Utah Redux - A COVID Statute

Utah was among the first legislative reactions to COVID-19. House Bill (HB) 3007 was filed on April 14, 2020, and was sent to the Governor on April 22, 2020. He signed the bill the same day. Imagine, in the infancy of COVID, from filing to law in 8 days. That legislature returned recently to amend the new law. It may be an interesting study of legislative drafting as well as the process of incorporating definitions composed by others.

The new law in April defined COVID-19: "the disease caused by severe acute respiratory syndrome coronavirus 2." It brought clarity to "diagnosed" requiring (a) "laboratory testing of a specimen the individual provides, tests positive for the virus that causes COVID-19"; and (b) is "diagnosed with COVID-19 by a physician." HB 3007 created a presumption of workers' compensation causality if the "first responder is diagnosed with COVID-19" either "while employed or serving as a first responder," or within two weeks following the termination of such service. 

But, the challenge with many legislative efforts is in the details. The new law in April defined what a "first responder" is by reference to two federal statutes: "emergency responder" or "health care provider" as defined in "29 C.F.R. Part 826, Subpart C." It is likely that the reference was intended to be to 29 C.F.R. 826.30(C), which does provide definitions for those; the loose citation in the original bill is challenging, but not insurmountable. The citation included in the bill is not, however, as clear as it might have been. Those sections provide: 

29 C.F.R. 826.30(C)(1)(i) "a health care provider is anyone employed at any doctor's office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity."  

29 C.F.R. 826.30(C)(1)(i) "an emergency responder is anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility" 

29 C.F.R. 826.30(C)(1)(i) "an emergency responder" "also includes any individual whom the highest official of a State or territory, including the District of Columbia, determines is an emergency responder." 

There are some who might see these definitions as broad. The legislature returned however in a special session in mid-June. Revisions were passed in HB 5006, which included more concise definition of "first responder": 

(i) a first responder as defined in Section 34A-2-102, which includes:
(i) a law enforcement officer, as defined in Section 53-13-103;
(ii) an emergency medical technician, as defined in Section 26-8c-102;
(iii) an advanced emergency medical technician, as defined in Section 26-8c-102;
(iv) a paramedic, as defined in Section 26-8c-102;
(v) a firefighter, as defined in Section 34A-3-113;
(vi) a dispatcher, as defined in Section 53-6-102; or
(vii) a correctional officer, as defined in Section 53-13-104.

And: 

(ii) an individual employed by:
(A) a health care facility as defined in Section 26-21-2;
(B) an office of a physician, chiropractor, or dentist;
(C) a nursing home;
(D) a retirement facility;
(E) a home health care provider;
(F) a pharmacy;
(G) a facility that performs laboratory or medical testing on human specimens; or
(H) an entity similar to the entities listed in Subsections (1)(b)(ii)(A) through (G); (similar to those listed here).

(iii) an individual employed by, working with, or working at the direction of a local health department; or

(iv) a volunteer, as defined in Section 67-20-2, providing services to a local health department in accordance with Title 67, Chapter 20, Volunteer Government Workers Act.

The original bill centered upon categorizations defined by the federal government, and was seen as reasonably broad in its approach. The definitions adopted more recently are arguably broader still. The effect of many of the COVID-19 presumptions that have been adopted is to create classes of employees in America. Some occupations are provided special dispensation, while others are not. This is true with each of the various presumptions that have become commonplace including heart/lung, cancer, PTSD, and now COVID-19. These laws and similar COVID-19 executive decrees enhance the rights of some workers, leaving others behind. 

The scope is limited to "exposure arising out of and in the course of a first responder's employment or service." The time frame is limited to "after March 21, 2020, and before June 1, 2021." A curious element of both the original and revised laws is the absence of an activity requirement. Employment is seemingly sufficient. A sanitation worker who works cleaning a retirement facility, drug store (pharmacy), or dentist's office is a first responder and entitled to the Utah presumption. The same worker, if cleaning a group home, grocery store, or orthodontist's office is seemingly not entitled to the presumption. Of course that changes if any in the second group are "an entity similar" to the enumerated ones. Might that present some factual questions for a trial judge or two? Is "similar" an open door to additional presumption? If so, how wide open is it?

It is perhaps important that an "exposure" is required. For the disease and its sequela to be compensable, there must be an "exposure." In that regard, if a "first responder" (the bookkeeper at a chiropractic practice) is diagnosed with COVID-19 she/he must demonstrate that there was some exposure (an office visitor that had the disease?) It does not appear that the presumption arises on the solitary proofs of "I am a first responder" and "I have been diagnosed with COVID-19." Thus, a challenge seemingly remains as regards contact tracing. In whose presence was the bookkeeper? What surface in the chiropractor's office did the bookkeeper touch and who else touched that to precipitate an "exposure?"

Must the Bookkeeper be present in the Chiropractor's office; what if he telecommutes and nonetheless contracts COVID-19? He or she is nonetheless "employed by . . . the office of . . . a chiropractor." Might pharmacies, physician's offices, hospitals, and "similar" have workers that either telecommute or work in separate facilities that are office environments no different than some insurance company, financial institution, law office, or accounting firm? Is there logic in a web designer for a hospital chain working in its headquarters being treated differently than a web designer performing the same work in the headquarters of a retail clothing store chain? Or, are the web designers "similar?"

