Its Always been a Matter of Trust

World DNA Day was April 25. This day marks the "anniversary of the publication of DNA double-helix structure in Nature from April 25, 1953 by Dr. James Watson and Dr. Francis Crick." So, the publication is 72 years old.

It was not as long ago that the scientific community figured out how to decode that chemical makeup - our Deoxyribonucleic Acid (DNA)(2003). This is a signature for each of us. We may have great similarities in our personal chemical composition, but we have also learned that we are each somewhat unique. 

That has made for a great deal of legal activity. DNA is not new to this blog, see Nature v. Nurture (December 2018) and the posts cited there. See also DNA, Pharmacogenetic Testing, and Louisiana (August 2018). Despite all it might do for us, Personalized Medicine (September 2019) outlined challenges with privacy and more.

Despite your DNA being very personal and revealing, a great many have intentionally added their DNA to databases. This has resulted in many instances of proving someone's innocence and examples of tracking criminals using "familial DNA" to narrow suspect populations. See Science, the Right to Privacy and Big Brother (June 2018), and an ongoing prosecution in Idaho.

The engagement of DNA for the exoneration purpose is usually a matter of sequencing DNA evidence from crime scenes and comparing it to samples from someone convicted for a crime. This process is focused on the guilt of a particular person. As of 2025, this testing has exonerated "614 wrongly convicted people," according to the Innocence Project. That article is updated annually.

The familial DNA use is broader. It is dependent on databases of DNA testing results. Like much else in the Internet age, it has been voluntarily submitted. And with its vast potential to impact the test subject and their relatives, privacy is an issue. When you submit a sample, you entrust your privacy and your relatives. 

How much is enough? A Florida woman vacationing in Paris a decade ago was a robbery victim. The British Broadcasting Corporation (BBC) reported recently that officials arrested a group of miscreants for the crime. They were traced by "DNA traces left at the scene." This was apparently on "plastic bands used to tie the wrists" of the victim, according to Yahoo News. Imagine, merely touching something may be enough to lead the police to your door. 

There is a wealth of DNA information available. The National DNA Index includes over 18 million "offender profiles" according to the FBI, perhaps more. According to MIT Technology Review, over 26 million had voluntarily opted into the commercial databases by 2019 (Ancestry, 23andMe, Etc.). The volume continues to grow. 

That seems to pale compared to the 346 million people who live in this country. Nonetheless, Science noted that a database of only "1.3 million" would afford some access to about "60% of Americans of European descent." This is not because that 60% are in the database, but because someone that is their "third cousin or closer (is) in this database." if 1.3 million equates to 60%, what does 18 million, 26 million, or their potential combination of 44 million provide access to?

Ancestry.com has been a major collector of DNA samples. Customers who submit there can use the similarities in their samples to connect themselves with family trees, historical ancestral lines, and present-day relatives. That company proclaims that "trust is our top priority," and "privacy is a top priority." They proclaim that "personal information (will be managed) with integrity and respect."

Millions of Americans have sent in DNA samples. The largest database in 2019 was Ancestry, and that appears still true. MITTechnology Review claimed "26 million (had) taken at-home ancestry tests" by 2019. The Federal Bureau of Investigations has been collecting DNA also. It is filed away in a "National DNA Index System" that law enforcement can use for individual or familial research.

However, the first opportunity for DNA access was 23andMe, a company founded to help people "access (their) genetic information and truly understand what it means for (their) health?" This voluntary process was also intended to "help to accelerate genetic discoveries that offer the potential for new insights and treatments."

People paid this company to sequence their DNA. They had curiosity and questions. They bared their very essence to answer those questions. 

23andMe grew and celebrated. It became a $6 billion company after a public offering. It was challenged by singularity, though. There were few repeat customers. Many businesses have thrived through designed obsolescence (the product wears out and you need a new one). But 23andMe was designed so "that no consumer should need to purchase more than once," according to the Observer. One might say this company had designed obsolescence.

Then, in March 2025, the company spiraled into bankruptcy. It is striving to sell itself, to continue as a business with other owners. Or, like so many other companies, its parts may be sold separately (remember when Hostess "broke up into bits?").

CNN reports that with the bankruptcy and uncertain future, the "15 million customers" who voluntarily sent 23andMe DNA should "request the deletion of their accounts and data from the site." This is recommended by "consumer advocates" to prevent the DNA "ending up in unexpected hands."

They pontificate that potential exists that people's DNA data will end up in the hands of "the highest bidder." Why would someone want the genetic information of 15 million Americans?

CNN says that data may be of interest to health insurers, life insurers, and others. The California Attorney General issued "a consumer alert in response to the bankruptcy, urging users of the site to consider deleting their accounts." Suddenly, this Attorney General is concerned. But, you might ask, what changed?

Pat Benatar is resonating in my head as I type: "It's a little too little, it's a little too late." (Little Too Late, Chrysalis,1982). That song laments the tears of regret, and Benatar's conclusion that the tears are too late. Regret is easy, but is it avoidable?

The point is that 23andMe has a privacy policy. The company has a commitment to its customers and has promised not to sell their data. They have committed to insisting that whoever buys or acquires their information trove will honor that privacy policy. Nonetheless, CNN reports that "the policy also states that it can be changed at any time."

Thus, 23andMe or whoever comes to own its assets (your DNA data) can change their privacy policy and do with it what they wish. And, yes Virginia, they always could. 

And thus, Pat Benatar fades from my head and Billy Joel comes raging in with A Matter of Trust (1986). He addresses emotions, beliefs, betrayal, resistance, and doubts. He concludes, time and again, with the reminder "it's a matter of trust." Even when there is "a passionate start," when there is "recovery," when there is "faith," there will nonetheless be "a moment of truth" - "it's a matter of trust."

As millions now ponder the protection of their information, one wonders why consumer advocates only now sound their alarm. There is conjecture that the purchaser of 23andMe could change a privacy policy, but 23andMe always could. Any of the DNA companies always could. The FBI always could, as it collects and catalogs. And, there is real potential that your DNA has already been added to various databases, or that your cousins' has.

The bankruptcy of this formerly $6 billion company has not changed anything. It has "always been a matter of trust." And on that trust, samples will continue to be obtained, analyzed, cataloged, and stored. You can no more prevent it than you might stop the sun from rising. 

Happy World DNA Day 2025.

