believe in supply and demand here (wages cannot decrease below the central-committee-mandated minimum wage, even if that means job loss. See the great debate and layoffs in the People's Paradise of California on the World Socialist Web Site ("Corporations retaliate"). OK, so perhaps the minimum wage is not a panacea? Maybe wages don't decrease, but the supply of jobs does? Or maybe the central committee steps in and makes businesses each hire at least "x" employees they don't need? The extras could stand around the work site and lean on shovels. That sounds familiar somehow. 

The CNN article notes that businesses are already "rethinking staffing levels." AI is becoming "more mainstream." The change is here, and you cannot stop it any more than the Grinch stopped Christmas. 

I am interested in and intrigued by AI. This month, The Point will address "AI, Workers’ Comp, And Your Future." We are going to get the down-low and nitty gritty from Jackie Jackson, the Manager of Business Operations at the Colorado Division of Workers' Compensation, and Jeff Snider, the General Manager of P&C at Gradient AI. Our host, Bob Wilson, is a tech-savvy innovator in the workers' compensation community, and I have a lot of questions about AI, and where it will impact workers' compensation.

The Point is free, part of the efforts of WorkCompCollege.com, and it is at 1:00PM Eastern, Wednesday, January 24, 2024. You can register here: https://workcompcollege.com/the-point-webinar-ai-workers-comp-and-your-future/. Did I mention it is free?

I am also proud to have been invited to speak on an amazing panel at the 2024 Workers' Compensation Institute in Orlando. On August 19, 2024, from 1:15-3:30 (that is a long panel). I will join an amazing brain trust to discuss how AI is "revolutionizing the MedicoLegal Field." This panel includes luminaries of workers' compensation. I will write more about this amazing group one day, but it includes (spoiler alert), Christopher Brigham, MD who has already deployed AI in his practice, and Negar Matian, JD who has significantly leveraged technology in "innovative approaches" to practicing law. I intend to learn a great deal from these two and the entire panel.

Is AI in your future? Is it a big distraction, a "flash in the pan?" Is it a threat? Is it a revolution? Is it good for you? Will it destroy us all? Sorry, I am re-watching Terminator (Orion Pictures, 1984) as I write this. If you are not thinking about it, you should be. If you are not questioning your future involvement and interaction with it, you should be. If you are the least bit interested in the future, you should join me for one or both of these upcoming opportunities.

Or, you may stand on Mt. Crumpet (figuratively or actually) and cackle with joy as you imagine you have defeated it, avoided it, or kept it from coming. Take it from me, you haven't. 

Lawyer Representation

When lawyers are hired, there are various duties owed to the client. A recent news story highlights this, and illuminates the challenges of closure when such relationships do not persist. 

This Clearwater example involves Dennis Szafran, who reportedly "abruptly" closed his law firm in October, as reported by Fox13 Tampa. Since then, he has "been trying to, as diligently as possible, trying to file motions to withdraw" from about 800 cases. That is a great many cases. It would likely require about 10 minutes to prepare and file such a motion in any case. So, for 800 cases something close to 133 hours, or 3-4 weeks work perhaps. There is much of that work that is merely cutting and pasting. 

The accounting and firm closure may be another issue. There are allegedly clients who believe Mr. Szafran has not performed the work they paid him for. Some allege he "is now refusing to refund their money." In a court appearance, he reportedly informed the judge "he's out of money," explaining that he has "no funds . . . or any assets held in my name or my firm's name or trust account." Interestingly, Fox News reports that "public records show he . . . purchase(d) a new home . . . last September" for $737,500. But in the world of mortgages and debt, there is no way to know how much of such a purchase is owned by a bank.

The judge explained client representation to Mr. Szafran. The point is that law firms do not represent clients. Lawyers do. When a notice of appearance is filed, that is a member of The Florida Bar stating that she or he represents the client. If the attorney leaves a law firm, joins a law firm, or closes a law firm, the lawyer still represents that client. That is changed only through withdrawal from a case or by substitution of some other attorney. It is a process and is designed for the protection of the client and orderly case management by the judge.

