It's a Mystery

There is a fair bit being written about the "next generation." 

The "lost generation" (1883-1910; 114+) is passed, the "greatest generation" (1901-1927; 97+) is dramatically shrinking. The "silent generation" (1928-1945; 80-96) is rapidly aging out of active societal participation, but perhaps retains some potential to mentor and influence. 

Now comes the decline of the once mighty "baby boomer generation (1946-1964; 60-78). The oldest "boomers are in their late 70s and the youngest are on their final approach for retirement. These are the old guys like Rafael Gonzalez who has "been there, done that," but may have a few years left in the tank. They may not have their gears down, and they may not be fully lined up on the field, but most of them can see their destination landing strip.

I was in Miami and West Palm Beach last week. It was an intriguing trip from various perspectives. Some new experiences, and fresh faces. And there were a great many familiar folks in the audiences. In a nutshell, it was fantastic to see people in person. It was encouraging to meet and converse with young lawyers. Back to the "next generation."

"Generation X" (1965-1979) is reasonably engaged today. These folks are 45-59, and in large part are now running things. They have quietly assumed the mantra of management, responsibility, and ownership. They are reasonably cordial to the old "boomer" folks, but they do have some different thoughts. That said, they are closer to the "Boomers" and their habits than they like to think.

They are followed by the "millennial generation" (1980-2000). Those folks range from mid 20's to mid 40s. The Millennials are the largest group of workers in the American workforce. They are perceived by some as "unique" and others as "unprecedented." In truth, they are merely different, just as each successive generation has been, always, forever. They are the children of the 1980s in large part, steeped in the begining of the "me" mentality. The 1980s largely brought us acceptance and even celebration of narcissism ("extermely self-involved.")  

And the "next generation," labeled by the so-called experts as the "new silent generation" or "generation Z." These folks were born into a world of wonders. They do not recall a great many things we old folks found innovative and wonderous, but today are curious and antiquated (dot-matrix printers, floppy discs, and more). 

The "next gen" stands on the shoulders of the prior generations and reap the benefits of innovations and ingenuity past. Before you are too hard on them, we have all done so with our individual and generational comings of age and torch passing. They too will come to realize, in time, that we are all both blessed and cursed by our predecessors. 

Without exception, every generation has uttered the dreaded "these kids today." There is a universality to the lamentation of whatever any "next generation" faces. You need not believe me on this, just stick around a bit and you will witness it yourself. Remember Carly Simon?

"I know nothing stays the same

But if you're willing to play the game

It's coming around again"

(Arista 1987). Are you "willing to play the game?" The 20-somethings of today will soon enough be sitting in a rocker on the front porch screaming "you kids get off my lawn," and lamenting "these kids today." The die is cast, the cycle inescapable, the irony thick. 

Thick as the irony is, it can only be lived forward and yet only appreciated in retrospect. The "next gen" are on the same roller coaster ride I just got off of, but they are convinced their ride is unique and unprecedented. They are mistaken, but no more naive than I was when I got on a few months back.

There is a wonder in the world of today. People walk around with 24/7 (near) uninterrupted access to a vast assortment of human knowledge. Back in my day, we lamented having to learn mathematics and memorizing historical dates. I vividly recall the "how will I use this," and "why can't we use our calculators?" Yes, they were calculators, not abaci. I remember teachers expressing their beliefs about knowledge, learning, and education. They had a perspective, and it did not necessarily gel with ours. There was friction. 

I recall comments like "you may not always have a calculator," and "knowing dates brings you perspective." I didn't buy a lot of that then, but over the years I have come to appreciate some of it (retrospect). 

In college, I spent an entire semester learning how to long-hand calculate various averages, deviations, and related formulae. I can do the same math today with almost any spreadsheet program in a few moments. When I forget how, my good friends Google, Edge, and Firefox are ready advisers. Remember Paul Simon?

"When I think back, On all the crap I learned in high school

It’s a wonder, I can think at all"

(Columbia 1973). He was singing about film. Kodachrome film. Half the people reading this will need an internet search to grasp what that is, and why it was important. Why recordations in living color, bright, vibrant color mattered (matters?)("everything looks worse in black and white").  

I am promised that my computer will continue to improve. The software will become increasingly pervasive and interactive and even prescient. I am promised a robot to do my bidding and make my life easier. I am promised self-driving cars, smart appliances, and more. I am promised a never-ending parade of intervention with and substitution for "me," such that my skills, knowledge, and experiences will become increasingly a redundancy and obscurity. In what will I find self-actualization, some video game?

I have recognized my coming obsolescence. To an extent, I have accepted it. I am confident that there soon comes a "next generation" that will be capable, effective, and successful, whatever that means for them. But, I am often given pause.

The New York Times published "A Crisis of School Absences" recently. The main point is that school absences increased during COVID-19 (28% chronic absence). There is no surprise there. What is troubling is that the rates have not returned to pre-COVID (15% chronic absence) in the years since. The "chronic absence" means "missing 18 days of the school year for any reason." That is almost four  weeks. That is a troubling trend. Is anyone else troubled that 15% is (or ever was) accepted as "normal?"

Those who study such things are troubled that "absenteeism has increased across demographic groups." This is a biased and prejudiced statement that borders on revolting. Why is the trend more disturbing because it is more widespread? Why was it not just as disturbing in any, isolated, demographic? Is it me? ("you kid's get off my lawn!"). Why is absenteeism spreading, increasing? It's a mystery ("no its not").

There is direct educational impact. But, the article also notes that the "absenteeism means less stability about...friends and classmates." There is an element of school attendance that is social in nature (who knew?). The desire to attend, to engage, and to interact plays a role in attendance. Social contact matters? And today, we are all acutely aware that some measure of the next generation is struggling with social interaction beyond the digital device.  

I heard an old lawyer lament on this trip "kids today have no idea how to ask a girl out." I did not have the heart to remind him that no guy in the history of the world ever "knew" how to ask a girl out. That is why every guy has struggled and failed in the effort (you want a mystery? that's the real one). But, there was usually some growth in those failures. Trust me, young folks, your struggles are not new, special, or different. You will fail. You will fall. Get up and go again. You have every advantage we old folks had and the challenges you face are surmountable. 

The Times concludes that this social involvement deficit is a societal challenge. It notes the trend toward virtual work and says that "anyone who works in an office with a flexible remote-work policy" is seeing discontent with employees who are not present. There is some envy, some angst, and a melange of other emotions. As the author puts it, "you diligently show up, but your coworkers aren't there. What's the point?" 

The suggestion is that such emotions on attendance are affecting students also. So, lets grasp that. Let's return to an age that included "recess." Perhaps let's bring back our appreciation for band and chorus classes. Let's admit there is room in society for those who do not desire or need a college education to be perfectly content and productive members of society. You are not going to program a computer to repair my plumbing, fix my A/C, or a bevy of other skilled and necessary tasks. 

Perhaps there is a feeling centered on what school delivers. Is there a relevance and importance to what is being taught? Does the "next generation" feel that they will put this information to good use one day in managing their robots, understanding their artificial intelligence overlords, or otherwise surviving (thriving?) in the world they have inherited? If not, whose fault is that? Yes, Virginia, it is ours.

