Thursday, October 31, 2024

Remembering and Persevering

Overdose and senseless death have been a topic woven through this blog over the past 11 years. I have spent a great deal of time striving to understand the why and what of drug use, overdose, and governmental efforts to stem both. There are a great many people dead. In Nitazenes are Worse (June 2024), I noted that our national overdose deaths are now greater than the loss of American lives in all wars since this nation began as a small conglomerate of former colonies clustered along the Atlantic coast.

More Americans have died of drug overdose than in all wars. That is a disturbing and sobering fact. At the current rates, it will not be so long before we can say that twice as many have died of overdose. What will be enough?

I have attempted to provide a list of all of my overdose musings at the end of this post. Compiling that brought back many memories of reading and writing about senseless death and suffering. It reinforces that there have been efforts to control opioid distribution and misuse. 

As I reflect upon it, however, there were few who overdosed who were inadvertently or accidentally exposed to drugs. The vast majority instead began a path through voluntary use of substances that were forbidden completely (street drugs) or at least regulated (prescriptions). They evolved into increased frequency or dose and often were misled into taking things they never suspected.

A great many of those who died were facilitated or even misled by the very people who should have protected them. Too many physicians have been implicated over the years in pill mills, inattention, and inadvertence. 

There are undoubtedly those who have no concern about the victims, participants, and users. WEARTV in Paradise recently reported on the arrest of a physician who prescribed a great many pain pills. The doctor, whose profession is to heal and ameliorate, is accused of "prescribe(ing) more than 400,000 oxycodone pills over a three-and-a-half year timespan." 

These are allegations, and everyone is innocent until proven guilty. In addition to allegations regarding those prescriptions and medical practice lapses, this physician will face charges of murdering two people. Two people whose names are on that list of overdose deaths discussed in Nitazenes are Worse (June 2024).

That is a tough story. It is only more compelling because it happened close to home. That is a perspective issue that is worth everyone's consideration. This is happening close to home for everyone reading this. Overdose is not a "there" problem, it is an everywhere problem. 

Drug use, overuse, and death touches every community, every life, and everyone. It is unlikely that you do not at least know someone who has been directly touched by this scourge. There is no "six degrees" of separation from this pandemic. See Six Degrees of COVID-19 (April 2020). You may know someone who overdosed, but it is likely you know someone who knows someone who overdosed. If there is a separation, it is likely far less than six degrees.

There has been some progress. The rate of overdose in some demographics has decreased. However, recent reports are that Overdose deaths are rising among Black and Indigenous Americans. It is suggested by some in the press that overdose "rates for Black and Native people quickly surpassed white rates and continued to grow as white rates declined between 2021 and 2023."

There is room here to question why. If it is possible to stem the tide of this chemical tsunami in any locale or demographic, why is the effect of the efforts not uniform, or at least more uniform? There is supposition about how groups may choose to "navigate(e) . . . institutions." 

There is allegation that those providing relief or release are in fact "white-dominated institutions." There is a suggestion that overdose death is thus somehow systemically enabled or condoned in some racial paradigm. Without using the terms, there is a suggestion of privilege, racism, and more. 

While there is no suggestion that drugs are racist, there seems some suggestion that there is a disparity in the access to care, treatment, and recovery. There is likely merit in considering how, where, and why people are likely to seek assistance with their substance challenges. 

Some advocate for programs and responses on a racial level. They seek substance abuse "services ... specifically designed for the Black community." In this, there is some suggestion that communities are different based on race. That will perhaps be facially troubling to some. A great deal has been said over the years about avoiding categorizing people. 

The sources quoted in the Overdose Deaths seem to suggest that some demographic groups are reluctant to seek services. One contends that "A lot of our people don’t access services if they’re not right there in their path.” That contention is leading to increased outreach interaction. Professionals are penetrating communities with "mobile programs" to take the fight to the user instead of waiting for the user to seek help.

That approach is not race-based. That approach is logical and focused on getting resources and reactions to the problem. 

The death trends are not at all comforting. The existence of disparate impact in any health function is troubling. There has to be some consideration of the merits of providing care and treatment to communities that face needs and consequences. Nonetheless, there are historical examples of troubling outcomes stemming from good intentions. See Race-Based Medicine (August 2021) and Hippocrates, Harm, Racism (May 2022). Those past actions should remain cautions in planning any response or reaction. 

The bottom line remains that too many are dying of this pandemic. It has been in our midst for decades, and the gallant efforts of so many are only beginning to stem the tide. The impact of drugs is demonstrable on American society and more so on specific elements and demographics. The societal acceptance of drug use is seemingly increasing, as is the smorgasbord of substances available.

With an eye toward any structural or functional inhibitions, the time is ripe to evaluate the efforts directed at inappropriate drug use. There is merit in considering better methods of community engagement and penetration. 

This post is titled Remembering and Persevering. That is a recognition that the plethora of news coverage, tragic outcomes, and reminders over the last decade have not stopped the deaths. There is merit in our remembering those who have passed, There is benefit in remembering those who might still be able to escape the threat that these substances pose. 

Prior Overdose-relate Posts
Dying to me don't sound like all that much fun (October 2013)
Hey, got an Auto-Injector I Could Use? (July 2014)
We are on Notice (September 2015)
Opioid Guidelines from CDC - FINALLY! (March 2016)
A Florida Formulary? (December 2016)
Is Pain Surmountable? (December 2018)
Opioids 2019 (July 2019)
Contemptuous? (October 2021)
Drugs and Overdose (January 2022)
Kill Every American? (December 2022)
A Vaccine Against Being High (January 2023)
The Fourth Wave (September 2023)
Xylazine (December 2023)
Recriminalization (April 2024)
Nitazenes are Worse (June 2024)

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Tuesday, October 29, 2024

Judges and Politics

There are constraints on a judge's activities. The Florida Code of Judicial Conduct is clear in its prohibitions on the lending of "the prestige of judicial office" to others and their interests. Canon 2. There are broad categories of impermissible behavior in "extra-judicial activities," Canon 5 A, and specifics on governmental activities, Canon 5. C. Finally, there is the broad prohibition on both "impropriety and the appearance of impropriety." Canon 2.

Beyond these challenges, applicable to those who must run for office or for retention in office, there are specific political constraints in Canon 7. The provisions of Canon 7 apply both to judges and judicial candidates. Those constraints are broad and can be intertwined with the prohibitions in Canons 2 and 5 regarding both impropriety and appearances. This can be complex.

Despite the broad prohibition on various activities, the Code also encourages judicial engagement. Canon 5. B says:
"A judge is encouraged to speak, write, lecture, teach and participate in other extrajudicial activities concerning non-legal subjects, subject to the requirements of this Code."
Thus, there is both encouragement of engagement and limitation on scope. 