In Florida workers' compensation, there is guidance in Rule 60Q6.110:

(2) Substitution or Withdrawal of Counsel. During the pendency of any issues before the judge, an attorney of record remains the attorney of record until:
(a) A stipulation for substitution has been filed with the judge and served on all other parties or, if represented, their attorneys of record; or
(b) A motion to substitute or to withdraw, which reflects that it has been served on the client and all other parties or, if represented, their attorneys of record, is granted.

This is fairly simple and fairly consistent with other practices. Once a lawyer is on the case, he or she remains on the case until there is substitution by stipulation or the judge allows withdrawal. It is formal. Some would say it is too formal or even nit-picky. But, it is the rule, and the point is to protect the client who hired the lawyer in the first place. 

Fox News reports that the judge told Mr. Szafran:

"I understand your firm may not be operational, but if you're still a member of the Florida Bar, you're still accountable for your responsibilities until and unless you're relieved of those responsibilities by an order of this court."

Dealing with the challenges that people face is what lawyers do. As Don Henley noted, "The lawyers clean up all details" (End of the Innocence, Geffen 1989). The client brings challenges, difficulties, and even strife and stress. The lawyer takes on that pressure and challenge, applies expertise and ability, and hopefully provides help and reassurance. That does not mean that the client always prevails. 

It does mean that the lawyer does a competent and professional job to represent the client's best interest. Sometimes there is success, and other times are best described by The Clash: "I fought the law and the law won" (I fought the law, CBS 1979). The most competent and diligent lawyer will not always prevail. The law is sometimes against a client, or the facts may conspire to defeat the client. However, the lawyer should be diligent, persistent, and professional in pursuit of a favorable outcome. 

Time and again, we see lawyers in trouble for their failures or missteps. Who can forget Mr. Douglas? See Disciplined Attorney and Repercussions (September 2018) and Then Arrested (January 2021). More recently there is Mr. Soto, Petition for Disciplinary Revocation (August 2022). There are too many sad outcomes. Whether there is misfeasance or mistake in every sad story is not knowable. There is much to sort through, and questions to be answered. That, similarly, is for judges and juries to sort through. 

Fox 13 notes that in the present instance, The Florida Bar may be investigating, and also perhaps local law enforcement. There is even some suggestion that a client may be looking into a lawsuit against Mr. Szafran. There are various potential challenges and recourse when relationships fail. It is important to remember several things. 

First, we believe people are innocent until proven guilty. There may be a great deal here that is worrisome, but whether anyone has done any wrong remains to be seen. Second, in any event, it is the lawyer's responsibility to protect the interests of the client. That is critical and axiomatic. 

The responsibility for representation is clear. Once an attorney enters an appearance, that attorney (not her or his firm) is responsible for that case. They are "of record" until withdrawal or substitution (a new lawyer to a case can be the one to prepare that substitution; if the client has money to hire a new lawyer). Lawyers must remain focused on representation as they change firms, cease relationships with clients, and more. 

Relationships with firms and partners may change. There may be accounting and even disputes. Firms may come and go, and attorneys may cease practice. But the obligation to the client is sacrosanct. The interest of the client must be the persistently primary focus and must be addressed. 

Awards and Memories

In the spring of 2018, I penned a piece regarding the Forum. I remember attending that year. There was an opportunity to sit at a hallway table with various judges and lawyers. It seems different in retrospect. That was pre-COVID, pre-OJCC Consolidation, and for whatever reason it is etched on my memory. In 2018 Forum Recap and Professionalism (April 2018); 2015 Frierson-Colling Professionalism Award (2015), I had the chance to discuss professionalism and The Florida Bar Workers' Compensation Section's efforts to recognize it in their members.