Disclosure Requirement

There is a reasonable volume of Notices of Disclosure hitting our inboxes. The intent is for information, and there is some likelihood that they have relevance in some proceedings. The Florida Bar likely perceived that in recommending disclosure rules, as did the Supreme Court in adopting them. That said, some efficiencies might be considered in any event.

Most of the Notice of Disclosures filed cite the Rules Regulating The Florida Bar, specifically Rule 4-7.10(g)(3). They note that the law firm, Name, Name, & Name, is part of XYZ Corporation and that all lawyers at that firm are employees of XYZ Corporation. It is a reasonably perfunctory requirement. The one flaw is that there is no Rule 4-7.10(g)(3). There has not been for over a decade:

On the one hand, it is laudable when attorneys file pleadings that cite authority. Any motion, trial memorandum, or other request for relief will always be more powerful and persuasive if it includes citations to authority. The premise is a sound practice and should be encouraged. But when you cite authority, it is always a good idea to make sure it is updated.

Forms are convenient.

Copying your last argument is a normal legal practice.

Failing to update your authority is lazy, unfortunate, and potentially fatal.

There is no rocket surgery involved. The Florida Bar publishes these rules. The image above was readily cut from the rules. It substantiates that for almost a dozen years, there has been no Rule 4-7.10.

A simple Google search for the case number (SC11-1327) brings one immediately to the Supreme Court Order. The Court clearly "delete(d) all rules in existing Subchapter 4-7 of the Rules Regulating the (sic) Florida Bar."

The new rule was numbered 4-7.21 (Firm Names and Letterhead). The applicable portion remains (g)(3) in this context. That is the subpart lawyers erroneously cite using the old reference "7.10(g)(3)." The subparagraph requires:

"(3) the name of the insurer and the employment relationship must be disclosed to all insured clients and prospective clients of the lawyers, and must be disclosed in the official file at the lawyers’ first appearance in the tribunal in which the lawyers appear under such name;"

The intent is reasonably clear, that the "clients and prospective clients" need to know about relationships. Thus, disclosure of the fact that lawyers are employees of XYZ Corp. despite the letterhead and firm name being Name, Name, & Name makes sense.

There is also logic in the requirement that the relationship "must be disclosed in the official file." There is the potential that a "court" might need or benefit from this information. There is also the potential that a relationship between XYZ Corp. and Name, Name, & Name might present complexities in a jury environment where mention of insurance could be problematic.

But that is where the logic of the Notice of Disclosure stalls in the workers' compensation practice. There are no juries here. In workers' compensation, everyone knows that there are insurance companies; says so in the statute. The name of the carrier or servicing agent is in the style of every proceeding and is repeated in virtually every filing. The existence of a carrier in each case is no mystery.

The relationship between XYZ Corp. and Name, Name, & Name might not be so clear in any litigation including a workers' compensation case. Thus, the "appearance in the tribunal" makes sense. This Office is not a "court," it is a "tribunal." See Candor, Quarts, and Consistency (January 2025).

So, Name, Name, & Name are notifying this tribunal as required by rule.

The incredibly illogical point, beyond the lazy references to non-existent rules, is the filing of a "Notice of Disclosure" separately. The Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications require the filing of a Notice of Appearance. There is no prohibition regarding what that Notice can include.

Point in fact: you may include your Aunt Gertude's recipe for sponge cake in your Notice of Appearance if you wish (I am not recommending it). And, in that logic path, the required notification of the relationship between XYZ Corp. and Name, Name, & Name may be included in the Notice of Appearance. You may make it a separate paragraph with a heading in bold if you wish to highlight it.

There is nothing in the procedural rules to preclude that. There is nothing in 4-7.21(g)(3) that precludes that. Intriguingly, some lawyers do include their disclosure in the Notice of Appearance. Some find this efficient and effective (it is both). But, some who include this in the Notice of Appearance nonetheless file a separate, redundant, and duplicative Notice of Disclosure that says the exact same thing.

Redundant and duplicative are irrelevant and unnecessary.

Rule 60Q6.108(1) is reasonably clear "Duplicate filings will not be docketed and will be destroyed."

This makes sense if the filings had duplicate titles. Filing two "Notices of Appearance" would be inappropriate and unnecessary. Some might find it laughable. Filing the same information in two documents is no more appropriate because the title of one is "Notice of Appearance" and the other is "Notice of Disclosure." In either event, there is duplication and redundancy. In either, there is illogic and waste.

There are key points to this post.

First, there is no reason to file a Notice of Disclosure. Include any necessary disclosure in the Notice of Appearance.

Second, forms and pasting are dangerous. Any citation of authority may require updating. Statutes change, rules change, and decisional law is overruled and distinguished. Failing to notice such a change for a dozen years is not complimentary or effective.

Simple Math is The Point

The May 21, 2025 Point will address an intriguing and vexing problem in the world of workers' compensation. Join us for:

The Point – Doctor, Doctor, Give Me a Clue, How Can Workers’ Comp Ever Attract You? 

Even with dramatically decreasing injury rates, see The Numbers - Spring 2025 (April 2025), the volume of physicians is never sufficient, see Bid Day 2025 (April 2025). We will discuss this with Ramona Tanabe, the CEO of WCRI, and Dr. Michael Choo, CMO of Paradigm Corporation. 

The challenge is economic, regulatory, and more. 

There are too few in the legal world who have the benefit of studying economics. I was blessed to attend a business school that insisted I take economics classes and which provided ancillary experiences with guest lecturers and programs. Economics is among the least understood topics among lawyers. Too many limited studies to history, English, political science, and other law-school approach curricula while ignoring this imperative fundamental.

In the purest form, economics professors introduce the idea that our time devoted to one task is necessarily not devoted to other tasks. The simple dichotomy they propose for introduction is an economy that may produce either "guns or butter." This is an admitted diversity, as the ingredients for each are unique. But the time to produce a bullet is time not devoted to an ounce of butter.

In the realm of manufacturing, then, the "guns or butter" illustrates the challenges of allocating a resource (time) to production. The models get more complex, but to some extent, build on this dichotomous illustration of potential binary choices. There are many alternatives to producing one bullet, and that is where the binary is abandoned and the complexity expands.

Nonetheless, the same binary choice could be used as regards other resources. For every automobile you produce, that is steel you cannot use to produce a tank, ship, or bridge. The base resource is available for devotion to any one purpose, and there are a variety of variables that will play - e.g., one bridge requires more steel than one car. As our economic systems pull from one alternative to another, choices are being made, demand is engaged, and price will be impacted.