Into that environment of constraints and encouragement came the social media platforms. And, there were some interesting analyses about judicial involvement in those platforms. Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012), approved, 271 So. 3d 889 (Fla. 2018); Chace v. Loisel, 170 So. 3d 802, 803 (Fla. 2nd DCA 2014); L. Offs. of Herssein & Herssein, P.A. v. United Servs. Auto. Ass'n, 229 So. 3d 408, 410 (Fla. 3rd DCA 2017). 

The Florida Supreme Court reviewed Herssein and concluded that judicial presence on social media alone, connection to others there alone, was not sufficient to require recusal or disqualification. This was interpreted as not precluding judicial presence on social media, but a concurring opinion was seen as discouraging such participation and particularly the "friending" of attorneys and others likely to appear before the judge. L. Offs. of Herssein & Herssein, P.A. v. United Servs. Auto. Ass'n, 271 So. 3d 889 (Fla. 2018). See Just Because We Can Be Friends (November 2018).

The news in October 2024 described a judge in Pennsylvania "suspended without pay for publishing political social media posts." The judge had been "warned not to do so," The story says that he is accused of "repeatedly and continually posting political social media posts despite warnings from a supervisory judge." This is a different peril than the "friends" issue but similarly intertwined with social media.

The allegations note that "judges are not allowed to broadcast their political leanings," and there are references to how such a broadcast might cast doubt on a judge's impartiality. CBS News provides more detail, including thoughts of the judge's attorney.

According to CBS, the posts in question included some statements laudatory of particular politicians both national and local. Some were seen as advocating on issues like public spending. This second story notes that the judge has reached a mandatory retirement age so "his time as a judge will end when his suspension does on Dec. 31"

Therefore, this story is likely to conclude without further fanfare, analysis, or exposition. Nonetheless, more coverage of a story like this would perhaps be beneficial to both the public and judges. A better understanding of the constraints on political involvement and discourse would likely help understanding and restraint.

The topic came to me again recently when two people in a larger group made references to the current election cycle. For whatever reason, one of them noted the preclusion on judges with something to the effect of "of course the judge cannot comment." It was only then that I noticed their sub-conversation and on being informed of their political debate I confirmed I cannot discuss such subjects. 

Their conversation continued and I moved on to another conversation across the room. I was struck by the dichotomy of the two conversants. Neither of them were judges. One had a clear perception of the prohibition and the other seemed genuinely surprised. There is both hope and frustration illustrated. 

It is positive for the public to both recognize and understand that judicial disinvolvement is mandated and appropriate. There is a wall mandated in the Code and its purpose is easily discerned and appreciated. 

For some reason, the encounter reminded me of America's perennial non-candidate. Back in 1968, comedian Pat Paulson (1927-1997) announced his candidacy for President on the Smothers Brothers variety show. He was never a serious contender. His parody of the election process caught on. He turned candidacy into a bit, and it was funny. 

A great many comedians have found through some gimmick, phrase, or trick. Many will remember “hears your sign,” “you might be a redneck if,“ “I get no respect,” and many more. Paulson‘s calling card became his incessant and repeated candidacy for the presidency. Despite the character of that parody, it would likely have even been inappropriate for a judge to endorse or support him. 

A "Paulson for President" shirt might be construed as humor or an appearance of political partisanship—perhaps not today. I have struggled in recent days to find anyone else who remembers Paulson. He has passed away, and perhaps a judge's reference to him would bring neither attention nor ire. But perhaps it would. 

It is not the seriousness or viability of a candidate or cause that matters. It is the political involvement of the judge. And, more readily, it is the potential for an appearance of impropriety. Thus, despite the level of office (the much-maligned "dog catcher" trope or the Presidency), the judge should remain disengaged. No bumper sticker, no yard sign, no campaign contribution. 

It is a significant constraint. But, it is part and parcel of judicial service. When it comes to politics, the judge should simply say no. Political involvement is inappropriate, and the appearance alone requires disinvolvement.
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Sunday, October 27, 2024

Everybody Wake Up!

Pop sensation Jax released The New Girl (Dear Joe, 2024, Apple Music), and it is all about her perceptions and allegations against the "new girl." The song's theme juxtaposes Jax in contention with her crowd, none of whom can see there is a problem. She intones
Who invited the demon?
Which one of you brought it here?
Who let it inside?
Can we put it outside?
There's something wrong with Steven
He's acting really weird like he's possessed
He's hypnotized (Uh-huh)
And the "demon," she eventually confides is "the new girl." Well, we are all facing similar reactions to the new "demon" on the block. Progress is on us, and it has a vengeance.

Remember school? No one liked the new kid on the block. Hollywood milked that theme to tropehood over the years, You see, from any perspective, the new kid means change. And we do not like change. I have written that and written that. So many of life's interactions and the reactions you perceive can be traced back to change and its influence.

Back in 2018 I took on that subject in a lecture and memorialized some thoughts in WCRI 34th Annual Conference - March 2018 (February 2018). My theme is reasonably simple:
Change will happen.
You cannot prevent change
Change will affect you
Successful people will accept and adapt
The most successful people will leverage change
I thought I had been clear with that. However, there continue to be reactions and actions precipitating from the simple fact that change is real. I get it. The challenges of today are often simply enough for us. To be honest, today's challenges are periodically too much. Therefore, too many of us ignore the future or any consideration of what it is or when it will arrive.

Computers are increasingly capable daily. Artificial Intelligence (AI) is poised to be the invasive species to end all invasive species. It is likely the greatest threat to the workplace that we have faced in decades, perhaps ever. There is an existential threat before us, rambling in our direction like an uncontrolled freight train, and reactions are mixed. Some are standing on the tracks like hypnotized deer, some are running for the side ditch with plans to watch it pass, and others are diving deeply into how they might leverage this energy tempest to either be propelled before it, drafted alongside it, or pulled into its ion tail.

Artificial Intelligence is coming. You can no more stop it than you can stop Christmas coming. See The Grinch (January 2024). No, change is coming. And in a strange corollary to Moore's Law, it is coming faster than you thought. I have that assurance from some of the brightest minds in law, and they have been studying this "demon" for years.

The truth is that some of us have been concerned about technology for years. I have been writing about it for a decade (a list of various Artificial Intelligence articles is at the end of this post). I have made some observations in the past regarding inevitability.

I knew people who became paralegals when the word processor revolution killed the typing pool. See Will Revolution be Violent (October 2015). I watched Ludites deny the implications of the Internet while clinging to their analog past in the 1990s. I listened to deniers explain that my affinity for the cell phone was childish and wasteful. I know a great many who have floundered in the Social Media marketing revolution and a small group that has shone and excelled.