When we begin to separate people into categories, we will face challenges. There will be facts, distinctions, arguments, and perhaps litigation. The Utah law illustrates an effort to smooth that with the "an entity similar to" language. But, there remain a variety of questions that might be raised in the presentation of a workers' compensation case. Perhaps the law will diminish litigation or dispute as to some "first" and "emergency" responders. Perhaps it will leave questions regarding other workers for later resolution through claims, defenses, and adjudications.

Urging Behavior - Liability?

Back in February 2020 (seems like years ago), NBC News reported on a vaccination story. It centered on "Facebook groups that routinely traffic in anti-vaccination propaganda." This effort, the news page refers to as "health misinformation groups," of which it claims Facebook "hosts a vast network." This story focused upon a "4-year-old Colorado boy who died" from influenza. The child's mother described her physician prescribing a common antiviral drug, but that she declined to fill the prescription. 

The story notes that "concerns about side effects are common" with this medication. It notes that concerns are shared "even outside anti-vaccination echo chambers." There is ridicule and condemnation in the story directed at the advice this child's mother received in various online conversations, some of which have since been deleted. NBC suggests that Facebook should do more to address "vaccine misinformation." 

Around the same time, Michelle Carter was back in the news. Remember Is it Manslaughter? Does it Matter if it is Not? (April 2015). Ms. Carter was about 16 years old when she engaged in messaging with her young boyfriend. The gentleman was contemplating suicide, and eventually carried that out. She was convicted in 2017 for her role in encouraging him to carry out his own demise. It was labeled a "texting-suicide case" and she was sentenced to "involuntary manslaughter." Then, in late January 2020, she was released from jail "after serving 11 months." 

In Ms. Carter's conviction is a precedent for criminal liability for one's words. With her words, she "encouraged" her eighteen-year-old boyfriend Conrad, according to CNN. This was in text messages sent in July 2014. Those texts were all published verbatim in another CNN story. There is a mixture in the messages. In some, Ms. Carter urges help: "But the mental hospital would help you." and "Please don't" (harm yourself). Others are less helpful "You can't keep pushing it off" and "You're gonna have to prove me wrong because I just don't think you really want this."

There was significant media attention when Ms. Carter was convicted. There was angst and upset over the messages and the outcome. A young life extinguished; another severely damaged by a manslaughter conviction and prison sentence. 

When I consider the two stories, each involving a sad death, I wonder if the time will come when those who post medical advice on social media might be held to account for the outcome of their encouragement? Why is a young woman who urged suicide imprisoned and contributors to a Facebook forum are not? In each case, a young person died. In each case, encouragement was rendered. But, the outcomes are notably different. 

Perhaps there are a multitude of message exchanges underway at this very moment in which advice is rendered or behavior encouraged (discouraged). There is a directness of such messaging, a privacy of conversation. But, is there any distinction if the messaging is broader, and more public, in a forum like Facebook? 

And, is it appropriate that the platform (Facebook) has no liability for the information posted by the "anti-vaxxers" that it hosts? That broad protection dates back to 1996, and the enactment of a federal statute "meant to protect young internet companies from liability," according to the New York Times. That law has been in the news recently. Business Insider recently reported that President Trump supports the effort to "weaken protections for internet companies" in this regard. Facebook currently faces a campaign by advertisers because of its policies or lack of policies on content editing.

See, section 230 protects platforms from liability based upon the content produced by others (their users). The Times notes that this protection extends to sites that host "hate speech, anti-Semitic content, and racist tropes." It is based upon the premise that the platform is merely a conduit and that it cannot effectively police all of the submitted content. Therefore, this law "permits internet companies to moderate their sites without being on the hook legally for everything they host." 

In Hassell v. Byrd, 420 P. 3d 776 (CA 2018), the California Supreme Court was asked to force a platform called Yelp to remove "several postings deemed to have defamed a . . . lawyer." The Court concluded that the platform had no duty to remove the posts. The Court noted that these platforms get many requests to remove information because people find various speech to be disagreeable, unliked, "threatening, obscene, fraudulent or in the present case, defamatory.” This is described by the LA Times. 

The Court concluded that decisions as to what is or is not appropriate online should be left to the platform. It concluded that the platforms must have the right "to make their own judgments about the material they host without interference from the courts." It is likely that many will agree with that conclusion in favor of the platform and its discretion. The real question, though, has never been about whether one has the right to express views, but whether one is responsible for those views and the outcomes that may come from them.

The recent argument for diminishing (or eliminating) the protection seems focused on the perception that platforms are moderating, editing, and policing. Despite the perception that they are thus capable of doing so, there is concern that they seem to do so based upon ideological positions or beliefs, and without consistency. The argument seems to be that platforms have proven themselves capable and willing to police both users and content. Therefore, when they choose not to police either perhaps the results of their ambivalence might be to their detriment. 