The world of tomorrow is not mine. I am fine with that. I have the field in sight, my descent profile is solid. Speed, altitude, and conditions are all nominal. I can make the landing from here. The moment of dropping the flaps and putting down the gear are approaching. I'm not ready, but I know what is coming. And there is a vast population that will need to thrive tomorrow. They will need leaders, workers, managers, products, services, medical care, and more. Those will not be me. 

The American education system needs to find relevance and deliver value. It is time to quit cramming algebra down the throats of those who won't use it and bring back the shop classes that provided foundational and appropriate education to a multitude of people we all benefit from daily. 

School needs to teach relevant skills and knowledge. Families need to provide guidance, nurturing, and perspective. The "next generation" needs to appreciate the history upon whose shoulders they stand and yet find the motivation, inspiration, and intellect to plot their course to success. Their success. We can facilitate. We can support. We can even provide them the benefit of our retrospection. 

They will largely ignore it, just as we ignored our parents and as they ignored their parents before them. No old fogey ever knew anything. But, though I patiently listened and ignored at the time, a great many lessons of the "greatest" and the "silent" I knew have returned to me over the years. In retrospect, they patiently taught me so much for which I am eternally grateful. I wish I had been smart enough to engage their knowledge and advice sooner. 

In short, the "next generation" needs to define "success." They need to be able to think about what their beliefs, values, and inspirations are. But that must be tempered with the realization that we old folks have made a bevy of mistakes, missteps, and blunders. They have to know that history is a hard teacher, but it is of immense and immeasurable value. Some of us who lived through it, and learned from it, might provide a parade of good advice and avoidance.

The time has come for them. This is their day, your day. You will not solve all the world's problems, but your failure in that is universally shared by every generation that precedes you. Make your way, find your path, and feel free to invite us along for consultation, perspective, or suggestion. No one in the world is more interested in your success and progress than we old folks. 

In the meantime, "get off of my lawn," "get a haircut," and for goodness sake "turn down that terrible noise you call music." 

 

Sometimes an Angel

All skill is in vain, under certain circumstances. 

There was a humorous homily that led with "all skill is in vain" and implicated an "angel." Back in the days when no one had a printer or copier at home (a long time ago), we used to use stores that sold photocopy services. Seriously, we did not have printers, copiers, computers. It was an analog world. 

Those printers would put pithy sayings on various colored papers, with their logo and phone number, and you could pick them up for free. It was good for laughs before there was email, social media, and the like. Yes, we actually handed funny stuff to each other on paper. Before you young folks think too critically of me, it was not even that long ago, in the 1970s, and even 1980s. 

The "skill" saying came to mind as I watched the Dali careen into the Francis Scott Key bridge in Baltimore. On top of my sense of recollection (I’ve driven that bridge many times), my immediate reaction was for the motorists. 

The ship personnel did not immediately come to mind, they were likely riding well aft of the collision.  I had no premonition that there would be a maintenance crew fixing potholes on the bridge. The most likely victims, it seemed in that moment, would be the drivers. 

The news soon broke that the ship made a radio call when it knew it was in trouble. That has been called a "mayday." In a technical sense, a "mayday" is sent in order to summon help. It is a way for a ship or plane to seek help. But in this case, it was a warning to public officials about the impending impact. 

The Washington Post reports that "mayday" led officials to stop vehicle traffic. Someone(s) thought quickly, stopped traffic, and saved lives. They did not have hours to plan, discuss, and deploy. In a matter of minutes, someone(s) lept to action and they averted a significantly worse outcome. I hope someone gets a pat on the back.

Since the event every news organization in the world has sought material or perspectives. There is only so much click traffic you can expect from the same repetitive headline about the bridge collapsing. There have been interviews with harbor pilots, engineers, public safety experts and more. 

Some of that is appropriate news gathering, and some of it is simply clickbait. You be the judge. I have been critical of clickbait periodically. Anyone who wants to shut down the flow of disinformation in this world, or the harassment of various people, should just say "no" to clickbait. If you stop clicking, they will stop publishing (eventually). 

Pilots - where were the pilots? There were two, according to CBS. Each harbor in the world employs pilots. They are the "local experts." They are doing the driving in the harbor. They know the currents, the channels, and the challenges. The captain of a ship might steer through Baltimore harbor once in a blue moon, but the local pilots do it every day.

So how could this happen with the experts on board? There was a power failure. Business Insider says that Dali had a capacity of 95,000 tons. One ton is 2,000 pounds. Think of an object that weighs 190 million pounds. It would take an awful lot of force to make that move. And, from our familiarity with Newton, it would take a lot of friction to make it stop again. The pilots did not cause the collision, and having a dozen more on board would not have avoided it. 

Fenders - could the government have built fenders around the support columns to stop or deflect a force like the Dali? The answer is absolutely yes. But, that answer is only to the specific question, "could they build them." The larger question is "would it have helped. See above re 190 millions pound projectile. What structure would effectively stop such force in motion?

CNN refers to the Dali and ships like it as "massive." Yeah, and LeBron James is a "good" ball player, Taylor Swift is "successful," and pizza is "tasty." Massive does not capture it. CNN quotes an expert who says "No bridge, unless a fortress is built around it, could survive such an impact,”

Speed - speed kills. We have all heard that a million times. What vehicular accident news fails to mention that? Every police official in every jurisdiction will note speed. They will reference it in absolute ("too fast") and relational ("for the conditions"). It is a persistent concern. 

CBS reports that the Dali was traveling 9 miles per hour. Nine. Humans walk at about 3 miles per hour. Usain Bolt sprints at about 27 miles per hour. You drive your car down the interstate at 70 miles per hour. Speed?  The boat was moving at 9 miles per hour. And, as several "experts" have opined, "boats have no brakes." No, speed was not a factor in this collision. 

Age - our infrastructure is aging. There have been some expert interviews about our "aging infrastructure." A few have mentioned that the Francis Scott Key bridge was designed in an era before these "superships." Some see a challenge, and some suggest a different or more conscious design in its replacement. Admittedly, the bridge was old (1977), built in the days of passing around jokes from print stores.

USA Today aptly concludes that this is an outcome of force in motion (Newton), not of age, maintenance, or design. It concludes "it’s unlikely Baltimore’s bridge stood a chance against the ...Dali despite the quality of its build." That there is discussion of infrastructure is interesting, but it is not an issue. 

Amid the aftermath, many will continue to conjecture, discuss, and perhaps they will place blame. But it is important to reach beyond that and figure out how the recovery will proceed. The shipping channel has to be cleared and the ship traffic restored. While there is disagreement as to the pervasive nature and reach of the economic impact, there will be impact. 

Beyond the impact on shipping, port jobs, and the "ripples" of economic activity that emanate from such an economic engine, there is the local impact. Bridges have been broken before. We had a much less significant event in Paradise a few years ago. No container ship, no dramatic video, But even a small hole in a bridge can render it reasonably useless. And it turns out a lot of people rely on bridges. See If you were Half the Bridge I am (June 2021). 