Price is driven by the interaction between demand and supply. There is a reason that sand sells for perhaps $40 per ton and a one-carat diamond sells for well over $1,000. Both are useful resources that could be put to various uses. But one is more scarce (or perceived to be), and thus the price is higher. Supply goes down, price goes up. Price goes up, demand goes down. As the relationships shift, markets find an "equilibrium price" at which there is an efficient relationship between supply, demand, price, and the market clears. 

This is a simple (relatively) set of postulates and proofs. Unfortunately, there are additional challenges from market regulation and management. Laws are part of protecting consumers, managing markets, and even regulating production (supply) and price. 

Simple facts include:

• In America, you cannot declare yourself a doctor; you must go through many years of school, residency, and more. 
• In the 21st century, medicine is evolving rapidly, and there is demand for doctors in the research and development industries of drugs, testing, and more. 
• In the practice of medicine, there are procedures and treatments that are highly specialized, require specific skills and tools, and can demand increased prices due to demand and supply. 
• In a world in which mistakes and errors are subject to tort liability, there is a drive to avoid misdiagnosis and untoward treatment; doctors practice some degree of "defensive medicine" to diminish their risk.

To further complicate, the vast majority of medical care in America is paid for by someone other than the consuming patient (87.4% = 31.3% private insurance, 23.6% Medicare, 19.2% Medicaid, 13.3% other third party). There is a disconnect between the service recipient (patient) and the payer. 

In an economic sense, we make rational choices when expending our resources (do I spend the next minute making an ounce of butter or a bullet?). We make the same choices in our expenditures (do I buy more bullets or more butter? More sand or diamonds?). But when we can consume without cost (as the third party is the payer), does that encourage economically sound consumption, or does it encourage overconsumption?

At the outset of the story, we have too few doctors in gross terms. The Association of American Medical Colleges (AAMC) says that the deficit, despite all these contributors, is primarily the result of aging. The patient population is aging (lots of Boomers now seeking care in their "golden years"), and lots of doctors are reaching retirement age. It is, some say, a perfect storm.

The AAMC says, "The United States will face a physician shortage of up to 86,000 physicians by 2036." That is a significant population. The main impacts of this are expected to be in rural America. Nonetheless, there will be impacts both urban and rural, primary and specialist, and it will impact workers' compensation. 

So, from the frank beginning of too rew, we add competition for obstacles to market entry, talent diversion to specialties and research, and resource allocation complications from defensive medicine. Perhaps these simply make the "perfect storm" more perfect (can you be more than perfect?), perhaps a flawless storm? 

Whenever there is discussion of impact, the question of oxen arises. There is trepidation about impact, but then "whose ox is being gored?" If my neighbor's house burns, that is a shame, but if mine burns, that is a tragedy. If my ox is not the victim, do I care? More to the point, do I care enough? Do any of us?

In the end, the insufficient physician population will make it difficult for patients. More will wait for appointments. More will wait longer for appointments. More will see ancillary providers (Physician Assistants, Nurse Practitioners, etc.). More will give up and go without. More will lament their geographic, economic, and other disadvantages.

The payers will also face an impact. As supply is insufficient (like diamonds), the price of medical care will rise. That higher cost will factor secondarily into premiums (health and workers' compensation), which will contribute to product and service prices, taxation demands, and other economic perspectives. 

The path to becoming a physician may be from 11 to 16 years, according to AAMC and Kaplan. That means action today might (2025 +11) focus us on the 2036 shortage, but to some extent, we are likely already too late to avoid all the implications. We may ameliorate, diminish, and manage, but some future shortage appears inevitable from our 2025 perspective. 

What does all this mean for the quality and quantity of care? How will this impact the workers' compensation systems, the lofty goals of timely remediation, and return to work? This is The Point, and we will gather to discuss it all with two imminent speakers on Doctor, Doctor, Give Me A Clue (Kudos to Robert Palmer, Bad Case of Loving You, Island Records, 1979)(and Kudos to Robert Wilson for his adaptation of the tune).

Join us May 21, 2025, at 1:00 EST. Sign up here!

Making the Divide

In 1804, Tom Jefferson talked a couple of guys into walking across North America. Lewis and Clark walked about 8,000 miles and pioneered a track that thousands would follow. More on their relevance to litigation later. No, I did not know them personally, but thanks for asking. 

The point of litigation is to reach a resolution of conflict. There are many degrees of resolution that range from capitulation to vanquishing. In other words, either party can abandon the dispute at any moment, concede, or pursue it to its end regardless of consequence, even beyond all reason.

The Romans have been accused of the extreme: salting the earth following victory. General Sherman's march to the sea has been cited as an example of destructive, pillaging, and extreme victory. Such tactics may satisfy some present desire but may also haunt you in future conflicts. 

A claims professional once exalted himself in a conference presentation for pursuing prevailing party costs against an indigent, homeless workers' compensation claimant; he hoped to recoup about $500 in defense costs. He explained that his client pursued costs on every victory, regardless of any consideration or consequence. 

After, I asked him if his client was related to King Pyrrus, and he stared at me vacantly. We do not have to learn from history, but it is less painful than experiencing everything ourselves. 

Litigation need not be so extreme, but we have all seen it in a figurative context. More often, these "at all costs" strategies or mentalities are seen in isolated instances, likely as a threat more than an eventuality. They are leveraged as encouragement for the more amenable outcome of capitulation or something closer to it. 

Nonetheless, there have been some lawyers over the years who came to have reputations for pyrrhic actions or reactions. I remember one reputation repeated periodically about an attorney who "never met a case he couldn't forfeit." Yes, there are extremes, but most litigation ends with compromise between them. 

The litigation process is usually a great narrowing. In the beginning, there are broader potential grievances and defenses. These are pleaded, without benefit of proof, in the quintessential of American due process - notice. The potentials, however remote or unlikely, are put on the table as allegations, and the various parties can then begin the discovery journey in the hope of finding Shangri-La, Mordor, or some other desired destination (real or imagined).

The journey is discovery and motion practice. The journey begins with the best of intentions and preparedness. Like those who undertook the great westward migration along Lewis and Clark's Oregon Trail, many litigants find they have packed (pled) too much. The path from Wayne City, Missouri (petition/response) to Oregon City (trial) invariably becomes littered with detritus from that overload.