Like Rush once intoned in Freewill, "if you choose not to decide, You still have made a choice." In the end, should there be liability for people whose words lead to untoward outcomes, like the Anti-vaxxers reported by NBC News? Should they be treated similarly to the 16-year-old who served a year in prison for texting encouragement or even less, to a despondent and vulnerable young boyfriend? And, should the platforms that provide such speech wide and broad dissemination be held responsible for their individual decisions on who, what, and when to edit or label with warnings?

The situation is certainly evolving. And, there is plenty of room in all of this for discussion. It is interesting to see the conversation and to understand the various perspectives. I have sent a great many tweets during this pandemic urging people to get out and exercise. Should I be held liable if one gets hurt doing so, and should Twitter share the blame?

Telephonic Discretion

I recently heard from an attorney regarding the use of telephonic attendance in Florida workers' compensation litigation. In the spring of 2020 COVID-19 drove me to mandate telephonic mediation. This decreased the infection risk for everyone, minimized travel, and allowed us to continue operating smoothly.

Believe it or not, some said (essentially) "it will never work." Remember when Orville Wright similarly assured that no plane would ever fly over the ocean? Well, he was wrong, and telephonic mediation has worked fairly successfully. In fact, anecdotal reports support that resolutions are being reached in a significant number of instances. There are some hiccups, discussed at the end of this post. After returning telephonic to mediator discretion, I mandated telephonic mediation again on July 1, 2020 (through the end of July). Stay tuned for updates on that.

The attorney who emailed me was critical of the discretionary nature of such technology under our rules generally (before the mandate, before COVID). Rule 60Q6.110(5) says:

"No party shall appear at the mediation conference by telephone unless such appearance is approved in advance by the mediator."

Thus, in normal times, the default is to live appearance and various attorneys and others seek specific permission for telephonic attendance on a case-by-case basis. Much of the foundation for returning to mandatory in July is the sheer volume of such requests that persisted in June. Our mediators have much to do, and relieving them of that volume of correspondence while bringing uniformity to the customer just makes sense. 

But, when telephonic is discretionary, this attorney sees indicia of unwaivering denial of telephonic appearance by some mediators ("_________ never allows telephonic attendance"). There is a perception expressed that some are presumptive and/or unreasonable in their denial of telephonic opportunities. Thus, the attorney finds her/himself persistently filing motions for such permission after informal denial (this begs the question of whether a Judge has the authority to overrule that discretion, but that is a topic for another day). This attorney advocates the amendment of our procedural rules, to mandate the free option of telephonic appearance for any attorney or party who desires the same. 

I have written before about the fact that none of us can ever be sure we have any idea what other people are going through. Ensconced in, and distracted by, the challenges of our own day-to-day, we lack a factual foundation regarding what other people's troubles may even look like. In the era of COVID-19, we are reminded that people's individual medical conditions may impact their susceptibility to and reaction to COVID-19. 

The Centers for Disease Control has urged Americans to limit their exposure to large groups. There are also specific warnings regarding people who have medical conditions, and who are “mature“ (I recently was told about a warning for the “elderly,“ and the ages provided as an example included me. I am not “elderly,“ and being called that hurt somewhat. Even Judges have feelings). Thus gathering for mediation may present risks even in the roomiest of facilities. However, some of the mediation breakout rooms were not designed with a six-foot social distancing requirement in mind. And, many who attend mediation bring a spouse, child, or neighbor to support them. Rooms can get crowded, waiting areas congested, and there may an elevator to share. 

But, that may be just as true in a general sense without COVID. Some may struggle with medical conditions that are just as travel-challenging persistently. There are a variety of reasons a physician may advise against travel, crowds, and general exposure (colds, flu, pollen, the list goes on). Let's consider them momentarily. 

This attorney described the motion process. The lawyer lamented that the process as regards telephonic appearance starts with a written request to the mediator, who is perceived as a "presumptive no." From there, the method for obtaining relief centers on filing a motion, and asking a judge to grant dispensation (following the mediator's "no"). The lawyer pointed out that her/his private medical information should remain private, and that she/he should not be forced to disclose their risk factors, conditions, or other intimate details to gain permission to appear by telephone. There is merit in that contention of a right to privacy. One might contend that a lawyer should not have to "leave their right to privacy at the courthouse door." 

This lawyer noted, essentially, that my mandate of telephonic mediation was perceived as protecting OJCC staff. That is fair, though I was simultaneously striving to protect all of you also. She/he argued that I was protecting OJCC staff without their individual medical histories or risk factors similarly becoming exposed to scrutiny. In other words, She/he thinks that I am protecting the mediators for all the right reasons in this COVID time, but feels I do not similarly protect all the parties and attorneys in non-COVID times. That is fair also. How would a mediator, seeking to conduct by telephone, feel if she/he had to publicly document medical conditions as an explanation for directing the public to attend by phone? That is a fair question. 

In the course of 2020, we have each likely encountered COVID-19 personally, or tangentially. If we don’t know someone who’s had it, the odds are that we are connected with someone who does. I have heard from individuals who are striving to avoid personal contact. We have heard nothing but praise for the initial reaction to mandatory telephonic mediation, both from mediators and parties. But would it be appropriate to change the rules so that the telephonic is our persistent and usual default?