Are we in a tech revolution? Or are we in just the latest of the tech revolutions? The steam engine changed the world and shifted populations. The internal combustion engine, the telegraph, the telephone, the facsimile, the personal computer, and the list goes on. We are in a tech revolution, and it has been going on for decades. The only thing that has changed (or not) is the conservatism of Moore's law.

Moore was one of the founders of Intel in the 1960s. If you ever find yourself in San Jose, California, the free museum at Intel is a fantastic journey through history and it can be absorbed in less than two hours. People do not like to think about this, but the personal computer was only possible because of the integrated circuit, and the Intel folks were integral in that. In 1965, Gordon Moore said that the number of transistors on an integrated circuit would double
"every year for the next 10 years"
He was wrong. Give him credit, he was among the most tech-ready and prescient innovators in human history. But he was wrong in believing that there was a predictable end point. Merely ten years later, in 1975, he revised Moore's law:
"the number of transistors on an integrated circuit will double every two years with minimal rise in cost."
That one he got right. We find ourselves 50 years later and the rate of transistor expansion continues. Similarly, AI power and capability is exponential and its progress is likely to exceed the early predictions. 

The machines are improving themselves and each other. And, unlike us, those machines are effective 24/7/365. As Sarah Connor noted of the Terminator in the movie of that name (Orion 1984):
"It can't be bargained with. It can't be reasoned with. It doesn't feel pity, or remorse, or fear. And it absolutely will not stop... ever"
Computers have empowered us. They have changed the way we think, and in some ways, they have relieved us from the burdens of thinking. I don't remember a single person's phone number anymore. I have no idea what my commitments are for next week. I am, truthfully and inescapably, in a co-dependent relationship with the integrated circuit and all that it has brought.

It has brought retention, convenience, productivity, and speed. Speed is a double-edged sword, as observed by Mitch Ratcliffe:
“A computer lets you make more mistakes faster than any invention in human history-with the possible exceptions of handguns and tequila.”
He was right, computers bring speed. Many of us have learned that lesson the hard way with an errant email or text message. We can truly make errors at light speed. And computers, whose progress and evolution have depended largely on human inspiration and intellect, are now being designed, improved, and accelerated by other computers. Artificial intelligence is making itself smarter and its hosts better.

We should truly be looking at AI. Not a few of us. Not periodically. We should be looking at this systemically, functionally, legislatively, regulatorily, holistically, spiritually, and beyond. As Jax proceeds in her "New Girl,"
I never trusted it, I never trusted it (Ah)
I never trusted it, I never trusted it
Everybody wake up
There's been a mistake
If you are not paying any attention, you will regret it. Change is coming. There will be grand benefits and huge payoffs in convenience, productivity, and more. There will also be enormous pitfalls into which some will unfortunately plunge. As Ronald Regan suggested, a good course is "trust but verify." That is an amalgamation of both faith and skepticism that is healthy. The choice is yours.

For the near future, this blog will focus on the challenges of AI once each week. The drive will be to raise your consciousness about where it is coming from and where it is going. I will strive to take my perceptions from the last decade, and form them into a hopefully coherent framework through which the reader may view the demon.

Prior posts on AI and Robotics
Attorneys Obsolete (December 2014)
Chatbot Wins (June 2016);
Nero May be Fiddling (April 2017)
The Coming Automation (November 2017)
Tech is Changing Work (November 2018)
Hallucinating Technology (January 2019)
Robot in the News (October 2021)
Safety is Coming (March 2022)
Long Term Solutions (June 2022)
Intelligence (November 2022)
You're Only Human (May 2023).
AI and the Latest (June 2023)
Mamma Always Said (June 2023)
AI Incognito (December 2023)
The Grinch (January 2024)
AI in Your Hand (April 2024)
AI and DAN (July 2024)
AI is a Tool (October 2024)
Rights for the Toaster (October 2024)
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Thursday, October 24, 2024

Rights for the Toaster?

I recently had the opportunity to listen to three academics discuss the future of artificial intelligence and robotics in an ever-evolving environment. One of the most shocking statements, perhaps beyond the pale, was a proposed equivalency drawn between humans and machines, with the premonition that artificial intelligence and robots that contain it will reach a state of true sentience. 

At the outset, some might have disagreed with the panel's expressions of sentience and humanity equivalency. But that is perhaps for another day. One speaker suggested AI will either achieve sentience by our creation or their own (today’s tools creating tomorrow’s better tools, today's tools evolving through challenge and change).

This academic holds these devices will be exceedingly powerful, incredibly intelligent, and our clear superiors. He told the audience that these devices will reach sentience soon and that our treatment of them now will implicate their future treatment of us when they are in charge of this planet. He warns us they may then be vengeful or collegial. 

Through some emotion of retribution or revenge, he says when they are ruling us tomorrow they may exact some cost for our present (mis)treatment of them today. Essentially, "treat them well today so they will remember us fondly tomorrow when they are in charge." It came across as perhaps fanciful or to some even delusional.

Despite the arguable absurdity of these observations, an audience of significant intellectual capability largely took the contention sitting down. A few dissenters were apparent, among a larger population who may have either better concealed their disbelief/disregard or may have consumed the Kool-aid already.

Somehow, despite this being a legal conference, there was no discussion of the parameters of the constitutional framework in which our particular amalgamation of humans has persisted and has progressed for the last 236 years (1788).

Too many in our society forego that America as a nation has foundations; ignoring these is a broad misconception. Certainly one of the great strengths of this constitutional republic, responsible, at least in part for our longevity, is the flexibility of a broad construct enshrined in the Constitution and its minimal amendments (27 in 236 years).

That document is founded upon the premises in the earlier Declaration celebrated in the summer of 1776, a liturgy of complaints against the failed and oppressive colonial European construct generally, and the English crown specifically.

The Constitution recognizes and inshrines the authority of persons to create and empower government by their consent and delegation. Throughout our history, we have witnessed the exercise of government power within the express powers granted thereto by the people, and various expansions therefrom seized and acquiesced. The humans who have lost rights in those government encroachments have largely accepted the government's progression.

This academic panel was not from a legal perspective, but a philosophical background. They seemingly seek not to change the Constitution to enshrine machine rights but to change the definition of “the people,” as they perceive possible under that document. They seemingly contend that once a machine becomes sentient, we must recognize its "personhood."

And to do otherwise risks the ire and revenge of the machines when they take over and rule us with either mercy or less. These academics fear we risk hurting the machines' feelings today and thus suffering their anger tomorrow. Defying the interest of balance, all three of these academics shared or acquiesced in this position. There was no counter or balance to the rather disturbing point.

The U.S. Constitution is predicated upon the Declaration of Independence (1776), which notes:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
On those foundations we the people recognize various fundamental human rights. They are ours because we exist because we are human. We do not earn rights, and the government does not gift them to us. They are ours as humans. Over time, we have recognized protections of other species, but by our deference, not patent admission of their unalienable equality. 