The travelers begin with everything they might need (over-disclosure for the sake of due process and notice), but as they travel, there is circumstance, revelation, reality, and realization. Discovery brings it, refines it, and educates the voyagers. The wise begin to see what is what and what is not. Issues and defenses are jettisoned to lighten the load, as are documents and witnesses.

When the traveler reaches Independence Rock, Wyoming (a moment of truth), a time of reckoning approaches. Here, the great plains begin a steeper tone, and the challenges of the trail increase. Any excess burden, weight, and baggage that has been troublesome across the plains may now become an imperative. 

The journey to this point has been significant and should never be minimized. The traveler at this stage has crossed over 1,200 miles, well over half the trip. But reality confronts at Independence Rock. The terrain becomes steeper, the way harder; as the young folks say these days, Independence Rock is when "it just got real." 

From Independence Rock (6,028 feet ASML), the journey now ascends another 1,000 feet to the continental divide. The ground becomes more challenging, and the terrain more uncertain. These are the Rocky Mountains, the moment of truth before the culmination of the journey. It is a prime time to eject flotsam and jetsam, to lighten the load and focus on what is truly important or imperative.

The traveler is aided in this by the experience of the long journey from Missouri. Much can be learned walking beside a wagon for 1,200 miles. Unfortunately, our minds can also play tricks on us. We may have "sunk cost" affinity for some of the junk in the wagon, and having dragged it this far, we may be reluctant to leave it at the trailside. How do we justify buying that junk to simply abandon it now?

Nonetheless, we pause at Independence Rock, as we do on the verge of the pretrial, and we need to take a candid, introspective, and self-effacing look at the wagon, its contents, and our resolve. The journey enters its home stretch, and there are both risks and benefits still in our kits. What will we ultimately drag into Oregon City, to trial, at the end?

Perhaps you cannot prove a claim or defense. The path (discovery) has not been kind to it. It has not received the attention you initially intended. It has bounced about in the wagon and is scarred, neglected, and worse for wear. Put it on the trailside.

Perhaps there are witnesses who have not made it to Independence Rock with you. Maybe they set out with you, but fell by the wayside. Or you had hopes of coming across them on the trail, catching up to them when you left Missouri, but that did not pan out. Perhaps they simply did not turn out to be what you anticipated once you did meet them. Put the potentials of them and their testimony on the trailside.

This is Independence, a reckoning. The time has come to go through your case. The "Justin" case. There, you have kept various documents, diagrams, maps, and more. There you have your notes, ideas, and inspirations. With it all, you were prepared for the potentials and perils of your journey, regardless of how remote or unlikely. You were prepared and hopeful they would bring you results. Experience in this journey has taught you that many are now irrelevant, redundant, and worthless. Sure, you paid for them (sunk cost), perhaps dearly, but put them by the trailside.

Your ascent to the Divide, the pretrial, should be about lightening your load, narrowing your foci, and concentrating your effort. As you later descend into Oregon City (trial), you will be better for those decisions at Independent Rock as you prepared for the Divide (pretrial). 

With sound reflection at Independence, you will perform better at the Divide. You will more likely emerge from the Divide energized and focused on the truly important, rather than exhausted from hauling all the detritus up that hill. And you will be more capable, focused, and effective as a result.

In Independence Rock, facing the Divide, be frank, forthright, and straightforward: with your client, your opponent, and yourself. The journey across the plains was arduous and challenging, but Independence Rock is your moment of truth. Here you must singularly focus, or you may not make the Divide. If you do not make the Divide, the pretrial, your path is some form of capitulation. You cannot reach Oregon City, trial, without passing through the Divide. 

Far too often, the Divide is broadly ignored by lawyers. They delegate the packing and preparation to a team of paralegals, associates, and clerks. Many do not even look at the baggage, more or less think about its contents. A stipulation is completed with everything but the kitchen sink, and the blithe, indolent lawyer simply presses up the path obliviously. They have not planned to fail, but have certainly failed to plan. 

Having grunted and groaned, strained and stretched, some of those lawyers nonetheless stumble eventually into Oregon City despite themselves. They awaken to find they have much they don't need. They are exhausted from the trip, disappointed in their opponent's perseverance, and remain in a pitched battle. They are disorganized, disoriented, and too often disappointed. They have wasted energy, effort, and time dragging the detritus up and over the Divide.  

The view back down the trail is an easier panorama than the uphill perspective that brought them. In retrospect, it is clear that opportunities and advantages were foregone at Independence and the Divide. Regret is inevitable; disappointment is likely. 

I recently came across a pretrial stipulation with dozens of defenses. I have seen pre-trials with an equal number of vague claims, often internally contradicting (which is often unavoidable in petitions, but not so much a month before trial). In each example, there was likely some flotsam and jetsam.  

If you cannot figure out where Independence Rock is, fear not. We will send you a note, a warning: "Notice of Pretrial Hearing." That is very simply the equivalent of a road sign on the path: "Independence Rock, 5 miles." When you see the sign, start to think. When you think, consider what you really need and want. Define, design, and refine. Prepare yourself for the ascent and "be real" with yourself. 

Or, carry all that stuff to Oregon City and dump the whole wagon load in the judge's lap. Let me know how that works out for you.

$#TE^RE&*(!

It is possible that swearing may increase your credibility, see Credibility from Vulgarity (October 2021) and Crass Credibility (December 2023). But, society is generally polite, and it is reasonable to question When is Profanity Appropriate (April 2017). In essence, it seems profanity is gaining acceptance and persistence. Some uses are admittedly funny, and the argument can be made that such words are sometimes poignant.

One of the funniest legal films of all time, From the Hip (De Laurentis, 1987) features an intense legal argument over the engagement of a profanity to describe one of the litigants. There is discussion and debate, but the protagonist (Robin) contends his preferred profanity is "the only word that accurately describes the man. ... Everybody thinks he's an _________."

Opposing counsel challenges the use of the term, leading to the following soliloquy:

Jo Ann: I object. Are you saying the president of a bank can't articulate his thoughts without using profanity?

Robin 'Stormy' Weathers: What I'm saying, sir, is that there aren't many words to describe the particular slime that your client oozes.

Jo Ann: Objection!

An in-depth legal debate ensues. It turns out the two lawyers had staged the whole obscenity debate in that plot, but funny nonetheless.