What can we learn from this event? The primary lesson is that sometimes all skill is in vain. Perhaps there will be some conclusion as to what could have been "different" or "better," but today it appears that reasonable minds and practices combined for a tragic result. People died; that is not to be minimized. Many more could have died though, but the ship was moving reasonably slow, it was staffed with local experts, and when things went wrong a warning was sent. 

In the end, it seems that we might learn a better practice or an improvement. No process is perfect, and the investigation has only just begun. But we should also likely acknowledge that this does not happen every day. Ships enter and leave harbors every day, by the thousands. The practices employed are working in ports everywhere, every day. There are tragedies, but rarely. As they analyze, hopefully, there will be a focus on all the people who did things right, and their heroism. 

Three Shootings - compensability

Three shootings. Three examples. An opportunity to discuss the interaction of "arising out of "and the parallel requirement of "course and scope." Too often, there is confusion between these two distinct tests. The confusion is due in large part to poor appellate analysis and intermingling. The three examples for this conversation today include the instance in New Mexico in which actor and producer Alec Baldwin stands accused. See Workplace Gun Safety (August 2022). Today, I address recent instances in the case law and news.

We begin here in Florida with last August's Normandy Ins. Co. v. Bouayad, 372 So. 3d 671, 674 (Fla. 1st DCA 2023). The injured worker there was "shot seven times" while at work. The shooter was not identified, and the trial judge concluded the shooting did "arise out of" and "awarded benefits." The analysis was largely based on a "situational risk" analysis. The trial judge considered the propensity for violence in a particular neighborhood, and the crime rate generally.

The trial judge "concluded that Bouayad's employment substantially contributed to the risk of an attack and to risks that Bouayad would not normally be exposed to during his nonemployment life." The opinion does not state what the crime rates were in the other areas of town that Bouyad frequented (living, shopping, etc.) and how the rates in those "unemployment life" activities compared to the work site. In all, it was an intriguing analysis.

The appellate court reversed. It explained that "the claimant must 'make a showing of some event or circumstances connected with his work to which his injury can be directly attributed.'” The court acknowledged and explained the "any exertion" standard in single-cause injuries, and concluded "it is unreasonable to suggest that the mundane exertion of walking to get around work can be 'causally connected' with an injury from a shooting."

The appellate court concluded, "Chapter 440 does not cover workplace injuries; it covers work-caused injuries." There must be some demonstrable relationship between the work and the injury. Where Mr. Bouayad failed was in not showing that relationship. He proved he was at work, that work was located in an area with a propensity for issues, but not the causation of injury from work. It is critical that there was no dispute about course and scope (the worker was at work and working), that was conceded.

More recently, Federal Express (FedEx) appealed a conclusion of compensability of a shooting at work in the Commonwealth of Kentucky. Figaroa v. Federal Express, CLAIM NO. 202149967, This arose from a road rage incident, but it occurred in the parking lot of the workers' apartment residence. No one disputed that the individual was an employee, that he was in a company truck, and that he was shot. These are stipulated. But, the employer nominally contested the "arising out of."

The employer asserted the worker was not "at work" at the time, but was in the process of "going and coming." That is a "course and scope" argument. It also asserted that the worker was "on his break" at the time, also "course and scope." The worker was sitting in his employer's vehicle when he was shot. Despite the two "course and scope" defenses, the employer disputed any "a causal connection between any work events and the medical condition that is the subject of the claim." That last one is an "arising out of" argument; that is, the relationship of injury to occupation.

The employer later asserted that the worker "was engaged in horseplay at the time of the incident, and therefore his claim is barred." That argument is one that says, essentially, that the "course and scope" was abandoned, the work abandoned in favor of some distraction. This can happen when an employee deviates so thoroughly from the purpose of work that her or his actions cannot be said to be in furtherance of the employment purpose. In this, the employer alleged that the worker "escalated the confrontation" and thus departed from course and scope.

Many appellate courts have been reluctant to conclude that horseplay is sufficient to break the "course and scope" barrier. Time and again, there have been conclusions that an employer failed to keep labor actively engaged and thus afforded the boredom that precipitated horseplay. Or, that an employer failed to discipline horseplay and thus created some acceptance or acquiescence of such behavior. Those arguments have been strained at times. 

The Figaroa employer's arguments centered on it providing a "one-hour unpaid break each night." Using a digital tool, "drivers logged in and out of breaks." Although the company forbade breaks away from a driver's assigned route, the employer had acquiesced in this worker "go(ing) home for his breaks." After the shooting, the delivery vehicle was photographed parked at the worker's home. The worker had left the vehicle. He was confronted, retreated to the vehicle, and was shot. He had not logged out through his electronic device. 

Though "arising out of" was seemingly only obliquely denied, the ALJ addressed the point. She concluded that the confrontation occurred due to the operation of the delivery van. It was a "road rage" incident, and thus the work of van driving precipitated the altercation. This is distinct from Bouayad in which there was no such work event, confrontation, argument, robbery, or similar described or demonstrated. 

The remainder of the Figeroa analysis addresses the "going and coming" and other "course and scope" arguments, denying each. In these, there was periodic mention of "arising out of," with the employer arguing that "going and coming" is a defense to both of the two: "arising out of" and "course and scope of." While that seems inartful at best, there are numerous appellate interpretations across the country that both mention and even rely on such an interpretation. In short, many courts have mixed the two defenses.

In Figaroa, the employer seemingly makes the inverse argument to Bouayad. In Bouayad, the worker argued positional risk (at work, so must be work). In Figaroa, the employer argued the same doctrine (at home, so must not be work). That "positional risk" did not work in either instance. The location, alone, did not carry the day in either analysis. That is instructive.

The Kentucky Board noted the Figaroa facts "are simple." The worker was doing his job and deviated to return home for an unpaid break. This was a condoned departure from course and scope. In parking, he upset a fellow traveler who confronted, pursued, and shot the worker. The worker had not clocked out, and had not "actually initiated his break." He was, in short, at work, working, and that work precipitated the attack from another. 

The final shooting incident involves actor Alec Baldwin pointing a gun at a coworker, under the apparent mistaken belief that the tool was not loaded. He claims that he did not squeeze the trigger, but there are allegations that the weapon could not have discharged without such a trigger squeeze. The end result is one coworker dead and another significantly wounded.

In this, we see an employee (Baldwin) clearly in the "course and scope." He was rehearsing a scene for a movie, the entire crew was present for that movie making purpose. He pointed the tool as called upon in the script, and somehow that tool discharged. The individuals struck were behind the camera. They were privy to the script and knew the tool would be pointed. They were both also in the "course and scope." There is no fact known at this time that would suggest that the shot was not in the "course and scope."

That said, there may have been failings. Should the employer have somehow shielded the victims behind a barricade? Should the gun have been inspected before it was pointed? Should there have ever been live ammunition on a movie set? Those are all possible arguments about the liability of the employer (which coincidentally may also include Mr. Baldwin as a producer of the movie). But, none of those arguments raise a compensability defense against the individuals shot, should they claim workers' compensation.