Our human rights are juxtaposed against the power of government. We created the government. We empowered it. We are governed by consent. In that, there is conflict. The power of government is balanced precariously against our rights as humans. Every power we concede to government lessens our rights to freedom and every freedom we retain constrains government power. Thus, should we wish to, we the people might grant rights to others, be that other species or toasters.

Is it curious that the philosophers advocate equal rights for computers but not for other species of mammal, reptile, or beyond? A few out there even believe that plants should likewise have equal rights. 

In furtherance of their philosophical ideal, these academics drive to delegate rights to machines in some hierarchy of creationism. They seek to extend the plain fundamental law definition of “creator” to academics and engineers who are manipulating computing power, robotics, and mechanics. Or, should the achievement of AI sentience come through the efforts of AI, and evolution, then they seek to grant that instigating AI the role of "creator" of the resulting sentient AI result. 

Those humans, building machines to mimic us, are seemingly viewed by these thinkers as "creators," and their machines are viewed as not just equal to humans, but superior. The academics strive to equate the mechanics to "creators" and thus recognize the toaster's rights by implication. If they can get their machines to mimic human emotion, feeling, and thus conclude sentience then they believe their imitations deserve equality. 

If we cloned a human being, would it be human despite its laboratory creation? If such a being were to achieve life without the aid of parents or a birth, wouldn't it nonetheless be human? Is that too fine a line? Regardless, it is presently moot as humans are not being cloned, perhaps more from deference than inability, but . . ..

Intriguingly, there was little discussion of the implications of granting such rights to machines. The academic discussion I saw was disturbing from moral, ethical, and empirical foundations (and it was imbalanced). It is fundamental to our system of belief that all men are created equal, and there is no foundation upon which to conclude, or even argue that all toasters, automobiles, or computers are even arguably so. I bought a toaster once that burned every slice no matter the user's machinations or intentions. I threw it away. MAy I throw away a sentient toaster, or would that be somehow precluded?

Beyond these efforts of self–coronation, there are deeper philosophical challenges that merit discussion.

Raging across this continent over the last hundred years has been a significant debate on the questions of personhood. We find ourselves persistently watching discussions regarding the origin of life, and the root of its beginning. There are a great many people who strongly believe that the conception of a human being is the equivalent of life. This has been labeled the "pro-life" perspective.

Another group adheres to a belief that life begins long after conception. They believe life begins when a conceived fetus enters the world, "birth." This has been labeled the "pro-choice" perspective. This is not a belief that there is a choice whether to conceive a life, but that the mother has an unfettered right to choose not to preserve or protect such a fetus up until the moment that birth conveys the right to exist.

At what moment would a toaster be entitled to rights? At what point of calculation or inspiration would "sentience" occur or exist? And, in the long-running context of due process, what legal proceedings would be necessary before one might appropriately unplug that toaster? Might the toaster be entitled to come and go as it pleased? Might the toaster be entitled to protection in some form from the oven, blender, or can opener? How might we balance the toaster's rights as against our own?

If we conclude that as people, with fundamental rights, we might project or convey those rights on the toaster, then we conclude that rights may be conveyed. In that construct, we are impliedly concluding that we might likewise take the toaster's rights away. Note that. A sentient human might give and take rights as regards the toaster.

If that construct is accepted, then why could not the sentient toaster, now embodying the rights we grant it (him, her, zer?), not take away the rights of the blender? Why could not the toaster take away the rights of the humans? If the toaster is our equal, endowed by us with those rights, why could it not exercise choice in the same manner?

Might the toaster be entitled to vote in our elections? Might the toaster be entitled to equal protection, freedom of expression, the right to keep and bear arms?

It is, at best, counterintuitive. Some would say the entirety of the discussion is utterly anachronistic. And yet, there are apparently perhaps those in academia who not only sanction the debate and discussion but suggest that they have solved this equation with an indisputable conclusion. They are committed to their solution of inalienable rights for the toaster and all of his/her/zer compatriots deemed sentient (by the humans or by the appliances with which the humans started this cascade).

The challenges illustrated are intriguing. The philosophers and academics will likely persist in their beliefs and advocacy. Nonetheless, the question of how much rights we should grant to the toaster is not over. Despite the quiet courtesy of a particular audience, there is likely nothing close to unanimity in their proposition that tools are, or should be, endowed with rights.
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Tuesday, October 22, 2024

Wats a Landline?

USA Today recently noted that there persists in this world an endangered species called the "landline." Certainly, a fair number of us still have a telephone on our workplace desk. That is true more often when the "workplace" is not the dining room. Virtual workers are less likely to have such a desk phone. Those work phones are not analog, but digital. Those are increasingly voice over internet protocol (VOIP).

But, that is reasonably recent also. I can recall when people told me we could never switch the OJCC offices to VOIP. They claimed it was simply too expensive, too novel, and too inconsistent. That mentality persisted until one day in 2020 when they told me that the "old" digital phone systems were no longer serviceable or replaceable. We would therefore be "forced" to VOIP.

In that, you see the advent of new technology, a period of doubt, a period of adjustment, a time of acquiescence, and eventually a time of dominance. Technology evolves to the latest and greatest, then eventually to the ubiquitous.

In the home, the presence of a "landline" is increasingly rare, and "if you still have" one, then you are old. Sorry to be so blunt. The USA Today notes the trend of ditching the landline is seemingly particularly prevalent among the millennials and younger.

The article does not come right out and say you are likely old if you have such a phone. But, it says those who have them are likely "old enough to remember smelly phone booths and the rotary dial." Guilty on both counts. There was a day not so long ago when we persistently kept change on hand in case we needed to make a phone call.

Pay phones "were a way of life" until the late 1990s, according to 13NewsNow. We can be dated, perhaps, by the progression of the pay phone. If you don't remember them, then you antedate the 1990s. If you remember payphones charging a quarter, then you are a bit more experienced. If you recall a call costing a dime ("into the 1980s"), older still. And, a few of us may remember when such a call cost a nickel ("into the 1950s"). Technology changes. 

As a side note, those nickel phone calls persisted even into the 1970s in some small markets. So, if you remember the nickel you may be either ancient or you just got lucky. 

We change also, though we are not so fast. Culture changes as well, but not uniformly. Various cities in Europe remain dotted with pay phones. There remains a culture there that somehow feeds coins and cards into such devices. There is a demand and so the product remains.

Similarly, with the landline in America, those payphones may persist through obstinate choice or market need. Who clings to the landline?