The latest news, however, is that swearing is good for your health. Remember when eggs were good for you? Or, when they were bad for you? Science and studies have steered to and from a number of things over the years: bacon, beef tallow, etc., etc. But swearing?

Time magazine reports that science now tells us that "Cursing induces what’s called hypoalgesia, or decreased sensitivity to pain." We can tolerate discomfort, frustration, and more for a longer period if we utter "curse word(s)" while we do so. They are more helpful to us than "a more neutral word." To be fair, many curse words are fairly neutral; some are downright meaningless.

Beyond enduring pain, Time claims you can "improve in exercise performance" with the utterance of a good swear word. Somehow, vulgarity brings confidence and commitment?

There is indicia from a European study that seemingly supports that swearing can help you regulate your emotions. It is not clear if you must swear in a European language to enjoy the benefit. Ever wonder why the first words ever learned in a foreign language are expletives? Anyway, there is some degree of release or catharsis from screaming an expletive at a passing motorist who cannot even hear you.

One psychology professor says we should "think of swear words as being like a box of tools." They can be strategically employed to benefit us. This may be in the release of frustration of the "breaking (of) social taboos" or in establishing camaraderie and connection with others (let's all swear together).

All that said, the authors are not "all in" for swearing. They caution that some social situations, interactions, and relationships may remain poor venues for swearing. There is some suggestion that questions remain of "swearing etiquette" (Emily Post is spinning in her grave), "social hierarchy," and 'power dynamics." Yes, it is more appropriate for some to swear than others.

So, we are confronted with the epiphanic conclusion that our suppression of our vulgarity has been self-limiting and even harmful. Apparently, it is good for us to devolve into the profane and offensive. That said, stay tuned for the next report that switches direction and tells us swearing is bad. But, in the meantime, shout it out while science is on your side.

$#TE^RE&*(!

Who knows, it might just build your credibility - or make you a pop star! Or it might get your posts blocked on Linked?

Follow the Law

"Follow the law" or "Follow the rules." It is somewhat uncommon to receive a suggestion for a blog post that says "follow the law" or "follow the rules." For whatever reason, some lawyers resist the law and rules, seek relief inappropriately, and frustrate the litigation process.

The legislature added to Chapter 440 years ago, section 440.25(1):

"if additional petitions are filed after the scheduling of a mediation, the judge of compensation claims shall consolidate all petitions into one mediation."

The rules effectuate this statutory requirement in 60Q6.110(1):

"All petitions and claims pending at the time a mediation conference is held are deemed consolidated and will be mediated at that conference."

Nonetheless, there appear to be questions and concerns about the statutory and rule provisions. To be clear, the "shall" in section 440.25(1) means "shall." It is plain language. 

This does not mean that the petitions will be consolidated if the parties agree, if it is convenient, or merely "if." The petitions filed prior to the mediation "shall" be consolidated "into one mediation." 

The petitions that are "pending at the time a mediation conference is held ... will be mediated at that conference." This is not permissive - not "may"; it is a clear "will" be mediated. This means that the mediator has no alternative. Asking the mediator to ignore the law or rule is inappropriate and improper.  Asking the mediator for relief is not supported by any statute or rule. 

In one intriguing instance, a lawyer reportedly filed a petition during mediation. This is not a "best practice" and may be disruptive of the process. Nonetheless, if that occurs, the petition is "pending at the time a mediation conference is held."

The outcome? There is no statutory or rule mandate that any party agree to anything in mediation. Mediation is mandated by section 440.25, but that extends to (1) attending the mediation, (2) turning on the camera so the participant is visible, and (3) hearing the mediator out regarding the process and purpose of mediation. Mediator Ethics Advisory Opinion 2021-010. 

No party is compelled to reach an agreement or to concede to any degree in mediation. Certainly, the process is incredibly effective and the chances of resolution diminish when any party is afforded limited or no time to consider claims, defenses, evidence, arguments, or implications. Short-notice PFB filing may fail to achieve resolution or progress, as could a short-notice Response or other addition of defenses.  

The outcome of a short-notice effort may be an impasse. Unfortunate, but true.

Or, the parties may find ground worthy of their attention and make progress on issues that have pended longer. They may agree to reconvene on unresolved issues, short-noticed or not. 

In other instances, the short notice may not derail or delay, and the mediation may lead to an overall resolution, despite the challenges. The potential outcomes do not change because of short notice, but the probabilities may.

In short, the potential outcomes remain on the table in any event. The appearance of an unexpected issue(s) or perspective is not novel, and it does not bind or compel agreement. Nonetheless, the statute and rules require that the issues be mediated despite the short notice. 

Questions of professionalism, zealousness, and good faith are for another day and may have implications beyond this case or this mediation. 

That said, there are no exceptions stated in the statute or rules. The provisions are clear and unequivocal. If there is some reason or circumstance that requires adjustment or change, the parties can seek "relief" from the assigned judge under Rule 60Q6.115(1)("Any request for an order or for other relief shall be by motion."). 

Nonetheless, it is inappropriate to seek relief from the mediator. There is no rule that allows a party to seek an order or relief from a mediator. This is true in the context of ignoring this statute and rule. It remains so in other contexts, such as exceeding the 130-day statutory requirement. Rule 60Q6-110(2)(a). 

The path is reasonably simple. Follow the law, follow the rule, or both. Mediate the pending petitions. Don't ask mediators to exceed their role, to ignore the law, or to break the rules. 

Never Give Up, Never Surrender

There is a potential for delay and redundancy in workers' compensation litigation. Periodically, there are litigants who are very reluctant to stop litigating. 

Winston Churchill was credited with "never, never, never give up." The writers of Galaxy Quest (Dreamworks, 1999) picked up that with the heroic mantra of the crew of the starship Protector: "Never give up, never surrender!"

I periodically think of these two quotes about being steadfast and committed. There are examples worthy of discussion. 

In one, a 2019 PFB was followed by the withdrawals and appearances of various counsels.  An eventual final order in 2021 denied the benefits. More petitions followed, as did motions to dismiss and for summary final order. 

Then came a "Motion for Review," essentially a notice of appeal, in 2022. There was a notice of the cost of the record, followed by a notice of failure to pay the cost. There was an eventual record, and finally a 2023 decision from the court, and then a mandate from the court in 2024. 