The two who were shot were doing their jobs behind the camera. They were not deviating from the "course and scope" in some way or abandoning the purpose of their employment. But did the shooting "arise out of" the employment? That question returns to the presence of live ammunition. Was there ever any arguable need or excuse for the presence of live ammunition? Was the presence of that ammunition beyond the employment, and thus supporting that the shooting arose from criminality or gross neglect rather than the making of a movie?

In that, it is possible that an injured person (or an estate) might seek to avoid the application of workers' compensation. The injured person might strive to prove that the injury should not be constrained by such a system, and thus the employer not protected by exclusive remedy. It surprises many, but sometimes an employee seeks to avoid workers' compensation and seek civil damages instead. The arguments for that, of gross negligence or similar, are likely to focus on the same "course and scope" and "arising out of" analyses. 

It's Jurisdictional

"it's jurisdictional" will never rival "it's electric" (Marcia Griffith, 1976). But what a great song it might make.

A few months back, 1,500 months that is, the Florida Supreme Court explained the operation of Chapter 4528, enacted in 1897. Chamberlin v. Finley, 40 Fla. 91, 23 So. 559 (1898). The point of the law, and the Court's interpretation, is that there would be structure to appellate actions in Florida courts. The Court explained that "the entry of appeal is jurisdictional, and is absolutely indispensable." One cannot appeal a trial decision with silence or subtlety.

From that historical foundation, comes a parade of decisions in which various courts have explained the jurisdictional nature of the "notice of appeal."

Perhaps the first such explanation in the wide, wide, world of workers' compensation occurred a few days back, 28,600 days back that is, in City of Miami v. Saco, 24 So. 2d 115 (1945). There, the Court explained that workers' compensation is a statutory creation. The statute provides for adjudication by a state agency, and any entitlement to appeal the decision of such an agency "exists solely by virtue of the statutes creating and defining the powers of this state agency."

There is, in this, clarity. The answers to many questions, it seems, are there in the statute for anyone to read. Section 440.25(5)(a) notes that:

"Procedures with respect to appeals from orders of judges of compensation claims shall be governed by rules adopted by the Supreme Court. Such an order shall become final 30 days after mailing of copies of such order to the parties, unless appealed pursuant to such rules."

There are those who would read that and immediately believe that there is a stringent deadline of 30 days. The language seems reasonably certain and conclusory. That said, the history of Florida workers' compensation is littered with a multitude of appellate decisions that dodged, deflected, or ignored various deadlines imposed by the legislature. There are some who feel the appellate court's record on the subject of deadlines begs explanation. Others strive to explain those deflections academically with little success. 

Returning to Saco, however, the Florida Supreme Court noted that there was no "right of review or appeal by the courts" by any "constitutional right." Instead, "such right of review...is a statutory privilege." Thus, it "is subject to the limitations, conditions, and restrictions imposed by the statutes which define and create the privilege." 

That 30 days, at least under the parade of analyses, appears to be "jurisdictional." The parade includes such intriguing analyses as Thompson v. Park Place of Venice, Inc., 888 So. 2d 47 (Fla. 1st DCA 2003) and Troche v. BJ's Wholesale Club, Inc., 954 So. 2d 685 (Fla. 1st DCA 2007). These each illustrate and explain the 30 days. Troche is particularly good reading.

 

Some might argue that how absolute the 30 days is depends on the appellate court panel that is charged with a particular review or appeal. Certainly, a panel might return to the statute and defer on those prior court decisions. But, at least for the present, that 30-day deadline seems singularly important and likely absolute. When a "final adjudication" is made, a "final" order is entered, an aggrieved party may seek review. But, that must be instigated within 30 days of the order being sent. 

This is a matter of statutory law (above), but for good measure, the Supreme Court has provided Rules of Appellate Procedure, which echo the "30 days," in addressing "commencement":

"Jurisdiction of the court shall be invoked by filing a notice of appeal with the lower tribunal within 30 days of the date the lower tribunal sends to the parties the order to be reviewed either by mail or by electronic means approved by the deputy chief judge, which date shall be the date of rendition." Rule of Appellate Procedure 9.180(b)(3).

One might quibble with whether the Rule has any necessity or meaning in a statutory system. But, as the two formulae are seemingly congruent, 30 days is the apparent deadline. That is from the date the trial judge mails or transmits the order. It matters not when the parties receive it. It matters only when it was sent. 

Of interest, though, the rule is not afforded strict enforcement in other regards. The Court's rule says "with the lower tribunal," but the appellate court has concluded that language is meaningless and a notice is effective whether filed with the lower tribunal or with the appellate court directly. Dayan v. H.I. Dev./Holiday Inn, 710 So. 2d 187, 188 (Fla. 1st DCA 1998). Part of the rule is absolute, other parts are relative.

The time for a party to consider the efficacy of an appeal is immediately. The deadline is short. In many instances parties might be well-served to discuss and consider appellate process in a "what if" approach even before the trial order is entered. This is particularly true if the party will be paying the costs of a record, appellate filing costs, and attorney fees. Appeals can be expensive. That said, when an appeal has not been contemplated before trial, it should be an immediate discussion after. Time is short, and 30 days is not as extensive as it might sound.

The good news is that a notice of appeal can now be filed without printers, envelopes, post offices, trucks, and such. The notice can be electronically filed. The filing fee can be easily transferred electronically. The process is simpler than it was twenty years ago. Of note here, the filing fee is not. Williams v. State, 324 So. 2d 74, 77 (Fla. 1975). Perhaps that is because there is no fee mentioned in the statute? Or because a party might instead seek relief from that fee on the grounds of indigency?

Despite this, we continue to see tardy notices of appeal. Some delay because a Motion for Rehearing was filed. Some confuse civil practice and procedure with the Chapter 60Q rules, which in 60Q6.122(3) provide:

(3) A motion for re-hearing does not toll the time within which an order becomes final or an appeal may be filed.

Thus, the clock is ticking. If the 30-day deadline looms, one cannot be distracted by a lingering Motion for Rehearing. And, if a motion for rehearing is denied, the time to file an appeal still runs from the mailing of the trial order that the judge entered (not from the denial of rehearing).

It may be particularly difficult to explain this to a client. The lawyer filing the notice of appeal has signaled, reasonably clearly, a significant belief of error by the trial tribunal. By doing so late, the lawyer has failed to protect the client's interest in having that error reviewed. Some would suggest that when the dismissal is received from the appellate court it is time to notify the malpractice carrier and client. 

Marcia Griffith might sing:

"You can't see it

It's jurisdictional!
You gotta feel it
It's jurisdictional!
Ooooh, it's shocking
It's jurisdictional!"

Potential Energy

The striking characteristic of the Worker’s Compensation community has persistently been involvement and engagement. I am, perhaps, spoiled by my long association with so many in the space. When I encounter lawyers and judges engaged in other practices, I am often struck by their expressions of both surprise and admiration regarding the close-knit community that is Worker’s Compensation. I sense it is widespread, but Florida is a significant example. 