The lawyer admitted that there may be those who seek telephonic mediation as an avoidance. There may be those who are disrespectful of the process, and nominally attend by telephone while in reality instead sit elsewhere focusing their attention on other matters (on a computer, on driving, on watching a ballgame). This attorney believes that the perceived presumptive "no" results from the lackluster participation of some who attend telephonically. But, that some are not effective or even enthusiastic or attentive in telephonic appearance should not work to the detriment of all (requests should be on a real case-by-case consideration not a presumptive "no"). 

Shall we doubt all requests therefore as a result of the actions of a few? Shall we doubt those with genuine concerns, because others act out, or fail to act at all? Or, shall we pull together as a community and concede that some people have genuine individual concerns and needs? This attorney notes that she/he includes good faith ("opposing counsel agrees") in many denied requests. Might a mediator be willing to make a phone call if an attorney's request said "For medical reasons, I am seeking permission to appear by telephone, please call if questions." Might that conversation be a more appropriate opportunity to discuss medical issues than in a public document? Might someone's personal information be preserved and respected more readily?

Those decisions are not mine in a general sense. Though, that might support a change in the rules at some point. Currently, the rules vest those decisions in the sound discretion of our mediators (and perhaps arguably judges). For now, we are back in mandatory telephonic mode. But, when we return, I have faith in them, their discretion, and their professionalism. This post may remind us all that it is disconcerting to face medical issues and risks. It is quite possible to be medically advised against travel, crowds, exposure, and more. We have all learned from COVID-19, will compassion be part of our benefit?

I have faith in our mediator's willingness to consider case-by-case requests. Their discretion is sound, and I lament anyone perceiving that there is some presumptive "no" awaiting their request. Any appearance of that is unfortunate and should concern us all. Similarly, I have faith in those who would ask for accommodation. I believe that many would be frank, open, and appropriately ask only when it is truly needed. Needed not so that one might multi-task. Needed not because one doubts the chances of success. Needed because exposure or travel presents a real and present risk or danger to someone. 

If there is a good reason to appear telephonically, say so, or ask for a telephone call from the mediator so that you might say so. It there is good reason, first obtaining opposing counsel's consent can only be a positive factor in the request. In the end, if there is a perception of the "presumptive no" by some person or in some jurisdiction, feel free to call or email me to discuss. In the end, our customers are not an interruption of our workday, but are the purpose of it. 

For now, there is mandatory telephonic. When that concludes, we will return to a rule that vests discretion in the assigned mediator. As Falstaff noted eons ago, "discretion is the better part of valor." That is, discretion is caution, consideration, and thoughtfulness. It is my hope that requests for accommodation are duly and thoroughly considered on their merits. Similarly, I would hope that those who seek accommodation employ a sound process (discuss first with the opposing party, express the reason, or ask for a phone call to do so, etc.). 

Litigation, by its very nature, is adversarial, challenging, and frankly sometimes exhausting. There are stressors, surprises, and uncertainties. Let's all remember that we have a common goal in mediation, and working together will best facilitate the communications and considerations that make mediation so successful in our workers' compensation community. Consideration for, attention to, each participant has value. Let's all work together when we can and keep accomplishing the great results that have become our hallmark. And, please don't call me "elderly."

WCI 2020 - The Virtual Edition

There is a cost-free opportunity on the horizon for exceptional workers' compensation education. This is produced like no other, with literally the cream of the crop speaking/presenting for your viewing, edification, and illumination. We have to get over whether our lives, options, and opportunities are what we want during COVID, and instead we need to focus on the great opportunities with which we are nonetheless presented. 

COVID-19 has had multiple impacts on our lives, professional and personal. It has changed the way we work, restricted our personal interaction, and forced us to "improvise, adapt and overcome," (Clint Eastwood as Gunny Highway, Heartbreak Ridge, 1986). This has included individual efforts, corporate efforts, and group efforts. When I think of workers' compensation and group/community-focused efforts, my mind turns to the Workers' Compensation Institute (WCI). For decades, under the leadership of Jim McConnaughhay and Steve Rissman, the WCI has evolved, grown, and expanded. It is the must-attend for so many each August, one that I have missed perhaps twice in the last 27 years. 

This blog has included multiple references to WCI events over the years. Recently, there was Thanks to All the Attorney Speakers at #WCI2019, which illustrates the depth of programming at a normal August WCI (and the vast assortment of lawyers that engage, present, and contribute). There has been mention of the National Association of Workers' Compensation Judiciary, which WCI supports and helped establish. The WCI has been a steadfast partner in the OJCC Winter Seminar each year in Tallahassee. And, of course, the recognition of WCI by Comp Laude for its philanthropic work has been featured. It is fair to say I am a fan of the educational efforts of this non-profit. 

The WCI has absolutely "improvise(d), adapt(ed), and overcome" for 2020. With the COVID threat, the resulting economic challenges, the reticence regarding travel, and the efforts of so many to shelter from this virus, both the new WCI Cybersecurity Forum and the broader workers' compensation curriculum will be remote programs. The workers' compensation portion will be presented in August. The registration process has not opened for the August 17, 18, and (either 19 or 21), 2020 virtual WCI. However, you can sign up for alerts so that you are notified when registration opens. Details are coming soon, but WCI360 released an overview last week. Remember, Nothing is Over Until We Say It Is!  (May 2020).