Notably, the Section has had two professionalism awards in my memory. The first was named for Bud Adams. I have striven with little to no success in documenting and memorializing all of the folks recognized with that. Over the years, a great many people have listened patiently to my lamentations of our disappearing history, and several have tried to help me document the Bud Adams honorees. But, I am convinced we still lack some names.

I have done a bit better with the more recent award, which was inaugurated in 2008. It was initially named for a gentleman from Ft. Myers who was a legend in Florida workers' compensation before my time. He is mentioned often by the aging among us. Al Frierson was a defense attorney, a lobbyist, an activist, and a force to be reckoned with. I do not recall when I first met him, but I have fond recollections of various advice he offered me over the years.

The Section amended the award, and re-named it, in 2009. See 2018 Forum Recap and Professionalism. Since then, it has been the Frierson-Colling Award. That brought some balance to the force, perhaps. Stewart Colling was a well-known claimant's attorney in Orlando. He too was involved in the legislative process, various lobbying efforts, the Section, and professionalism. The cojoining of those two names rendered a clearly balanced and aspirational label that is fitting of such an effort and recognition.

2008 Albert Frierson (Ft. Myers, FL)

2009 Stewart Colling (Orlando, FL)

2010 Richard Sicking (Miami, FL)

2011 Jacob Schickel (Jacksonville, FL)

2012 Herbert Langston (Orlando, FL)

2013 Ramon Malca (Miami, FL)

2014 Richard Thompson (Sarasota, FL)

2015 Richard Chait (Miami, FL)

2016 Thomas Conroy (Hollywood, FL/Las Vegas)

2017 Dawn Traverso (Miami, FL)

2018 Hon. Neal Pitts (Orlando, FL)

2019- Christopher Smith (Tampa, FL)

2020- Paul Anderson (Tallahassee, FL)

2021- Glen Wieland(Orlando, FL)

2022- Honorable Robert Dietz (posthumously)(Orlando, FL)

2023- Mark Touby (Miami, FL) my memory fails me here, and the World Wide Web did also (amendment coming)

The Section maintains a list of the honorees on its website.  

What do we know of the Bud Adams Award? Not so much. It is named in honor of one of the founders of the Kelley Kronenberg firm. He was named a Legend in the Florida Workers' Compensation Hall of Fame in 2012. But to most of us, he is merely a name in the past. 

In 2019, I set out to document the recipients of that honor. I did not do so well. We know that Ramon Malca was presented with the award. Gerald Rosenthal was also. George Kagan received the recognition "a few years" before 1994. At some point, Stephen Rosen was presented with the award (in 1991 perhaps). J. David Parrish was presented the award, seemingly also in 1991 (though that seems unlikely, two in one year). Stephen Rissman was presented the award in 1985. I am confidant that James McConnaughhay likely did, but he is not the type to list such things on his profile. The Workers' Compensation Institute described the award: it "was created “to recognize those who had performed outstanding and selfless service in advancing the philosophy and practice of the workers’ compensation system.” WCI Newsletter (May 2012). In 2024, I am going to figure out who won that award. I am not sure how I will, but you have to have goals. 

I strive not to repeat (reprint) information on this blog. The WorldWide Web is so ubiquitous in our modern age (I shudder to think of how antiquated and naive we will all appear to our successors in decades to come). However, I re-post here from various sources. I do so because I struggled to find information on these three namesakes. At least I can assure that something remains and is accessible for a time. Who knows, this blog may be buried one day amongst the other detritus of this information age, but perhaps the following will survive.