In fairness, one might admit that as good as it is, it’s not what it once was. There has been some retreat from engagement, driven by technology and then SARS-CoV02. There is an increasingly pervasive portion of the practice that finds isolation and virtuality, are meritorious and preferable. Many of those are the younger, the "next," generation. As a persistent introvert, I must admit some admiration for their mindset.

But this market is notably gregarious. That was illustrated again recently in two regards.

The College of Worker’s Compensation lawyers gathered for their annual induction dinner in Chicago, Illinois. Despite the somewhat troubled nature of that municipality and its citizens, there were no safety issues I have heard of. The College is open to any lawyer practicing in worker’s compensation with significant involvement in Worker’s Compensation for two decades.

The class of 2024 included Floridians: Honorable Eric Grindal, Honorable Margaret Kerr, and Honorable Daniel Lewis. There are a great many of the Fellows from Florida. The influence of this community on the larger whole is apparent and understandable. 

The College also inducted a "Legend" in 2024. Alongside Theodore Roosevelt, Crystal Eastman, and Francis Perkins now stands a 17th-century pirate with a legacy of violence and mayhem (but, in fairness, he had a compensation system that shares characteristics with modern workers' compensation). That said, perhaps a pirate with no connection to America or to workers' compensation is not someone to be exalted and honored.

The College is approaching its 20th anniversary and has inducted hundreds of lawyers. That is worthy of note. Imagine a lawyer, just entering the worker’s compensation practice in the inaugural College year will soon be eligible for induction into the organization. That is a notable history. 

The College's purpose is an accolade and honor for its members. It unfortunately does little beyond hosting this annual dinner for new members. A handful of existing members will travel to those dinners, but with transportation, hotel, and the meal it is an expense of about $1,000. That is not for the masses and signals a somewhat elitist perspective. But, it is certainly an honor for Fellows to be recognized by their peers.

The College is an organization of great wealth in experience, gravitas, and personality. It has great potential, which may one day awaken to realize its destiny. There are many talented and knowledgeable fellows, significant financial resources, and ambition. But, for now, it is not what it could be. 

The Monday after, March 18, 2024, the students in the Pre-law Club of the Florida State University, Panama City campus, gathered for one of his periodic meetings. In 2022, Judge John Moneyham happened upon the idea of a pre-law club in an innocuous conversation with Community members otherwise engaged at FSU. There was an instant realization that students attend that college with an interest in pursuing a legal degree. Despite a vibrant Panama City, legal community, no thought had ever been given to such a group.

In this, kudos to Judge Moneyham for his effort, along with the pre-law faculty, and administration. The resulting pre-law club meets monthly to discuss member's interests, aspirations, and perceptions. Judge Mooneyham has been simply fantastic in his engagement and motivation of these young people. In a significant manner, this outreach is striving to raise awareness, instill motivation, and build appreciation for the workers' compensation practice.

The student group gathered Monday to hear from a Florida Supreme Court Justice. From the pictures I received, none wore formal attire. There was no 5-course meal. There was less glad-handing and more community. They spoke of the law, their plans, dreams, and futures. Their focus was broad, and their spirits admirable. Their desire to engage and be involved in doing, making, and growing is inspiring. 

The dichotomy is palpable. In one, there is self-congratulation and camaraderie, draped in pomp and buried in circumstance. The other has no budget and only the enthusiasm of youth as a resource. The communities are distinct. One is yesterday celebrating success, celebrating itself. The other is tomorrow, celebrating ambition, potential, ideals, and promise. One wonders what the ambitious and motivated might accomplish with the $100,000+ spent traveling to Chicago and attending the black-tie dinner (150 attendees, $750 for airfare, hotel, dinner, and even tuxedos - conservatively - $200,000 is more likely). 

How many young people might benefit from a scholarship, internship, or fellowship in workers' compensation? How many such benefits might be bestowed with $100,000? How many Fellows might visit a college campus, conference, or convention with such funding? How many of tomorrow's leaders might be reached with such funding? 

Each of these examples illustrates the potential for in-person engagement in the worker’s compensation space. Each helps us visualize that there are untapped opportunities for bridging that seemingly persistent gap in our modern-day worker’s compensation community. One (the College) is hundreds strong, financially wealthy, and extremely diverse (geographically, gender, and race. The pre-law club at Panama City is nascent, aspirational, and transient (all students soon move on to other professional pursuits).

Physicists discuss impacts using adjectives. They say "An object can store energy as the result of its position." In this way, such objects have "potential" energy that becomes actual when released. That can be an involved discussion, but imagine a bow with an arrow. The bow sitting on the ground has no "potential energy." When the string is pulled back, that "position" that has taken movement (your arm) to store the energy will be expressed sending the arrow forth (actual). 

The "position" is not geography but the actuality of posture. Energy is “potential“ when it is in some way stored, trapped, or inhibited. This is true with the drawn bow, and with items of significant gravity that are at an altitude. A boulder in your front yard may be visually appealing, but without Newton's help, it will merely sit there and be pretty. The "unbalanced force" that might move it is undefined.  

The energy can nonetheless be appreciated, if not necessarily readily observed. Given the right circumstances, and provided with a stimulus of some kind, potential energy can be converted into active energy. If the stimulus is something like gravity, then altitude (the magnitude) of force can be magnified. Push that boulder off the crest of the hill in your yard, and it might gain the momentum to destroy your mailbox. Push it from the top of Mt. Everest, and it might gain comrades on the trip down and destroy a village. 

Altitude matters. Magnitude matters. What will we do with our great power? Well, we could get together for a dinner.

The potential and process is illustrated in the two recent in-person gatherings. Each has potential energy to even the casual observer. Each may be looked to for impact and influence. Each could change its community or more. Perhaps that is harder for the little student group on the hill in the front yard, and so much easier for those boulders who already have great altitude, resources, and prestige. But, either could make an impact. 

Understanding that the worker’s compensation community is replete with similar potential energy examples, the question for you, is, what will you do to release it? Or, if action is not your forte, what might you do to support the storing and development of it? Will you encourage, mentor, write, speak, or sit in your corner and complain?

I will fly to South Florida next week. We have Meet and Greets scheduled in Miami and West Palm Beach. I will be at the Forum in April (Orlando). I will continue to take to the podcast, the blogosphere, and the stage to recognize those striving to make a difference. This community is broad and deep. The opportunity is there for the taking. Will I see you there?

Ubiquitous Cameras and Implications

I have posted many times regarding the ubiquity of surveillance cameras. Those devices are everywhere and more are being sold and installed every day. Some estimate that there are close to 100 million security cameras in the U.S. There are only 335 million of us here, and so the cameras are catching up. And, there are an estimated 310 million smartphone users in the U.S. That is a lot of cameras.

See Surveillance, Conflicting Rights, and Balance (May 2021).

For whatever reason, I recently found myself on Twitter and a video came up regarding an alleged incident that resulted in a popular video on another social media platform. The popular video involved a nice lady who had an upsetting experience at a business and she took to social media to complain of being assaulted, manhandled, and abused. Apparently, the video in which she describes these offenses in detail made an impression and generated sharing.