What is known at this time is that the 2020 Virtual Conference will include: 

Monday, August 17, 2020: 

An annual favorite from the Outfront Ideas team of Kimberly George and Mark Walls; this will be an hour on Monday morning, August 17, 2020. It will feature a panel discussion on the effects of COVID-19 from the perspectives of various businesses. 

Also Monday morning Roy Franco and Heather Sanderson will conduct an unprecedented "Medicare Townhall" featuring John Jenkins from The Centers for Medicaid and Medicare Services. This second hour Monday morning will focus on “The Best Defense: Avoiding Civil Monetary Penalties and Mandatory Insurer Reporting Under MSA Compliance.” The impact of Medicare on this community of workers' compensation is undeniable and challenging. This program should provide great insight for those responsible for compliance, and beyond. 

Monday afternoon, there will also be the Florida Case Law Update, which is a perennial audience draw each August. This program will be two hours and features Geoff Bichler, Marc Golden, David Beach and Mark Zeintz. Lou Stern will moderate this discussion. These are some exceptionally experienced, long-term, practitioners of the workers' compensation community. 

Also Monday afternoon will be a multi-state panel discussion featuring representatives of the annual Multi-state Breakout session. This will be moderated by Steve Christie and features representatives from California, Texas, Louisiana, Oklahoma, Mississippi, Alabama, and Kentucky. 

Tuesday, August 18, 2020: 

The annual live surgery will proceed on Tuesday morning, August 18, 2020. This one-hour program will feature Dr. Michael Riggenbach of Orlando Orthopedics, performing an upper extremity surgery. Dr. Lawrence Halperin will moderate the surgery. And, there will be the ever-popular opportunity for questions and answers with the physicians. A live surgery, on simulcast! 

Also, Tuesday morning is another multi-state breakout panel discussion moderated by Catlin Beyl and featuring representatives from Georgia, Florida, Illinois, North Carolina, South Carolina, and Tennessee. Whether on Monday or Tuesday, you can find perspectives from a wide variety of jurisdictions. 

Tuesday afternoon will feature two one-hour presentations by the National Workers' Compensation Review. One will focus on the AMA Guides to Permanent Impairment, including the American Medical Association Vice President David Sosnow, and Dr. Douglas Martin. The second program by the Review will focus on workers' compensation presumptions and COVID-19. This will be moderated by Kip Kubin. 

Either on Wednesday, August 19, 2020, or Friday, August 21, 2020, there will be a rendition of the Florida-mandated "5 Hour Law & Ethics course." This program is moderated by Michael Bunte and Scott Silver. This is a must-have for those adjusting Florida claims. It features regulatory panel discussions, ethics, and a two-hour case law update. While it is a mandated program for Florida claims handlers, the depth and breadth makes it of value to anyone with an interest in workers' compensation. 

We can readily see that the 2020 program will not be "the same." Remember, it is an adaptation, not just a shift to "virtual." Admittedly, the WCI leadership has undertaken significant improvisation, adopting and producing a new, concise, and creative program within the challenges of COVID-19. And, from all indications, WCI has overcome the presented challenges with an exceptional, deep, and broad set of educational opportunities. I am convinced Gunny Highway would agree that WCI has indeed "improvise(d), adapt(ed) and overcome." 

I am saving the dates (August 17, 18, and [either 19 or 21], 2020), and encourage you to do so also. The program is exciting, the price is absolutely right ($0), and we owe it to ourselves and workers' compensation generally to sharpen our tools periodically as we prepare to continue our efforts to make this community as strong. vibrant, and effective as practical. 

And, if you happen to be one of those that plan ahead, the WCI360.com website already has registration available for August 2021. I look forward to returning there myself next year. There are also a vast assortment of COVID-19 resources available on the WCI360.com page. My own various musings on COVID-19 are collected on the Announcement Blog for your convenience. A recent podcast interview by Sedgwick Institute's Chris Mandel is here. "See" you in August!

Anger and Acting Out

It is worth noting that regardless of the volume of education, obtention of degrees, or other credentialing, there is room for people to disagree. We have a great many experts and organizations striving to guide us all through the COVID-19/Wuhan/SARS-CoV-2. Much like the constantly evolving dietary advice we get (eat this, don't eat that, etc.) the ground beneath our feet is seemingly always shifting. In the end, there is ample evidence that societally we do not know all about this virus, and perhaps we do not yet even know what we don't know. 

We are confronted with conflicting advice that frustrates our efforts. ABC News recently reported CDC and WHO offer conflicting advice on masks. An expert tells us why. The Centers for Disease Control (CDC) now says Americans should be wearing masks. The World Health Organization says you should only wear one if you are caring for someone with the virus. One scientist in Hong Kong says mask use could reduce spread by 80%. Who is right and what do we do about those who are wrong?

That is a fair thought process. Perhaps we should start with what we should not do. First, we should strive to not resort to violence based on our beliefs or conclusions. USA Today reports that a security guard was killed after telling someone to wear a mask or leave a store. A strange incident was also reported in which a patron wiped his nose on a store employee's shirt when asked to wear a mask. A store providing employment for several closed after assorted abuse directed at employees about mask-wearing. The article reports that similarly people have been attacked while wearing masks. 