The award was named for W.L. "Bud" Adams, one of the founders of Kelley Kronenberg (Miami, 1980), which at that time was Adams, Kelley & Kronenberg. In 2012, Ramon Malca provided the following brief biography of Mr. Adams:

"Bud Adams was a universally respected workers' compensation defense attorney who practiced in South Florida until he died at the age of 59 in 1984. He was a highly skilled attorney with tremendous personal integrity. His career in the workers' compensation field

began as a independent adjuster handling workers' compensation claims. He went on to law school and from there a distinguished career as one of the foremost defense attorney's in the State of Florida. Among those he mentored are Charles E. Kelley, Steven Kronenberg and Ray Malca. In his memory an award was created by the Workers' Compensation Section of the Florida Bar entitled The W.L. "Bud" Adams Award which remains an award given to the best and brightest in the workers' compensation field. Bud Adams brought to his beloved profession great personal integrity together with complete knowledge of how the system evolved and was intended to operate."

One namesake of the current professionalism award, Al Fierson, was featured in the WCI Newsletter (May 2012). The following is excerpted from that:

After graduating from Duke University Law School in 1962, Al Frierson began the practice of law with the firm of Henderson, Franklin, Starnes & Holt in Fort Myers. Al was the manager of the Workers' Compensation Department. He retired from the firm at the end of 2003 after more than 40 years of service. In January of 2004, he opened his own professional association to handle workers' compensation mediations. Al was one of the founding members of the Workers' Compensation Section of the Florida Bar in 1974. He served on the Executive Council for 15 years and chaired the Section twice in 1978-79 and 1988-89. Al helped implement the Board Certification program for the Section. He became board-certified in 1988 and continued until he retired from the active practice of law in 2004, During the years of his practice, Al was appointed by three different Florida Governors to serve on Legislative Task Forces or special legislative committees on the Workers' Compensation Law. During those years, he drafted many pieces of legislation that ultimately became law. Al is a co-author of the First Edition of Florida Workers' Compensation Practice Manual. He has given numerous speeches and seminars on this field of the law.

The other namesake is Stewart L. Colling. His former firm published an In Memoriam that describes him. The following is excerpted from that tribute:

"Mr. Colling dedicated himself to protecting, pursuing and expanding the rights of injured persons, especially injured workers. His dedication to workers’ compensation was an inspiration. Stewart L. Colling was born in Winter Park, Florida, December 30, 1959. He received his Bachelor of the Arts degree in 1982. He then attended Stetson College, receiving his Juris Doctorate in 1985. He was admitted to the bar in Florida and the U.S. District Court in 1986. He was admitted to the bar in Texas in 1993 and in Colorado in 1995. Stewart Colling demonstrated his leadership in a number of legal organizations: the Orange County Bar Association, the Florida Justice Association, and the Florida Workers’ Advocates, (and) he was appointed by Governor Bush to the Governor’s Commission on Workers’ Compensation Reform. He was a member of the Executive Council of the Workers’ Compensation Section of the Florida Bar from 2006-2008. A former partner in the Morgan Colling and Gilbert law firm, he was a founding partner of Colling Gilbert Wright, PA."

I am grateful to all three for their service to this community. I am glad to have known two of them, and for the interactions I continue to enjoy with Al. 

Sugar or Not

Can we be persuaded by our pocketbook? Years ago, I noted the New York plan to prevent obesity by regulating soda. See Can I Get a Team Gulp (July 2014). New York was not alone, the idea of financial disincentive spread. See Soda Taxes (December 2016). There is no doubt that America is in the throes of a variety of challenges. Among our current pandemics is obesity and the thought behind these efforts is to make it more expensive to be fat. See What's in a Name (August 2020); Comorbidity of Obesity (October 2021).

There are critics of the taxation route. The Washinton Post ran an opposing viewpoint in 2019 that asserted such taxes are both ineffective and disproportionate in their impacts. But CNN reports that raising prices of "drinks by an average of 31% reduced consumer purchases of those drinks by a third." Some will perceive symmetry there. If raising the price 30% reduced consumption by 30%, perhaps raising the price 100% would eliminate consumption the same? Doubtful. Despite that, the CNN story quotes one analyst's "1% equals 1%" conclusions.