The business, however, had some of those surveillance cameras on their premises. Soon, apparently, the business published its own video. The theme was to run the complainant's original video and complaints next to the alleged real-time video of her departure from the business. To be clear, it is difficult to judge the authenticity of either side of the story. But, it is fair to say that what has been portrayed may present a very divergent "two sides to every story.")

You can view the side-by-side here: https://www.tiktok.com/@hubbardinnchicago/video/7345947161005133102

Or here: https://www.reddit.com/r/chicago/comments/1bes198/hubbard_inn_responds_to_tiktokers_allegation_of/

Some outlets have reported that "the accuser has shut down all of her socials and gone dark online," since that side-by-side was published. Others have questioned why the accuser has not refuted or contested the response video with the purported video evidence that may contradict her original accusations. One of the posters on Twitter has questioned, somewhat colorfully, whether something has gone wrong with our world?

Commenters also make allegations and accusations against the original poster. Some are strongly worded. Others note their interpretations of the videos, the outfits worn by those portrayed, and the absolute control that the business has over the video. Those are issues of credibility, authentication, and the weight afforded to evidence. All of those are litigator concerns in each and every context. Video is potentially helpful and yet potentially challenging. 

Believe it or not, I soon began seeing more video examples appear in my Twitter feed. Is it not amazing that these things seem to coincidentally come in groups? Or, is it possible that Twitter is studying me covertly and directing my attention next to things similar to what I viewed last? Preposterous, huh?

The next video that came up purports to depict a confrontation on a New York subway that ended with gunshots. The NY Times reported on the situation. And it is fair to say that is a developing investigation. The press expressed uncertainty as to whether criminal charges will result against either of the individuals. There seems to be some reluctance in the press regarding who is the aggressor and who is the victim.

However, believe it or not, there is purported video of the event. However, I noted this looks more like smart phone video. https://twitter.com/i/status/1768599451025756530.

It is likely that videos like this will be viewed and reviewed repeatedly in days to come. The natural question might be why the subway cars do not have security cameras. That is being considered also and NY News 1 reports that there are plans to significantly increase the 400 cameras currently on that train system (665 miles of track). The News 1 story says the planned cameras are a response to a "rise in assaults" that persists despite "upwards of over a thousand additional cops deployed in uniform each day in the New York City subway system." That is intriguing. The cost of 1,000 extra police seems significant and ongoing, but cameras are a challenge?

These stories remind us that cameras can be engaged in daily life. They may record us without our knowledge. They may reflect our recollections of events, or perhaps refute them. They seem omnipresent, and they are multiplying. There is every reason to believe that video may find its way into litigation, whether it supports someone's complaint against another or refutes recollections and explanations.

As to the initial video example, some will wonder if the business or employees might pursue defamation actions against the original poster. Or, if the "different outfits" are persuasive whether the original poster might file such a suit. The subway video may be relevant in determining criminal charges, or be involved in a civil suit by someone alleging injury. And as those situations are worked through, more cameras will be put into service. 

In 2015, among my early blogs, I noted Rockwell's perceptions, see Assume Everyone is Watching (September 2015). I would reiterate it here and suggest that knowledge of authentication, privacy rights, and digital record keeping may all be valid issues for study by attorneys. The litigation practice seems destined to continue its path into video relevance and prominence.

Artificial Extinction?

The news very recently reported regarding a United States State Department Commission study on artificial intelligence. The results reportedly include some quite dire predictions. Reading the report I was reminded of a quote from the 1980s classic Ghostbusters, discussing the safe use of their technology:

"Spengler: It would be bad.

Venkman: I'm fuzzy on the whole good/bad thing. What do you mean, "bad"?

Spengler: Try to imagine all life as you know it stopping instantaneously and every molecule in your body exploding at the speed of light.

Venkman: Right. That's bad. Okay. All right. Important safety tip. Thanks, Egon."

Ok, so this AI thing could be "bad." We got that part. 

I was fortunate, in my youth, to engage in some philosophical conversations with individuals of great intellect. One I recall, was fascinated and engaged by the demise of the dinosaurs. Left to his own devices, this individual’s thoughts and conversation would often turn to the theories of the great extinction. He enjoyed propounding his perspectives on “extinction events.“

One of his perceptions, often voiced, was the unpredictability of cataclysmic environmental events. He was a subscriber to the meteor theory of dinosaur extinction. I can recall him several times uttering the phrase “they never knew what hit them,“ and similar observations, such as "there’s no way they could’ve seen it coming.”

I recall, biting my tongue. All my petit brain could muster was, essentially, “Yeah dinosaurs didn't have telescopes." To me, the observation of unpredicted, or unprepared, seemed axiomatic and irrelevant there. Whether their demise was cataclysmic or evolutionary, they no more saw it coming than they mapped the dinosaur genome, built self-driving dino-vehicles, or put a dinosaur on the moon. That is flippant, and a bit sarcastic, apologies. That said, I see little relevance in discussing our future with reverence or reference to the demise of dinosaurs. The parallels escape me.

That said, there are some noted in the State Department report that believe the human race may be headed for a similarly cataclysmic "extinction" event. No, not a meteor, but an extinction nonetheless. The fears do not seem centered upon computers impersonating Tom Hanks, inappropriate, or malignant photographs (see Deep Fakes in Florida, March 2024), or even disproportionate, or discriminatory, censorship of viewpoints and perspectives (yes, there is some evidence that some platforms compress or exalt various viewpoints).

The significant fears in the State Department report are two-fold. First is the potential that miscreant humans will engage AI in a weapon "heist" form, and thus use the appropriated weapons in a manner that will disable and disrupt the very underpinnings of our societal existence. This is a hacker fear, and in fairness, there have been some intriguing instances in which miscreants used technology against those who created it. As I read the report, I wondered how this "theft of AI" threat is more potentially destructive than nuclear weapon theft?

The second seemingly popular threat is that artificial intelligence will become sentient, and, without the help of miscreants it will itself engage in destructive behavior. This might be through the intent of its designers, the inadvertence of programmers, or other accidents.

As I read, I wondered aloud: "Is this War Games (MGM 1983) or Terminator (Orion 1984)?"

Unfortunately, the human race seems inclined to sloth. Increasingly, the benefits and virtues of hard work dedication and focus have become punchlines rather than goals. Young people are increasingly drawn to the virtual world, with its great benefits, friendship proxies, and unfortunate risks. Societally, humans of the most ardent, independence and liberty seem repeatedly inclined to yield their inherent God-given rights (“endowed by their Creator”) to the government in exchange for security, or protection. They seem as eager to yield to social media for convenience, collectivity, and acceptance.

Why my mind is drawn toward Hollywood in these regards, I cannot explain. But, I wonder if we are creeping toward the ruined world portrayed in Wall-E (Pixar 2008). In that classic, the good folks have deteriorated into a codependent technology relationship that is clearly and humorously toxic. They persist in pointless lives serving computers that serve them. The humans had become obese, ignorant, and, frankly, irrelevant to themselves and others. There is symbiosis, social decline, and despite the movie's humor, it is quite depressing.