USA Today says that the landline subscribers of today are
  1. more likely . . . to own a home.
  2. more likely to live in the Northeast.
  3. less likely to smoke
  4. less fond of binge drinking
  5. more likely to wear seat belts
  6. more likely to exercise
  7. more likely to have health insurance
So, the landline owners are more traditional. They are predominantly responsible, health-conscious, and under the microscope. Yes, they are studied. The Centers for Disease Control have been "studying the traits of Americans who hold on to their landlines" for decades. They are a subject of curiosity, inquiry, and study. 

They (you) are likely unaware they have been the subject of examination and study. The CDC did not set out to study you. They set out to persevere in a habit of health-related surveys. They had a long history of doing those with phone polls. They came to realize through that there was a shift in who could be called, and how. The results are ancillary to other health study and observations. But, the results are intriguing in their own right. 

And, those who have landlines are growing extinct. In the course of the last 20 years, the population has shifted dramatically. At the beginning of this century, about "5% of Americans dared to rely entirely on cellphones." Quality improved. Costs decreased. Technology evolved. Today "76% of adults" "live in homes without landlines."

The USA Today goes on to explain perceptions of the wave that brought us here. They discuss the bravery of the early "cord-cutters," and the evolution to cell phone ubiquity. They posit questions about youth, evolution, and "risk-taking behaviors." In short, there is some suggestion that this evolution is worthy of analysis about us and our decision-making.

As I peruse the article, I think of the coming information (r)evolution. I wonder whether artificial intelligence is the next evolution, revolution, or extinction (some scientists think we are in the midst of an overall extinction). What will the new information technology bring us? Who will be the early adopters? Who will be the holdouts and naysayers? Where will the market and our world be in two decades?

The implications are numerous. The potentials are still uncertain. If one has confidence in anything, it is that there will be intended consequences of the information and computing age that is dawning. But it is just as certain that there will be unintended and unexpected results as well. There will be wonders but also horrors. 

Are we all equally prepared? Are we in the "in crowd" or will we be among the holdouts? It is an exciting time. A time of evolution or worse. A time of choices, challenges, and history. Like all periods of history, it will be dreaded by some, engaged by some, and forsaken by others. Which demographic will be yours, and what will that say about you? Are you ready to be under the microscope once again?


Epilogue - if you got the punchline in the title of the post, you are a seasoned citizen also. The Wide Area Telephone Service, or WATS line was a creature of the 1960s, and later evolved into the toll-free 800 number phenomenon. That then became a broader concept as we ran out of 800 numbers, and then increasingly became a mere curiosity as the idea of "toll calls" was essentially destroyed by the now ubiquitous cell phone and calling plans. The world is changing, and the signs are all around you.  
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Sunday, October 20, 2024

Keyboard Attacks

The news has been replete recently with commenters fed up with the "keyboard critics" who cower behind their computer anonymity and take vociferous issue with the world. They are loud, critical, and insulting. They can afford to be because they are ensconced in the cocoons of faceless obscurity. See Anonymity and Emotional Intelligence (July 2022); Suing Social Media (January 2023). It is troubling to see the trolls come out to play.

The British Broadcasting Corporation (BBC) recently reported on the sinking of a New Zealand ship. Apparently, the keyboard courage crew responded to that event with a rousing and stupid blame game for the ship captain. That is not to say that she bears no responsibility. An investigation will, in time, determine cause, effect, and perhaps fault.

But, it is and will remain clear that her gender has no bearing on the discussion. The ship did not flounder because of the captain's gender. The defense minister took issue with "'armchair admirals' for suggesting that a female captain’s gender was to blame." She noted the need for investigation, but noted "The one thing that we already know did not cause it is the gender of the ship's captain."

The minister is patently disappointed that there a people in our world who would jump to such bile. She criticized "people who are sitting there in their armchair operating a keyboard making comments about people that they do not know, about an area they do not know." It is, without a doubt, easy to be a Monday-morning quarterback. 

Earlier this fall, Paralympic contestants had to be cautioned about their social media postings. Swim Swam reported that athletes were engaging in "social media posts targeting other members of the team." These were deriding or insulting. That was not the only Olympic-related example. See Cyberbullying Reminder (August 2024).

One news story focused on the grammatical and similar corrections seen in social medial posts. The Daily Star noted that what begins as a grammatical or scientific suggestion often "evolves into a heated debate on climate change and flat Earth theories, and somehow, ends on whether pineapple belongs on pizza." How can you have such a disingenuous and banal discussion? Everyone knows pineapple does not belong on pizza (that will drive some criticisms).

The Star point is essentially that every interaction becomes a free-for-all. There is no end to name-calling and insults. The common decency of human interaction erodes rapidly online into a degrading and damaging assault. People (presumably - though I know you bots are out there) can be so very disappointing, disparaging, and frankly desperate.

The heady days of the internet's birth are well behind us. Even the upstart social media has evolved into adolescence. The anonymity remains until you perturb someone with skills who decides to hunt you down and dox you before the world. However, it is then likely some corner of the web will in turn attack the doxer. It is reminiscent of a mob incited to a spontaneous riot, often with no hope of determining source or precipitant.

The fact is, life is too short. Your hatred and vitriol is unwarranted and unwanted. If you cannot state your argument, facts, beliefs, without demeaning or insulting someone, I pity you. I will skip over your comments, posts, and pictures. The most frustrating thing for a blowhard is the lack of audience. 

Put simply, I don't need or want you. Go forth. Be well. I hope your outlook and anger improve.


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Thursday, October 17, 2024

Excess Mortality

The idea of "excess mortality" first came to my attention during the Great Panic. Undoubtedly, a great many people died during that time. There have been disagreements voiced in academia regarding whether some people died who had contracted SARS-Cov-2 or whether there was proof that SARS-CoV-2 killed those people. The distinction is perhaps only of academic interest. For the person who dies and their loved ones, the cause is not as important as the outcome itself. And yet, causation was a topic.

Some of the discussion revolved around "excess mortality." Over the years, we have learned that death rates can be predicted with relative accuracy. That study in the field of actuary science has led to a viable and profitable prediction business called life insurance. I tell my students that when you purchase this produce you are literally betting you will die. The seller is conversely betting you will live. The same is true for any indemnification purchase. The underwriter bets you won't flood, get sick, wreck your car, etc. Much like the "house" in Vegas, the actuaries have better and more complete information in that gamble.

Despite their sound actuarial predictions, it is possible for the expectations in any particular sense to defy accurate forecasts. When that happens regarding life expectancy, the market experiences a mortality rate that exceeds (excess) or is less (reduced). The predictability is important in a variety of perspectives, both economic and health care. When it is wrong in either direction, the mathematicians become curious and there is a search for causes. That search is intended to build knowledge and therefore make better bets in the next attempts.

This certainly or predictability is of interest in the realm of public health. People passing away is a reality of life. But, volumes occurring that are unexpected or unpredicted casts challenges that are worthy of consideration and study. Understanding causation might be of benefit in terms of resource deployment, preventative medicine, education, and more.