That decision was followed by an appeal to the Supreme Court,  which was denied. That was followed six months later by a Supreme Court order denying a "notice to reopen the case."  Undeterred by the Supreme Court's denial to reopen, there was then a similar request to the District Court to reopen. 

It is worth remembering that it is exceedingly rare for the Florida Supreme Court to address workers' compensation. See Florida' Supreme Court in Workers' Compensation (July 2018). As that post nears its decennial, there have not been notable additions to the list published there. 

There is, some might say, a "never give up" illustrated in such an extended history. There is some element of "never surrender" when you are seeking Supreme Court review in any instance. Nonetheless, this example spanned merely years. 

Consider instead a complaint alleging issues of constitutional law (state and federal), federal statutes, state statutes, and actions in a variety of courts? One about "due process under the law, false statements, defamation, legal insufficiency of prior proceedings, bias, racism, malice, and more." In 2024 such a case was reviewed, with the Court's denial ruling in 2025. 

That story begins with a settlement order entered in 1991. Then these allegations were raised in 1993, seeking benefits and striving to set aside the settlement, and the claimant did not prevail (order 1). 

The claimant returned with a petition for benefits resulting in a 1996 trial. The attempt to reopen the case was not successful (order 2). The District Court of Appeal reviewed that denial and affirmed. An attempt to have the Florida Supreme Court review was also unsuccessful. 

The claimant returned to litigate the issues again, and following a 2003 trial, his effort to set aside the settlement was denied (order 3).  This third order was reviewed by the First District Court of Appeal and affirmed in 2004.  

A 2006 petition led to another hearing, and yet another dismissal (order 4). Shortly thereafter, another Judge of Compensation Claims reviewed the case and entered a 2007 order (order 5) concluding that “claimant has litigated all issues relating to his settlement." The judge also denied the Claimant’s motion to remove the case to Federal Court (order 6). 

The fifth order was affirmed by the District Court. And, review by the Florida Supreme Court was again denied for lack of jurisdiction. 

The claimant then filed a “complaint” in 2022. The judge noted “numerous” efforts to “set aside the settlement and reopen his case.” These were “addressed in various orders” as well as reviewed by the appellate courts. After consideration, the assigned judge “denied and dismissed with prejudice” the “claimant’s requests for relief.” (Order 7).  

Ongoing pleadings reasserting the various allegations led to an order striking filings and denying relief (order 8), then another (order 9), and yet another (order 10). The District Court reviewed yet again before dismissing this latest appeal in 2024. 

Winston just keeps playing in my head as I write this: never, never, never, never, never, never, never, never, never, never, never, never, never, never, never, never, "never, never, never give up." 

There is much to admire in persistence and perseverance. There are many instances in which people conclude they have not been afforded their day in court, their chance to expound. That opportunity to be heard is the fundamental purpose of the Florida OJCC.

And yet, there comes a point when the dispute is over. There comes an end, win or lose, when the opportunity to be heard is over. These "never give up" examples illustrate this might take decades. This all also demonstrates that finality can be elusive. The desires and allegations of parties can be deeply ingrained and may motivate persistence and repetition.

Bid Day 2025

The Association of American Medical Colleges (AAMC) was founded in 1876, a non-profit focused on "transforming health through medical education." Its members include "172 ... medical schools, 490 teaching hospitals and health systems," and over "70 medical societies." 

For reference, "There are currently 160 allopathic (MD) medical schools and 42 osteopathic (DO) medical schools in the US." Thus, the only actual path to becoming a physician is through the AAMC process. And while there "are nearly 1,700 teaching hospitals," only "300 are considered to be major teaching hospitals." In short, the AAMC controls many and perhaps most medical students. 

The AAMC describes the residency process as an application activity followed by "interviewing at the programs that offer you an invitation." So, across the country, medical students enter this process and build a portfolio of applications, curriculum vitae, recommendation letters, transcripts, and more that is reviewed by those in which that student has an interest. 

In the residency process, the National Resident Matching Program (NRMP) is engaged. There is agreement required for medical students to enter this program, which "ensures that participants, applicants (sic) and program directors in particular, understand their rights and responsibilities." 

Thus, despite the vast population of controlled schools, students, and programs, a student could elect to go it alone. While an actual alternative, one wonders if it is in any way a realistic alternative. Can a student get a residency as an independent, or is the voluntary nature an illusion?

The National Matching Program is a non-profit to "help ... promote fair and transparent selection processes for applicants and hiring/training groups." Whatever else it is, an effective mandate or not, it is undeniably a program that constrains the free market opportunities of applicants and programs. The process alters the free market and constrains both. 

Some see it as violative of the anti-trust provisions of American law. The House of Representatives has begun looking into this market constraint, and recently held hearings. It reportedly concluded that the process is "binding" and noted concerns with the facilitation of sharing information and potentials for impairing negotiation and competitiveness. 

The NRMP then "uses a computerized mathematical algorithm, the 'matching algorithm,' to place applicants into the most preferred residency and fellowship positions at programs that also prefer them." Following a 2002 lawsuit, Congress passed an antitrust exemption for this process. It is legal for residency programs to collude with each other to constrain opportunity, compensation, and competition.

Is there any other educational process or system that enforces a singular and systemic path into professional service? Some will take issue with "enforces," but the figures support that there are almost no schools that do not participate and few major residency programs. Further, the "binding" noted by Congress supports the "enforce" adjective. 

The Match proponents will nonetheless likely argue that this program is entirely voluntary for schools, students, and residency programs. In 2023, however, the American Medical Association concluded in a resolution (#302) that "The Match poses significant anticompetition concerns." The Sherman Antitrust Act (1890) was mentioned. There was a discussion of better information and access for medical students. 

The NRMP says its process "is unique among national medical education organizations," and it has been the subject and study of Nobel-Prize-winning research." In conjunction with placement, "the NRMP began collecting voluntary applicant demographic data in 2021" with an aim "to improve diversity, equity, inclusion, and belonging (DEI-B) in the transition to residency." The report of its Match Summit Meeting in December 2023 stresses this.

The matching process is apparently about DEI - fundamentally so, according to the AAMC and NRMP literature. With the volume of federal money that flows to schools and medical care delivery systems, it may be that recent federal changes could affect the Match.