I recently stood in a grocery checkout line, demarcated by floor tape. The cashier ensconced behind a sheet of plexiglass, and the grocery bagger several feet away. When I prematurely stepped towards the card pin pad, conveniently located several feet away from the “stand here line,“ I was chastised by the cashier for getting too close to the bagger. The curious thing was that the cashier on the lane next to mine was standing approximately 1 foot behind me, also separated from her customers by Plexiglas, with no apparent concern for our shared/unprotected proximity. One might stand in the grocery store and debate the logic of any of these points, but there is no benefit to be gained.

On another trip to the grocery store several weeks ago, turning down the frozen food aisle, I detected the distinct aroma of rubbing alcohol or similar antiseptic. It was reminiscent of a hospital. Proceeding down the aisle, I happened upon a lady who was opening the compartment doors with a visibly damp cloth, and picking up her selections with the same washrag. As I passed her, the aroma of antiseptic diminished, and eventually faded. It’s my suspicion that everything the shopper touched was exclusively with that antiseptic-soaked cloth. One could discuss with her the necessity of such measures, but what is the point?

On a visit to a "big box" store, I was corralled and channeled through a maze of overturned carts, fencing, and "caution tape." Approaching the front door, I observed another customer shopper berating the entrance employee regarding how “useless“ and “unnecessary“ these various efforts were. As I brushed past the two, striving to maintain any distance, I overheard a customer ahead of me utter "idiot"; I was not sure if she referred to the caterwauling customer or the employee guarding the door. I did not inquire further. 

The bottom line is, it appears, that various individuals and organizations have differing opinions as to this virus, it’s perniciousness and reactions to it. In the end, many will eventually likely utter “I told you so,“ regarding their individual perspective. That was illustrated in a recent conversation I observed between two passionate advocates. One contended that the Coronavirus lockdowns and stay-at-home orders were overreaction, emphatically pointing at the erroneous initial death projections compared to the actual outcome to date. The other debater seized upon the March-reduced death toll and argued that statistic merely supports the success of the lockdowns and orders ("what if we hadn't").

Who is right? Does it matter? Can anyone travel back in time to change our course? Can anyone offer perfect solutions and answers? In the end, we are human beings faced with uncertainty and difficulties. In the end, our mission must remain to do our best.

As far as Worker’s Compensation litigation in Florida, our goals will be: (1) striving to maintain clean environments, (2) striving to maintain social distancing adherence in our facilities; (3) requiring the use of face masks in our premises; (4) encouraging sound discretionary decisions as to remote proceedings by telephone, zoom, or other platforms; (5) encouraging an environment of respect and dignity for everyone involved, regardless of anyone's personal beliefs regarding this pandemic or any other topic. Some local governments are mandating masks more broadly. That is their business. 

This is not some adoption of, or rejection of, any particular personal perception of the effectiveness of distancing or masks. We are not endorsing the CDC or discounting the WHO. This is merely an adoption of a rational and reasonable path forward in the face of uncertainty, conflicting opinions, and unfortunately sometimes raw emotions. News reporter Brit Hume recently noted on Twitter:

"The best reason for wearing a mask is not medical. The best reason is to be considerate of those who are frightened by this outbreak and are made uncomfortable around people not wearing one. So mask up not to be safe, but to be nice."

What if everyone made their decisions on that simple fulcrum? What if the only analysis was "am I being nice?" Too simple? Perhaps. 

We will persevere through this threat. As a community, we must remain focused on our purpose of resolving, mediating, and adjudicating worker’s compensation disputes. Others in the community will hopefully remain similarly focused upon their roles in serving employees and employers in this community. In their premises, they may have rules with which we disagree or which we celebrate. Regardless, let's remember it is their premises and their decision. Let's just be nice in their office, clinic, home, etc. 

As we progress, the most important attributes we can strive towards are compassion, patience, and tolerance. The fact is that disagreement will persist. The fact is much is not yet known. The fact is, despite that, we all still have an immensely important duty to fulfill to our community of workers' compensation. The fact is that through disagreement and confrontation we will not change minds about masks, distancing, and more. Our job is to help resolve issues and disputes, and we need to focus on that.

I am hopeful, moving forward, that we do not have any untoward behavior in our community. It is my hope that we all remember our responsibilities of civility and patience with each other. If wearing a mask troubles you, patiently try to work through why. It is my hope that we collectively and individually demonstrate the outstanding professionalism for which the Florida worker’s compensation community has become known. If you have suggestions or criticisms, I’m happy to hear from you. 

If something in our process makes you angry, or upset, please let me be the recipient of your comments, the target of your angst or even anger. But, please allow our security, judges, mediators, and staff to fulfill their responsibilities as they have been asked. We are doing our best for you, and appreciate you more than you know. 

Coaching or Pinch Hitting?

The Superior Court of New Jersey recently rendered McGory v. SLS Landscaping, DOCKET NO. A-4837-18T2. It is a decision about due process and the impartiality of adjudicators. It is many miles from Florida, but it is a good reminder of the constraints presented by the right to be heard. Adjudicators anywhere would benefit from a review of this case. It may also be instructive on the positive attributes of veracity and the potential downsides and complications of misrepresentation(s). 