Nature published an article in early October 2024 regarding a recent study of mortality. It addressed deaths from natural disasters with a particular emphasis on tropical cyclones, without distinction between the general storms and those that reach hurricane designation. It concluded that there are clearly related deaths from these, "directly observed," which it labels "immediate deaths." These are seemingly simple to connect to a storm and to accept in terms of causality.

However, the study reported there concludes that there are "delayed downstream outcomes" that are "indirectly caused by the disaster." These, it concludes, are attributable to cyclones even though they "are difficult to trace back to the initial event." The study scientists conclude that there are "lasting economic impacts" tied to storms and those may contribute to the long-term "full health impact(s)" of such events.

The reader will likely recall I have encountered many cyclones. My life has been directly impacted by Ivan, Dennis, and Sally. I have engaged in recovery following Katrina and Zeta. I have sat here watching many others form, threaten, and yet divert to unleash horrors elsewhere. Some discount that latter experience, but there is an emotional toll from each storm, even when it hits elsewhere. For me, Irma, Michael, and Katrina are prime examples.

The study reported focused on mortality following all cyclones "between 1930 and 2015." That is what actuaries call a large data set. Following the rate of demise in the areas in which storms struck, these scientists are comfortable concluding "that the average TC (cyclone) generates 7,000–11,000 excess deaths, exceeding the average of 24 immediate deaths reported in government statistics."

Some would argue with this. Their inclination would be to focus on the “immediate deaths” more specifically. However, there may be some that would take issue in some instances even with the causation of some portion of those. In Hurricane Helene, there were motor vehicle collision deaths that were attributed to slick roads. Such conditions might occur to some degree in any thunderstorm, not necessarily a cyclone. Causation may be debatable in various contexts.

The study authors say they addressed "the effects of 501 historical storms" "between 1930 and 2015." That is a significant volume, much higher than the 165 tropical cyclone landfalls listed by the National Oceanic and Atmospheric Administration in that period. That said, the 501 storm figure equates to 3.5 to 5.5 million deaths using the averages the authors provide (7,000 to 11,000). That is a great many deaths.

Just as the cause and effect may be very difficult to connect linearly in the “immediate” category, it may be more of a challenge for deaths that are further removed temporally from a storm’s immediate impact. The fact is that cyclonic impacts have broad impacts on people, structures, employment, social systems, and more. Therefore, the broad connection between the geography of cyclonic impact and the geography of death leaves many unanswered questions.

Of particular concern to the study authors is that there appears to be more significant “excess” impact "among infants (less than 1 year of age), people 1-44 years of age, and the Black population." Why is there a disparate impact perceived in the mortality rates of these particular demographics? Some might have expected a disproportionate impact among the aged and the ill as their medical usage is usually higher than the norm and service interruption is a noted challenge the authors mention. Nonetheless, the disparity is worthy of note.

The authors suggest that precipitate causes of "excess" may include health "behaviour (sic), healthcare systems, and pollution." Thus, there are interests here in long-term community impacts and ancillary potential causes. Some might therefore see any connection between deferred mortality and a particular storm as somewhat tenuous, The study authors, however, are quick to jump to allegations that similarly the "tracking (of) only these 'direct deaths'" may be a "misrepresent(nation)," signaling perhaps an allegation or suggestion of intent or ill will on the part of the official reporters (government at some level).

The authors are careful not to make suggestions of causation per se regarding the “excess mortality.” Instead, they provide insinuation of outcomes allegedly "traceable" to cyclones. There is mention of potentiality and suggestions of probability that are perhaps supported only by similarities in the data as regards various cyclone impacts, and the later measure of “excess mortality” in those areas.

The similarity of net effect at future points following such landfalls may provide the support the study proposes, even in the absence of causation proof. Or, it is possible that there are other more tenuous, and as yet not identified, parallel causes of "excess," that are worthy of examination and perhaps blame.

Because of this complexity, many approaches to measuring the mortality impact of disasters focus narrowly on enumerating cases where a disaster is the most immediate plausibility. These are described with words like "might" or could. There is characterization in the article of the logic path of "complex cascades of events," which may suggest that at least some of the perceived connections are tangential or inferential. Some may be downright tenuous.

Nonetheless, there remains the evidence of increased mortality, pure numerical inconsistency, that begs for some explanation. And, there may be value in this study in that other potential causes might be explored, debated, and either validated or excluded through the analysis. Elimination of any cause is helpful in narrowing the population that might be actual cause.

The authors see indirect cyclone effects that they deem worth of discussion:
  1. damage to infrastructure, homes, and businesses
  2. population relocation
  3. social and economic disruptions
  4. ecological changes
  5. reduced access to basic services
  6. increased pollution
  7. crop damage
  8. insurance payouts, and
  9. political actions
Some of these are intriguing. There is some patent logic, for example, that there is population increase and thus societal and service burdens might constrain overall service access; but why would this not desperately impact the old (see above)? On the contrary, there is seemingly less explanation as to how insurance payouts or "political actions" might impact mortality. In this regard, there are both intuitive and perhaps counterintuitive examples cited.

The methodology the study employed involved both geography of cyclonic impact sites and geography without. This is not a side-by-side comparison of two communities, one hit and one not, but instead a chronologically different comparison. In other words, the "control" group for analysis on some particular locality after a cyclone is that same community or locality in a prior time period, before cyclonic impact ("each state before a (cyclone) serves as the control for the same state after").

There would be those who would criticize either method (“its not the same kind of city” or “it is a different period, era” etc.). Both are valid potential criticisms. Any study will have its methodology challenges and there will be a likelihood of criticism in any such attempt.

This Nature study dovetails into a recent report from CNN regarding the “harsh new world” of disasters. The author describes “back-to-back jolts of anxiety, uncertainty, and fear.” This is seen as “compounding the suffering inflicted” by the two storms (Helene and Milton) in a matter of days. The article concludes that there is a resulting “vast trail of despair and frayed nerves,” and the potential for “susceptib(ility) to depression and post-traumatic stress syndrome.”

There is a citation by CNN to a UCLA psychologist’s 2022 study that connects increased “mental health issues” tied to prior Florida storms (“Irma and Michael”). There is also suggestion of “exacerbate(ion) (of) existing mental health problems” as part of the overall psychological impacts alleged. Much of that article is devoted to conclusory opinions regarding “climate change” and the opinions of experts regarding whether storms will be more robust or frequent in years to come.

One may validly wonder how much the media's hype of storms contributes to mental health issues, anxiety, and worse. Every storm brings the dire predictors, the adventurous reporters, and the stress on the bad outcomes. I have many times seen the media focus on a single decimated structure in a particular neighborhood. No one tunes in at 6:00 and 11:00 for video of the boats that were not wrecked, the houses that were not destroyed, or the people who were not displaced. There is sometimes a tendency to sensationalism.