Maybe, just maybe, some solutions lie in our continued intellectual development, evolution as humans, and engagement in our lives?

The good news is that government is going to solve all this. We must remember that more government and laws is always the answer (sarcasm). Try to remember Ronald Reagan's point

“If more government is the answer, then it was a really stupid question.”

With the Gipper in mind, let's delve into the State Department Report (executive summary is available on the internet -below). To view the whole report, you have to request it. The information overlords say that the price for this knowledge is that the government must know that you asked for and received it. Um, well, ok. Let's face it, the government can presently know virtually anything about you anyway.

(https://assets-global.website-files.com/62c4cf7322be8ea59c904399/65e7779f72417554f7958260_Gladstone%20Action%20Plan%20Executive%20Summary.pdf)

Here are the five main points that the experts recommend in order to address the Extinction Level threat that we face (in their perspective):

1. Establish interim safeguards to stabilize advanced AI development
2. Strengthen capability and capacity for advanced AI preparedness and response
3. Increase national investment in technical AI safety research and standards development
4. Formalize safeguards for responsible AI development and adoption by establishing an AI regulatory agency and legal liability framework
5. Enshrine AI safeguards in international law and secure the AI supply chain

Some will shudder at the use of "enshrine" ("cherish or sacred") and International Law. The world has witnessed a parade of challenges with international law, and there are failures here, there, and everywhere. Successes? Certainly, there are successes. But we must know in our hearts that International law is no panacea or be-all. The UN response to any variety of world threats might cause skepticism. Or, the impotence of the World Court's dependence upon the Security Council (with full veto power in the hands of various nations) may give pause.

But to the substance. The recommendations are essentially (1) we need emergency rules right now, to regulate the what, who, and how of AI; (2) we build defenses against AI (and the miscreants perhaps) and decide how and when we will deploy them; (3) we spend more money (your money) in studies and rules; (4) we work out more, build muscles, and thus ready ourselves for the assault and our response; (5) we invest faith and hope in the international community, United Nations, treaties, and World Court.

In the end, the solution proposed by the government is seemingly more government. Is it possible that there are existing laws and tools in place that regulate activity? Will there be consideration regarding the prosecution of those who commit mayhem with hammers, or will the focus remain squarely on examining and defining what a hammer is or could be? Will we focus on the fact that there is now a larger hammer?

In the end, is it of any concern to anyone that number one on the Report's list is not "evaluation and implementation of current laws as regards the use or misuse of AI and other technology?" If someone builds a bigger hammer, shall we jump to a new "bigger hammer" law or might we consider that hitting someone with a hammer is already a law and that the size of the hammer is largely irrelevant?

Gender Evolution

It was recently International Women's Day (March 8). In the sometimes vacuous and disturbing world of social media, there are positive moments. One example is that I learned it was International Women's Day. Not through the news, but through social media, I was informed. That ability to pass information is a critical benefit of the medium. Granted, there are plenty of countervailing challenges with those platforms, but some opportunities for greater knowledge.

There was a series of posts in which various women lawyers expressed moments of discomfiture or disappointment based upon the boorish (or worse) behavior of males. I was admittedly surprised. In my world, I do not witness discriminatory behavior in the practice of law, the legal education system, or the workers' compensation community. But, the complaints and anecdotes made me think.

I checked some figures on gender in the legal profession. According to the American Bar Association (a voluntary trade group to which some lawyers belong), less than 40% of the lawyers in this country are female. It notes that the participation is increasing. There have been incremental increases in female participation in this profession.

Another ABA report says that the population of American lawyers is around 1.3 million. That equates to about 780,000 male attorneys and 520,000 female attorneys and a current difference of 260,000. If law schools maintain a graduation rate of 50/50%, it will take a notable time before the practicing population is 50%/50. A more rapid path to that parity comes only if the graduating female students markedly exceed the males.

Men have been, and remain, the majority of legal practitioners. That means that there is a majority/minority relationship in that marketplace. Despite that, there have been some notable achievements in the last 100 years or so. The fact is that one can identify many "firsts" in that period: the first female lawyer, judge, appellate judge, etc. The first ABA report above noted "From 1950 to 1970, only 3%" of lawyers were women.

Statistically, Women are at a slight advantage. They make up 50.4% of the U.S. population, according to the census. And law school admissions are certainly trending to the benefit of women also. According to Jurist, there have been more female law students than male for the last eight years. Thus, we are on a path to parity, to erasing that 260,000 disparity. But, gaining a small percentage each year will draw the division to equality very slowly.

And, any gains in graduation and bar admission will move toward parity in the profession. There could nonetheless remain disparity if the practice of law. Some note that there are challenges in retaining female attorneys. The practice is challenging in any regard, ask any lawyer. However, there is at least some perception that the practice faces particular retention challenges with women.

The recent social media discussion noted examples of inappropriate comments to female attorneys. There was mention of judges referring to counsel as "little lady" and perceptions of disparate treatment both by the bench and male lawyers alike. There was a story recounted in which a jurist made demeaning comments to a law firm partner about a young female associate. The statement was loaded with both invective and innuendo.

I have witnessed poor behavior, and to some extent striven to address it. One example that sticks in my mind involved a curmudgeon trying a case against a bright, young, female attorney. Throughout the process of marking exhibits and working through objections, the curmudgeon insisted on referring to the female attorney by first name.

That may seem like a small thing, but there is dignity in expressions. In hearings, we refer to professionals appropriately. That means last names for lawyers. That means titles such as "doctor" are appropriate when addressing participants regardless of their gender.

In the case of the curmudgeon, I was disinclined to intervene. I recall wondering whether intervention on my part would somehow be perceived as taking sides from the bench or signaling a perception that the young lawyer needed assistance (I admired her tenacity and to this day I doubt she needed any help). Was I troubled by the first name out of a sense of decorum or chivalry? I had self-doubt about my course and my role. Thus, I did not address it immediately.

But after several iterations, I corrected the curmudgeon. Not abrasively or curtly, just a simple "we address each other by last name in this room." One would think that with intelligent people, such a reminder would be sufficient. However, that day I would repeat that sentence several times. I wondered thereafter whether the curmudgeon was simply suffering from senility or was intentionally returning to the first name references as a method or plan.

At the end of the day, I am glad that social media alerted me to the fact that there remain curmudgeons in the practice of law. Despite judicial perceptions (I suspect that judges witness lawyer's "best behavior" more often than not), there seems a significant body of evidence that boorish and worse behavior remains in the practice of law. According to some on social media, they perceive judges to be the source of boorish behavior. That is more disturbing still. 

Some contend that there are various examples in which challenges and hurdles are more pronounced for certain women, with specific references focused on race, age, and more. We all likely want to believe that people are generally appropriate and that they do not strive to be hurtful, inappropriate, or worse. That said, I fear that there is at least a perception of some groups that there remains mistreatment, disrespect, and worse.

As with many challenges in society, there is perhaps a variety of approaches to remediation. I would suggest that the best first step would be our collective and unanimous realization that bad behavior is a potential in every interaction. There may be offense, whether intended or incidental. In every conversation, you have no control over how you are perceived. And you have no idea what kind of a day your listener is having.