For whatever reason, the employee in this case "jumped from a loft" at the employer. The event was not witnessed by any owner or his supervisor, Ms. Caruso. She did hear his landing from the jump, and investigated. She asked Mr. McGory if he was hurt, but Mr. McGory declined care. After he returned home, he concluded the injury required treatment and texted Ms. Caruso to inform her he was seeking care at a hospital, though he expressed an intent to cover the expense with his "health insurance." He noted that Ms. Caruso did not object to his intentions, nor did she specifically tell him that failing to tell the truth "was improper." (As I typed that, I thought of Robert Fulghum for some reason). 

Mr. McGory visited "two health care providers, an urgent care center(,) and then a hospital." he provided a history "to each": that he "injured [his] foot when [he] fell off a roof while cleaning gutters at [his] home." This may cause some concern to some. First a misrepresentation, but reiterated multiple times. He later explained that he made those statements because he did not understand workers' compensation and feared punishment at work if he sought care. He was diagnosed with a fracture and received medical care. 

Returning home thereafter, Mr. McGory testified, his parents educated him regarding workers' compensation and recommended that he report the injury accurately. He therefore contacted the Employer and the medical providers "to correct his record." The Employer then provided some additional medical care but "later denied his claim" based upon his untruthful initial representations regarding the facts. 

Mr. McGory then filed a petition seeking both medical care and indemnity benefits. This was "supported by his affidavit" providing an additional explanation as to how he was injured. He explained his declining the initial offer of care and described being embarrassed (apparently of his jumping action). The employer denied the benefits asserting that his "injuries (occurred) while jumping off a ladder at his home." Some, at this point, may question whether that is disingenuous when the supervisor (1) heard the landing, (2) investigated, and (3) thought it was serious enough to offer medical care initially.

Thus, the situation presented an employee seeking benefits, and an employer denying them. The matter proceeded before a judge. And, at a preliminary motion hearing, the case took an interesting turn. Some may perceive that there the umpire (judge) became a coach or even a pinch hitter for the employer or even the employee. After hearing why the employer was denying the claims, the judge spontaneously raised the issue of "fraud," but the Employer expressed no desire to pursue that defense. Despite that pass, the Judge decided Mr. McGory should "remain silent," (pinch hitting?), limiting thereby both due process and free will, and ordered the employer to produce Ms. Caruso (supervisor) to testify. 

Concluding that the petition/affidavit might alone carry Mr. McGory's burden of proof, the judge essentially seems to have rested the Claimant's case for him (pinch hitting?) and to have allowed the defense to proceed. One defense witness testified as to what others told him of the injury (hearsay perhaps), and that when he returned to the premises Mr. McGory had departed (not an eye witness). Ms. Caruso testified, describing her hearing the event and conversation with Mr. McGory including the offer of medical care he declined. 

The judge then expressed his lack of understanding as to "why the petitioner would jump from the loft." The judge asked if Mr. McGory would explain that in testimony, and renewed his questioning about investigating "fraud" (coaching?), which the employer again declined to assert. It remains unclear how his reasoning of why to jump would be either relevant or important. And, the record does not seem to indicate such an inquiry was raised by the parties. 

The appellate Court noted that a later review of the record demonstrated the judge said "fraud" more than a dozen times that day. At this motion hearing stage, the judge vacillated on how to move forward, now expressing uncertainty about "whether (Mr. McGory) presented a prima facie" case with his affidavit, having already prevented him from testifying, and moving to the defense case first. The judge editorialized further as to his perceptions, raising and suggesting some potential defenses, and concluded that more evidence was needed (coaching?). 

Before the case reconvened, the Employer sought a judgment through a motion, essentially arguing the misstatements Mr. McGory made, and asserting that his actions were "willfully negligent, or constituted horseplay," which defenses the judge had previously suggested (coach?). Counsel for Mr. McGory reminded that the Claimant had not yet testified and argued dismissal was therefore premature. The judge returned again to the word "fraud," but reassured the parties he was "not rushing to judgment." He directed the Claimant's counsel to file a response to the dismissal motion (coaching?) and instructed regarding the details he wanted included in the response (coaching?).

Ultimately, the judge advised the parties he had decided "to have an all-out hearing," where he would "get to the bottom of this." (side note, the judge's role is to hold a hearing). However, he did concede that he had yet to hear from Mr. McGory. Despite his announced perception of a hearing being needed, the judge then "proceeded to make findings concerning" the affidavit, such as the statements to medical providers which "reveals a lie," and his statement to the employer about using his health insurance "was a lie" (as it was Medicaid and not "personal health insurance"). The appellate court characterized the judge's comments in this regard as "commentary."

Then, before Mr. McGory was allowed to testify, the judge made "credibility determinations and factual findings" about the accident and injury. These included that the Claimant was "a multiple liar." Reversing his prior conclusion to hold "an all-out hearing," the judge instead dismissed the petition (pinch hit?), but "without prejudice" (meaning it could be filed again). The judge suggested it could be reinstated (coaching?) if Mr. McGory proved "he is honest." On that showing, the judge concluded the Claimant could then present his case.