An aside on Nobel primacy, that is seemingly inferred, is noted. The Nobel is not universally conclusive on any front. There has been ample room to criticize various recipients. Being the "story of Nobel ... research" is no more conclusive of validity or celebrity than graduating from Harvard. Yes, a fair few infamous folks have that honor, see Theodore Kaczynski, Cotton Mather, and others. Association with institution or honoraria is neither necessarily indicative of honor nor accolade. 

But, back to the point. The Match process is, to an outsider at least, somewhat involved and complex. Some might assign more critical adjectives.

As I read through various documents and websites, the similarities between modern residency matching and historical college sorority rush came to mind. A little research substantiated that I am not alone, see Sorority Rush as a Two-Sided Matching Mechanism, American Economic Review, vol. 81, June 1991, 441-464. The process is complex, complicated, and frustrating for some. It denies the human tendency to free association and perhaps encourages pure cronyism.

 Courtesy http://theboola.com/expect-sorority-rush/

Why would anyone outside of medical education, or sororities, care?

The whole Match topic came to my mind when Jessica Pereira made the national news following "Match Day 2025." The 30-year-old "was heartbroken ... (when) she didn't place into any of her first or second choice surgical programs." Essentially, none of the sororities offered her a bid to be a resident physician. She opened up on social media, which led to articles on platforms like People.

Alicia Chen was similarly disappointed, according to People. She described some reluctance to post about disappointment on social media but explained that she did so to help "future and current students ... not feel so alone." She laments "all these four years you work so hard for, at the end of the tunnel, you actually don't have a job."

In fairness, there are apparently residency programs that are more competitive than others. Each of these doctors sought positions as surgeons, which is reportedly among the more competitive. Not everyone gets into Ball State either, so you know in advance to apply to multiple colleges - just in case. But, again, these applicants did not rush every sorority in medicine, they picked which to rush and those sorority houses did not extend bids.

Is that fair? Does fair matter?

Ms. Chen notes "this was the only type of medicine she wanted to pursue." There is merit in going after what you want. When I graduated from law school, I sent out hundreds of resumes and received only a few interviews and offers. To put it bluntly, I was disregarded by many sororities as I strove for a match without the complications of an organized rush, an algorithm, or a national Nobel-recognized system.

Ms. Periera and Chen's stories are not unique. According to the AMA, the "don't match" rate was 6%-7% depending on MD or DO. Those who don't match can strive for a position through a "Supplemental Offer and Acceptance Program" (SOAP), or can "reapply for the next matching cycle." 

You find yourself at graduation, with an average of $243,483 in student debt, and you may have to wait "for the next ... cycle." You can find yourself with such debt and seeking work in a marketplace where employers are free to compare and collude due to exemption from the antitrust constraints applicable to so many others. 

Why does any of this matter? The end of the story is that there are some examples of people who did not get what they want. The largest lesson for them is perhaps to widen horizons. But unlike many professionals who have market-driven horizons, the medical graduate is largely confined to the defined process of Match(ing) or SOAPing.

The path to being a doctor is narrow, constrained, and to some extent exempt from the law. 

Notably, this matters way beyond Ms. Chen and Ms. Pereira. The AAMC (yes, the same AAMC) reports that we "face a physician shortage of up to 86,000 physicians by 2036." Yes, Virginia, there is a physician shortage today and it is getting worse. Why are we not opening medical schools, expanding residency opportunities, and increasing supply?

The answer is that some new schools have opened this century, 29 MD and 17 DO. Other schools have increased enrolment. More students, more programs, but still the prediction of 86,000 too few physicians. Is enough being done? Why are residency opportunities still constrained? 

In economic systems, there are multiple methods for resource distribution. Some are control-driven (Socialism, Communism) and others range toward free markets. Regardless of distribution method, all economic resources in all systems are scarce. Physicians and their time are no different.

Why does any of this matter? Possibly, two physicians were shut out of the market in 2025 (and likely more of the 6%-7% that did not Match). Will they have the fortune to SOAP, or will they find economic and personal peril in waiting for the next cycle? Will they juggle debt and struggle? Will others be disinclined to join the challenging and demanding path to an MD or DO based on the reported experiences at the hands of a discriminatory Sorority rush algorithm?

Is our education process and path part of the solution or part of the problem? Is the market putting all possible stress on the imperative point - more doctors? Better prepared doctors? And, are the best and brightest, the hardest working, getting the best opportunities? Or are the best sorority houses on campus controlling rush with their inside information and the anti-trust exemption?

There is time and reason to question the challenges. In 11 years, we will be 86,000 physicians short. I will be old and will want medical attention. Will I and my peers be able to acquire care? Or will the constraints on competition continue to result in the U.S. having the most expensive medical care in the world? 

Challenges and Triumphs

At the Workers' Compensation Forum in Orlando this week, there is perhaps a tinge of change in the air. This is a growing event sponsored by The Florida Bar Workers' Compensation Section and the Workers' Compensation Claims Professionals (WCCP). It had roots that included the Board Certification Review Course, but has grown into more. This year over 550 attendees filled the halls for a variety of lectures.

At their Thursday luncheon, honors were presented to various attorneys. See Congratulations Ray Malca (April 2025). While Auspicious, that was only one of three. There was also presentation of the Annual Frierson Colling Professionalism Award. See Awards and Memories (January 2024). The Section presented this to Rosemary Eure of Sarasota.

It is a little challenging to balance the celebration of the winner with some recognition of the namesakes. A future post will address who Frierson and Colling were. Suffice it here to say that the Bar began in 2008 presenting this award in honor of the ideals of professionalism, and this year recognized Ms. Eure.

Professionalism is an odd term. Some feel it is too readily bandied about and too little discussed in earnest. There are those who struggle to define it, and others for whom it is a simple way of life. In a program at the Forum, attorney Glen Weiland addressed this spontaneously and effectively. I cannot quote exactly, but the spirit he conveyed is "ethics means following rules." Professionalism means "doing the right thing above and beyond the rules."

Thus, the Section recognizes that spirit of above and beyond. Ms. Eure has practiced in Florida workers' compensation for over 35 years. She has served on, and led, the Workers’ Compensation section of the Florida Academy of Trial Lawyers and the Florida Workers’ Advocates (FWA). She has been a member of the Section Executive Council for almost a decade, and is an inductee into the Florida Workers’ Compensation Hall of Fame and the College of Workers’ Compensation Lawyers. Congratulations Ms. Eure!

But wait, there's more.