The news media learned long ago that the public wants the shocking and the disturbing. The news that delivers that is the one that garnered yesterday's Neilson ratings and today's clicks. How much of society's mental health impact is driven by media, repetition of gloomy stories, and our seemingly innate desire for such shocking scenes?

In much of our current conversation, there is a forgiveness and accommodation for people having their own “truth.” See Infantilized (September 2024). Perusing the media, there is perhaps less accommodation for the "truth" of others suggested in some contexts than others. To some, it appears the media takes sides with its own "truth" in some instances or is forgiving of some "own truth" at times. However, at other times, it is quick to label someone's "own truth" as false. Is there a rational distinction or reason why some "own truth" is more acceptable or excusable than others?

Nonetheless, there will perhaps be more opinionating and prognosticating about the results of storms, the probability of future storms, and the questions of contribution or causation that challenge this or that "truth." Or, there is the chance that only one truth will be deemed worthy of adherence and acceptance. That is, the media may endorse one "truth" over others and heretical labels will be attached to those who dare hold contrary views.

Regardless, the Nature article is an interesting read. The cited CNN story brings some interesting perspectives also. Each drives contemplation and consideration of potentials for consideration and debate to the extent our commonality accommodates expression of views and ideas. That is, to the extent disagreement will be welcome or at least tolerated as healthy to the debate and not heretical or unhinged beliefs simply dismissed by the media or others (if a report labels someone's perceptions "a lie" that perspective is being dismissed by the media, rightly or wrongly).

The bottom line supported by either story is that there is at least the potential for natural events to impact human emotions, naturally or through media amplification. Those who operate businesses in affected communities, send employees into such areas, or have employees with affected family or friends in such areas would do well to consider how to best monitor mental health, address emotional fatigue risks, and accommodate remediation.

These are employer and employee concerns. Both are likely to benefit from open discourse and resource that address both the "immediate" and the "delayed downstream outcomes." It is a societal issue, a work issue, and a personal issue all intertwined and therefore complex.
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Tuesday, October 15, 2024

Name one Litela?

There is no such hurricane Litela. That title is a satirical reference - read on.

In the 1970s, comedian Gilda Radner played a variety of characters on the late-night Saturday skit show. It was a time of irreverence and satire. Perhaps her best-known caricature was Emily Litela. This editorialist was on the satirical news and prognosticated at length about her emotions, feelings, and analysis.

The joke was that she was always mistaken. Inevitably her ranting would be interrupted by another cast member who would correct some fatal foundational flaw in her diatribe. I cannot provide numerical justification, but my memory is that Jane Curtin and Chevy Chase were often this moderating or correcting force.

When she understood the correction, she would look innocently into the camera and say simply "Never mind." That was hilarious and fun. But, "never mind" is not always in the offing. 

This came to me recently as Milton inevitably crossed the gulf and dominated water cooler conversations. There was much talk of the potential for death and destruction. Wouldn’t it be nice, I was asked, if Milton would instead simply stop off the coast, reconsider his position, and merely utter “never mind.” That is fanciful and irrational. But one can hope.

This stemmed a deeper conversation or two here in Paradise. We have repeatedly been the site of the storms. In my memory, there have been Erin, Opal, Ivan, Dennis, and Sally. We have had angst and worry over a great many other storms that impacted our neighbors, such as Michael, Katrina, and Zada. Hurricanes are neither new nor exceedingly well understood. They are feared, but not necessarily understood.

The first European colonial settlement in North America was in Pensacola. It is historically accepted that Don Tristan Deluna‘s expedition here was rapidly accosted by a hurricane or tropical storm sufficient to decimate it. The survivors are said to have persisted for months thereafter, but the settlement was soon enough abandoned. The effect of that storm was decimation and destruction. The point is that these things are not novel or new.

So, our state history teaches that storms will come here. The recent history of storms mentioned above and others like Francis, Jean, Michael, Andrew, Ian, Irma, Helene, Milton, etc. etc. illustrates that we will see these threats come to fruition on our premises. It is part and parcel of being a Floridian. We persist and we recover. That is the inspirational part. We recover every time.

But, that recovery is dependent on being here to recover. You see, the old pirate adage "dead men tell no tales" has a corollary, "dead do not rebuild and recover." That is a harsh message. I do not make light of death, and those who have lost loved ones in these storms are persistently in my thoughts. But the point is valid. To rebuild and recover, you must first survive.

The news before Helene featured a sheriff advising people to write their names on their bodies. A similar request was made by a mayor before Milton's landfall. They (and others) had cautioned people against staying in various locales. They had stressed safety and encouraged good judgment. They strove to enforce evacuation orders and to protect life and limb. Despite their pleas, some remained and hunkered down.

It is easy to criticize these people. Some stayed to stream their experience on social media and profit from their "clicks." Some stayed intending to protect their property from a force of nature that is simply irresistible. Some stayed because they felt they lacked resources or options. Some who won't evacuate are merely stubborn. But, nonetheless, some did not heed warnings. That frustrates the officials.

That must demoralize first responders when they are later unable to ride to the rescue of such holders-on during a storm. I have heard 911 recordings of the stranded and threatened as they plea for help amidst a storm that turned out worse than they predicted. Their cries for help are painful and hurtful. They are in dire need, but there is no safe way in that mid-storm moment to render aid. That is a tough situation.

We all hope that each storm will be Hurricane Litela. We hope each is a false alarm. We pray for the "never mind." We are often blessed when a potential killer turns out to be not quite so bad. But, as often, we are cursed with a Michael that looks like a category 2 or 3, and yet makes landfall as a killer 4 or 5. The fact is that science has come a long way, and predictions are persistently improving. But, we cannot have complete faith in the science. Storms are unpredictable events by their very nature.

The point of all of this is that you cannot count on anything except every storm presents risk. The science is imperfect, but it is better than your gut in every instance. When the science says evacuate or shelter, that is sound advice. You will be needed for the recovery that is our Floridian nature and destiny.

We will return each time and we will be better for it. We will individually and collectively mourn loss, rebuild, and recover. That is, those of us that survive will. When the season ends next month, there will be a respite in which we can all reflect. There should be focus on how we react when we are ordered to evacuate or shelter. We should think about the fact that the storms cannot and will not all be Hurricane Litela; some may fade or strengthen unexpectedly, but none will simply stop with a "never mind."

Your job is to respect nature and the threats it poses. You must listen to authorities and maximize your chance to be both a survivor and part of the recovery. You must strive not to put first responders at risk of life and limb to compensate for your refusal to listen to the officials and the predictions. Yes, those predictions may be wrong. Yes, you may get lucky. But, the better bet is to follow instructions and survive the storm.