More broadly, some might also question whether the current pace of inflation is affecting consumer habits in a more general sense. Is it possible that we consume less of such products as the price rises through increased production, transportation, and other costs generally? Might that have a disparate impact in the area of convenience consumption (the soda at the gas station?), or discretionary spending generally? Apologies for the singular "soda" reference, a "pop" or a "soft drink" for the rest of you.

The CNN story also references the thoughts of some in the beverage industry. They see less persuasiveness in the regulation and taxation. One notes that there is an increased variety of competing products. I have noticed a proliferation of "Zero Sugar" soda in my retail shopping. It is comforting to a perennial dieter like me that I no longer have to consume "Diet" soda and can now choose "Zero" instead. That subtle distinction aside, the beverage folks say that 60% of the pop we consume now is sugarless.

As an aside, how much less sugar soda would be consumed if restaurants offered more alternatives? Next time you eat out, even if you do not wish for an alternative, ask the wait staff what their alternatives are. Many restaurants offer a variety of soda, but only one "Diet" or "Zero" cola. Try to find a no-calorie lemon-lime in a restaurant that lacks a fancy "all alternative" machine. In most, that single diet cola or "unsweet tea" or water are the only balance against a raft of sugary alternatives. Why?

Did the sugar taxes diminish the consumption through consumer detriment (price) or did it increase alternative consumption through producer detriment? Producers faced with the prospect of sales diminishing because of the economic reality of higher prices were perhaps encouraged to place competing products into the equation. Those products, marketed alongside the more expensive sugar alternatives perhaps contribute to the consumer choice? In the restaurant setting, is the customer charged differently for a diet or sugar soda? A review of online menus leaves some doubt. 

Is it the taxes? Many thought that when the taxes on cigarettes increased (currently $1.01 federal and $1.34 in Florida, plus the 6+% sales tax) consumption would stop. But many a convenience store still has a "cigarette wall" behind the register. Someone is still buying these products. Nonetheless, it appears cigarette use is at historic lows. But, some might point to the "alternative" there and vaping. There is some measure of decrease in that market also, but is some cigarette success due to the vaping alternative?

Furthermore, is the soda benefit clear? The CNN article notes that there are potential dangers in the consumption of either soda with sugar or without. The authors point to the potential for "chronic disease" and "risk of dying early." The conclusion, nonetheless, is that reduced sugar intake is positive in terms of decreasing healthcare costs. But what will be the next concern when the sugar is gone and the focus is changed?

The analysis may be complicated by the patchwork of regulation. Every state taxes tobacco, though at varying rates. However, CNN notes that "Nine US jurisdictions . . . have implemented some form of consumer tax on sugar-sweetened beverages." NPR suggests that the study referenced above (the 33% reduction) is focused on "five U.S. cities after they implemented taxes targeting those drinks." The sugar tax, therefore, is not widespread. Conversely, the statistic that 60% of consumption is now non-sugar is widespread. Perhaps there is more at work across the country than taxes?

The point of all of this is that the determination of cause and effect can be challenging. Though there may be a demonstrable impact of any action, whether a regulation or a tax, there may be the potential for alternatives. The workers' compensation community saw this in the 1990s when various doctors began proclaiming the benefits and harmlessness of safe and efficacious opioids. That alternative consumption turned into a pandemic of its own, and thirty years later we are still working through the human and financial costs.

Do taxes and regulations impact consumption? In all likelihood they do. Is that impact significant? That is a harder question. The regulation of sugar drinks in a handful of jurisdictions or municipalities is not driving the consumption of zero-sugar to 60% overall. The incredible inflation of the post-COVID world is driving consumption decisions. The availability of an increasing variety of alternatives is driving consumption decisions.

As with vaping, the questions will persist. Is the alternative better? Are zero sugar "healthy" or merely "less unhealthy?" When regulation and taxation are engaged to change consumer behavior, is the result improved health in the broadest sense? Or, will the change merely lead to a future campaign against the alternative?