As we progress (yes, age) perhaps we can each start with the premise that what we say may matter. Perhaps we should all be less concerned about whether we might offend with our intervention in standing up to curmudgeons. Instead, we should speak up when we encounter curmudgeons and be clear in our collective and individual insistence that professionals are treated professionally.

When someone does react or intervene, we aging citizens need to be particularly aware, and reactive. We have to ask ourselves, "am I becoming that curmudgeon?" Our futures require nothing less. 

Deep Fakes in Florida

The topic of "deep fakes" is back in the news recently, right here in Florida. Readers will remember that "deep fakes" have been in the news. The term refers to any time something is forged, whether it be someone's voice, image, etc. There have been newsworthy instances of See AI is a Tool (October 2023). that post introduced some youngsters in a "sleepy little town in Spain." They were accused of creating photos of their classmates using a computer, lurid photos, and sharing them online.

I noted there that the Spanish instances were not someone's face pasted onto another's body. That technology has apparently been a thing since the advent of computer images and various programs capable of manipulating them. No, these were created by AI, with the computer apparently analyzing clothed individuals and hypothesizing about how they might appear unclothed. A critical point, however, is that they were real people. Critical point two is that they were shared online.

That story had multiple levels of intrigue and trouble. First, cyberbullying (and bullying) can be accomplished without such tools. Anyone can be belittled, threatened, minimized, or worse either in person or online. The only difference between cyberbullying and in-person bullying is perhaps the imminent potential for physicality in person. Bullying is present on the internet, in the schoolyard, and in the workplace.

See Bullying is in the News, is it in the Workplace (November 2013); Aggressive without Being Obnoxious (August 2019); A Miserable Example (February 2022). Bullying can come in many forms, from almost any source.

The perception seems to be that bullying is increasing, at least online. Mental health experts contend that bullying is foundational to various challenges to mental health. The McGovern School of Medicine informs:

"Bullying can cause feelings of rejection, exclusion, isolation, low self-esteem, and some individuals can develop depression and anxiety as a result."

The news from Florida is from Wired. It reports that two middle school south-Florida gentlemen, "aged 13 and 14," have been arrested for "alleged sharing of AI-generated nude images." These are felony charges, and thus the newsworthiness of the story. There is also attention drawn by novelty here, in the fact that the law allegedly violated was only passed in 2022. It appears these two young gentlemen are the first ever charged under its authority.

Of course, anything AI is newsworthy. But this appears to be a more "cut and paste" effort of putting images of people's faces onto images of other people's torsos. The implication is that this is similar to more familiar Photoshop manipulation but with the help of AI. Unfortunately, the alleged incident is not unique. The story reports there have reportedly been similar news stories in Washington, California, and New Jersey. But, there have apparently been no arrests until now.

The South Florida gentlemen were identified in early December and arrested days before Christmas. The story recounts that a school administrator who learned of the allegations "interviewed the victims depicted in" the photos, and learned "they did not consent to the images being created." That seems, at first glance, to be a curious inquiry.

The images were allegedly of middle school students. One might instantly leap to the fact that those people are 12 to 14 years old, and incapable of consent in its basic sense. To what end would consent be of any import? But then one progresses to considering that the unclothed torso photographs were not of minors, only the faces that were affixed to them. In the strictest sense, perhaps the photos could be viewed as only partially of youth. 

In that, there is the potential that a court might conclude that such photographs are not actionable under various other laws. And that is where the 2022 law under which the South Florida gentlemen are charged becomes critical. That was CS/CS/SB 1798 (readers will recall that such a name means there were two "committee substitutes" (CS) for the original bill as that Senate Bill (SB) progressed to passage). This illustrates that there was likely spirited debate and various significant amendments as the law was considered and passed.

It created section 836.13, Fla.Stat. which provides for felony punishment:

"(2) A person who willfully and maliciously promotes any altered sexual depiction of an identifiable person, without the consent of the identifiable person, and who knows or reasonably should have known that such visual depiction was an altered sexual depiction, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084."

And thus, the rationale for exploring consent becomes obvious. The statute specifically requires that any actionable event would be "without the consent," and that the individual victimized must be an "identifiable person."

The law specifically defines what "altered sexual depiction" means:

"(1)(a) “Altered sexual depiction” means any visual depiction that, as a result of any type of digital, electronic, mechanical, or other modification, alteration, or adaptation, depicts a realistic version of an identifiable person:

1. With the nude body parts of another person as the nude body parts of the identifiable person;

2. With computer-generated nude body parts as the nude body parts of the identifiable person; or

3. Engaging in sexual conduct as defined in s. 847.001 in which the identifiable person did not engage."

There are a variety of other definitions and descriptions in the statute. Notably, this is not an "AI statute." The prohibitions are focused on "any type," and broadly address the cut-and-paste ("mechanical") to the Photoshop ("digital"), and beyond ("other modification"). It is a seemingly all-encompassing prohibition. While it addresses "cut and paste" in the present instance, one can readily see it applied as easily to efforts such as the Spanish example above. The statute is a worthwhile effort to prevent the bullying of people young and old. The scope is broad.

This is noteworthy because our focus must remain on the fact that AI is a Tool. There is too much inclination today to focus upon what AI can do, and how humans may misuse it. Legislation could be brought to bear on AI, on the tool. 

But, as this statute and the purported prosecution of the South Florida gentlemen illustrate, the law can address action (or inaction) in a broad sense. The potential use of the tool can be addressed in the law as part of a broader affront to a problem or challenge, regardless of whether AI or scissors and paste are the tools used. In this, we see again that AI is not the threat. The behavior is the threat. AI is merely a means to the end.

For the young gentlemen in this instance, there are likely difficult times ahead. Wired reports that the "parents of the victims" are "publicly urging the school to expel the boys." That may sound to some like a bit of an affront to the "innocent until proven guilty" to which we have so long adhered. That said, the press has long been a court in which trials have occurred without any of the formalities or protections of such vaunted concepts as due process, equal protection, or assistance of counsel. That is a topic for another day.

The charges under this statute could lead to conviction of "a felony of the third degree." That is significant. As Wired notes, this is the same potential punishment that one might face for crimes like "grand theft auto or false imprisonment." It is fair to say that section 836.13, Fla.Stat. reflects a dim view of the creation and promotion of these fakes.

It reflects that such photographs represent an affront to those depicted, a victimization. There is at least an implied admission that such depiction presents harm, which is consistent with the consensus of the emotional affront and potential for depression, anxiety, and more from such attacks. In the broadest sense, society's primary goal has to be the protection of youth. They are, after all, our future. This statute seemingly contributes to that protection, but while it includes youth it protects more. 

The prosecution or other conclusion of these allegations in South Florida will be newsworthy. The application of this statute will not change AI or Photoshop. Perhaps, however, it will change the inclinations of humans who utilize such tools? And in the process, perhaps it will prevent untoward and unconscionable bullying of students, coworkers, and people generally.