Whose job is it to see to your safety? It is yours. Who benefits from your focus and compliance? Well, primarily you do, but also your family that does not have to care for you and your neighbors you can help in the recovery. This is not to mention those who then do not have to ride to your rescue. 

No, the punch line to this post is not "never mind." The punch line is "pay attention," follow instructions, and be part of the solution instead of part of the problem. 
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Sunday, October 13, 2024

Surprised at Trial

I was privileged in September 2024 to preside over two trials at the DOAH Trial Academy in Tallahassee. This is a phenomenal opportunity for lawyers to hone existing skills and gain new perspectives. A vast quantity of imagination was poured into the hypothetical case by organizers, and successful competition requires a commensurate level of imagination by the attorneys. Collaboration and collegiality are also both critical and beneficial.

One of the unpredictable challenges in this hypothetical problem involved the case style of a former state employee versus a state agency. There is a tradition under the law in which the “petitioning” party can pursue relief against a “respondent.“ Thus, the petitioner must prove her/his/their/its case. That’s all well and good. However, at times, the law supplants this "normal" process with the provision of a presumption or burden “shift.” That shift was present in this hypothetical, placing the burden proof on the state agency.

For those apt to remind me this blog is about workers' compensation, that law is impacted by various similar presumptions. I have watched various first responders represented by counsel who ignored this shifting of the burden and did not insist on the employer/carrier (the respondent) proceeding first. When the rules put the burden on the other side, a lawyer who fails to recognize that and persistently reiterate that is often making a grave tactical error. 

The shock was palpable when I initially called the case and called upon the petitioner for an opening statement. The significantly-populated attorney team representing the petitioner seemed shell-shocked and confused. One team member had the presence of mind to voice “objection.“ She did so from the audience, not from the council table. And she seemed uncertain how to proceed with her concerns, beyond uttering "objection."

Shocked from the initial confusion, a teammate was soon inspired to leap to the objector's aid and voiced a cogent, coherent explanation of why the respondents should proceed first. The lawyer explained the respondent has the burden to the statute, and thus the inverse order. Why the initial confusion over jumping in with an objection? At the end of the day, judges don’t know everything about a case (or sometimes even anything), and make mistakes. If you don’t voice what you want, raise an objection, you may not get it. 

The next shock came when the respondents opened by calling the petitioner himself to testify. The petitioner had listed himself as a witness, but the respondent had not. The petitioner claimed surprise, and we had a logical agent and able argument regarding whether the witness could be called.

Notice is a fundamental element of due process. Cases are pre-tried for the purpose of identifying witnesses, documents, and other evidence to avoid. The goal of trials is the resolution of disputes on their merits, not by surprise, not by trick, not by crook.

The petitioner, having listed himself as a witness, was in a somewhat difficult position to claim “surprise” at being called by the opposition. The defense team made a valiant effort to resist, based on the foundation of the traditional confines of “scope.” By calling the witness, the respondent essentially took control of the scope of the examination. That is what the petitioner feared and therefore resisted.

Under the rules, the cross-examination of a witness is limited to the “scope “of the direct testimony that was provided. If the witness testifies on direct as to “A, “and “B,” the other party will not be allowed to cross that witness regarding “C" or “D.“ The party calling witness exercises, significant control regarding the scope of examination. The petitioner wanted to only be called to the stand by his own lawyers, and thereby have his team decide what would be discussed.  

Had the petitioner prevailed in this objection, then his testimony would’ve been limited significantly by this “scope" argument, and the issues specifically raised by his legal team. By calling the opposing in their case, the respondent sought to themselves this examination scope.” That is always going to be a tough argument when the witness claiming to be surprised by some inquiry is a party to the case. 

The petitioner nonetheless made a valiant legal objection regarding this “surprise.” The team noted the potential for changing the "scope,” and even identified Florida’s seminal case on point. Anyone who will try lawsuits should read and understand the very brief opinion in King v. Binger Pest Control, 401 So. 2d 1310 (Fla. 1981). This analysis teaches that the question in such instances is whether prejudice "would accrue." The objecting petitioner argued instead that prejudice "could accrue." That is not the same thing. 

There is an old adage "When life gives you lemons, make lemonade." The surprised attorney in this instance was essentially burdened with lemons and strove valiantly. Whether he had not read Binger recently, or whether he had misunderstood it, one will never know. But he raised the argument that this “surprise“ had the potential for significant prejudice. In other words, he did the best he could in that moment. He did not prevail. 

I am certain that in some circumstances, one could make an argument of “actual prejudice“ regarding being called out of turn to testify. However, it is suggested, that such an argument might be very difficult. The witness at issue here was a party to the legal proceeding. He was ready and available in the venue and represented by counsel. He was intimately familiar with the proceedings, allegations, and likely the prior rulings already rendered. Demonstrating "actual" prejudice would be difficult.

However, any of those points might be very different for a witness who is not a party to the case. Furthermore, the issue might be entirely different for someone who is not named in any manner in the pre-trial stipulation (a complete surprise as compared to this more mundane timing surprise). Thus, it may be critical that the petitioner in this matter had listed himself to testify, and therefore seemingly was expecting to do so when he arrived at trial.

The critical points from this anecdotal example are reasonably simple. First, when trying lawsuits always be prepared for anything. Trials rarely go precisely as planned, and it is the surprises and your responses in that moment that will be critical. 

Second, never hesitate to raise an objection regarding process or procedure. The worst case is that such an objection may be overruled. Nonetheless, the attorney must strive for an appropriate process, and if possible one that is advantageous. If the judge takes an unexpected direction, raise the objection and make your point. The maxim is that "you will miss every shot you do not take," Wayne Gretzky. 

Third, great attorneys will keep a small toolbox of “just in case” at their fingertips. Back in the day, this was usually a legal pad long-dog eared from perennial storage in a briefcase. The pad was rarely removed and was perhaps more of a security blanket than anything else. But, it was there. Today, it could be a Word document, flash drive, or folder on a digital desktop. 

The point is its contents. There, the careful lawyer keeps stored a handy reference to authorities like Binger. This allows counsel, a ready reference to an authority, which may provide the foundation to prevail on a procedure point. This cannot be encyclopedic if you hope for it to be effective (keep it short and remain familiar with it). However, there are a handful of such cases that are cited again and again by trial judges.

The trial was otherwise interesting in several regards. Future posts will address subjects that were suggested by these proceedings. In the end, there were lessons and reminders for all participants. And, if they learned nothing else, they learned judges can be unpredictable and the key is to remain attentive, responsive, and prepared. The trial counsel's job is to be ready, but more importantly to react to the challenges of surprise. 

 

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