In 2024, a group of lawyers began discussing their perceptions of the workers' compensation practice. This included airing some grievances and expressing some challenges. They met with Judge Hedler (WPB) and began to form a response. I have been an advocate of this community, and this response bears mention and appreciation (not yet triumph - more on that below). See Potential Energy (March 2024).

The end result is the Women in Workers' Compensation committee of The Florida Bar Workers' Compensation Section. That group has had a busy year building membership, momentum, and perspective. Today, it will present a panel discussion about issues women face in this practice. There are a number of women who practice workers' compensation law, and while I lack statistics it is my perception that the number has grown significantly over the last several decades.

This historical evolution is supported by the perspectives of Karen Gilmartin, who was recently interviewed for the Florida Hall of Fame historical project. She began practicing a few years before Ms. Eure and recalls being one of just a few women in the practice. She recounts a practice dominated by men, and challenges associated with it. She recounts what women faced in this community, and some significant improvement over the years. In numbers, there has also been significant progress.

Another award presented was also inaugural. That brings me to Francis Perkins (not a Floridian), who was the first woman to serve as a Presidential Cabinet member. More on here is available in Safety is Important, what is Effective (April 2016). I also mention her in Women's History Month (March 2023). Many see Secretary Perkins through that lens of a ceiling breaker and Cabinet member.

I would suggest that she was no less a ceiling breaker when she had earlier become a lobbyist in the New York Legislature. She was involved with unions that represented primarily women, notable including the garment industry, and intertwined with the Triangle Shirt Waist Fire and all it meant. As a result, she was engaged professionally in near exclusively male profession. Neither eclipses the other, but I think many are too quick to forget her efforts in that earlier lobbyist role, and the advent of workers' compensation.

The Workers' Compensation Section Women in Workers' Compensation presented its first Francis Perkins Award to Mary Ann Stiles at the 2025 Forum. Ms. Stiles has been a part of Florida workers' compensation since 1972, before attending law school and beginning practice in 1978. She was featured in a sponsored article in The National Digest.

Unless my eyes deceived me, Mary Ann was a little overwhelmed by the attention at this award presentation. I have known Mary Ann for many years, and believe that she was more appreciative and honored by this award than she could convey. The fact is that she has broken some barriers. She was one of the first women to lobby in Florida, among the first to own and run a law firm, and the list goes on.

The The National Digest piece concludes with a Mary Ann quote (if you don't know Mary Ann, know this: she can at times be brutally honest):

"women have come a long way, but not far enough. There is more work to do!”

That is a statement of fact, and it leads me to some important points. In 2025, why is there a focus on women in workers' compensation? The fact is that there are more women practicing here today than ever. Many are markedly successful, firm-owning, partnership-leading, association-leading, dynamic, prominent, and the list of adjectives goes on.

It is notable that the current Chair of the Workers' Compensation Section is an accomplished and dynamic leader - Ms. Cullen. The leader of the WCCP is the equally accomplished and exceptional Stacy Hosman. The Perkins Award was presented by Dawn Traverso, a former Chair of the Section, and every bit as outstanding and accomplished. There is no shortage of outstanding examples in the workers' compensation community. (One attendee referred to this group as the Mount Rushmore of women in Florida workers' compensation). 

And yet, "Something is rotten in the state of Denmark." (Marcellus, Hamlet, Billy Shakespeare, 1601). Ah, Marcellus explains

"That one may smile and smile and be a villain. There are more things in heaven and earth, Horatio, Than are dreamt of in our philosophy."

There is deceit and disregard. I have once too often heard the story of a lawyer or judge walking into a proceeding and having a male attorney assume she is "the court reporter" or "the interpreter." Yes, I am assured that is still happening in 2025.

I have heard once too often about provincial comments demeaning or diminishing female attorneys, from the ridiculous "little lady" to the more aggressive suggestions of needing "a new career."

I continue to hear issues of pay equity, career opportunity, and various other impacts of predisposition and bias.

The stories of lawyers disregarding or discounting the legal opinions of female attorneys, particularly the younger ones, are persistent and demoralizing. 

There have been advances - undoubtedly. There have been successes - indubitably. And many of those are evident in various statistics, such as those published by Practus (August 2024).

Nonetheless, we are working in a profession that is largely female. I have witnessed a variety of exceptional attorneys in my career, a great many of which are women. Their aplomb, skill, and intellect are undeniable. Some of the very best I have witnessed.

All attorneys are faced with challenges. There are difficult clients, unhelpful facts, and unsupportive law. The practice is demanding on time, intellect, and emotion. There are deadlines, conflicts, and demands. Regardless of it all, there remains community.

Unfortunately, there still walk among us some bullies, miscreants, and Neanderthals. And that presents challenges to the entire community. Somehow, as the foregoing has found its way into this post, the recurring them I cannot shake is Mr. Weiland's: "Professionalism means doing the right thing."

I am energized to see the topic receiving more attention, and I endorse Ms. Stiles "There is more work to do!” I am hopeful that raising awareness is of some help. The time is well past for clownish, cretin, bullies . And, more importantly perhaps, the time is now for us all to examine our assumptions and consider predispositions.

As noted, there is both deceit and disregard. Neither is worse or better, but one is easier to fix. 

It is possible that the "are you the court reporter" and similar is not intended to demean. Nonetheless, we must accept that it is demeaning in fact. The listener is troubled by the statement, and regardless of intent (or lack), all speakers must take note. There is no advantage in degradation, dismissal, or minimization.

In this, the "disregard" that is a unknowing, unthinking, or inconsiderate should be easily addressed. Through consciousness raising and simple consideration, the disregard and disconnect should be illuminated, alleviated, and eliminated. If you are making innocent and yet distasteful comments, heed the lyrics of somegirlnamedanna:

"Dude
I can't believe I have to say this
But seriously, just, just stop"

The "deceit" and other intentional nonsense will require more time, thought, and effort. That said, bullies are neither novel nor  surprising. They exist and persist in every culture, conglomeration, and community. They cannot generally stand the disinfectant of sunshine. There needs to be more discussion of the bullying ways and more attention paid to it. 

As with much else, events like the Forum are positive opportunities for these discussions. The vast majority of this community will rally to the "right thing" once they know it. The spotlight on what is troublesome and an airing of issues will benefit all. I look forward to this discussion, and welcome your thoughts: david.langham@doah.state.fl.us.