The judge then instructed the employer that it "might" have its dismissal with prejudice motion granted if "it's based on fraud." (Coaching?). But, the claimant did not seek to reinstate the petition nor did he testify. Mr. McGory instead elected to appeal, and the Judge was informed that had been filed when the parties appeared at a subsequent hearing. There, despite there having been no filing by either party to resurrect the petition, the judge announced "'There is a new motion,' referring to respondent's" previous motion to dismiss (already granted in part). The Court noted that the parties exhibited confusion in response to the judge's pronouncement, and that "the judge then scheduled a hearing on" that dismissal motion (directed at a petition already dismissed). If you are confused, in calm retrospect, imagine the parties striving to keep up in real-time).

The judge then proceeded with a July 10, 2019 hearing on the motion to dismiss (despite the fact Mr. McGory had never filed any motion to restore the petition, and despite the fact that it was already dismissed). Additionally, Mr. McGory had filed an appeal the day before that hearing (the judge had no jurisdiction). No testimony was taken at this hearing, and the judge then "rendered a decision on the merits of" the dismissal motion (which he had already essentially granted). He concluded Mr. McGory lied to the medical care providers and that he "was injured at work." Then, without Claimant testifying to tell his side, the judge concluded that "the injuries were not compensable because they resulted from petitioner's willful conduct - jumping." (Pinch hitting?). 

The appellate Court noted that of course, the judge had no jurisdiction as the matter was the subject of an appeal. Further, since the petition had not been refiled nor any motion to restore been filed, the argument was made that the judge further lacked jurisdiction (even in the absence of the appeal). It found curious the judge's conclusion that he had "'reopened' the case in June and thereafter afforded the petitioner (McGory) the opportunity to testify, which petitioner declined." Though the trial judge might perceive that history, it seems at odds with his ordering the Claimant not to testify, his vacillation over the weight of the affidavit, his promise of a hearing, commentary without hearing, and later return to the premise of hearing after the case was appealed. 

Mr. McGory contended on appeal that his due process rights had been violated. He complained of the "initial dismissal order" and the deprivation of any opportunity to testify, and the dismissal that followed the final (and tardy) opportunity for hearing while the appeal was underway. 

Acknowledging that "[d]ue process is not a fixed concept . . . but a flexible one that depends on the particular circumstances," the Court reminded that "due process" "includes not only the right to cross-examine the adversary's witnesses but also the right to present witnesses." It concluded therefore that the May 29 dismissal "without prejudice violated petitioner's fundamental due process right to present evidence supporting his claim." The Court was critical of the judge's promise of a hearing, followed by denial of a hearing. It noted that 

"the notion that a case where the credibility of the witnesses is an issue and the underlying facts are disputed can be decided without the need to "hear the evidence" is inconsistent with the fundamental fairness to which every litigant in every litigated matter is entitled."

The Court held that 

"no court or administrative agency is so knowledgeable that they can make fair findings of fact without providing both sides the opportunity to be heard." 

The judge's dismissal was presumptuous, based on less than a full opportunity to be heard, and based upon the judge's assumptions and conclusions that "petitioner was a liar." The Court was critical of the judge's imposition of a litmus test (prove you are honest) as a foundation to reinstate the petition, concluding "there is no requirement a petitioner first establish he or she is honest before obtaining a hearing on a claim petition." I reiterate that the judge's obligation is to afford all parties a fair and open hearing. Conclusions and decisions should wait until after that opportunity, after the parties themselves choose what to present as evidence and then rest their respective cases. 

In short, "the judge predetermined the issue of petitioner's credibility at the outset of the matter, and throughout the proceedings, he oft-repeated his determination petitioner was dishonest and not credible." The judge thus "demonstrated he could not fairly consider" the testimony." The judge's statements were "inconsistent with the fair and impartial consideration of evidence by a fair and impartial judge to which petitioner was entitled." The Court reversed the dismissal and returned the case to the trial level with directions that the matter be assigned to a different trial judge for further proceedings. Such an instruction is rare in appellate decisions. 

In litigation, some party bears the burden of proof. That party should be afforded the opportunity to present their claims or defenses (picture a presumption case where the law says the worker wins unless something is disproven). The opposing party should have the same opportunity. The judge should not predetermine any fact, form any opinion, or express any advice on appearances, perceptions, or how any party might or should proceed. The selection of claims is for one party and the selection of defenses for the other. The choice, timing, and manner (live, deposition, etc.) of the witnesses is up to the parties to pursue. Judges are there to perceive and to judge not to suggest (coach), direct (coach), or provide commentary (coach).

The judge's job is to be the referee as the parties find friction with each other. As disputes over those claims, defenses, and choices occur, the judge is the umpire. She or he should never leave that role and don the uniform of either team on the field, or suggest to them plays or strategies. The parties bring the case, the judge hears what they elect to present, and then a decision is rendered. Does that mean that the parties are always effective? No. Usually, at least one party loses in every trial. That does not mean the party was wrong or ineffective. It just means the other party was more effective that day, with those facts, in that case. 

Judges owe to the parties and to the adjudicatory system to remain in their appropriate role. When they venture from that referee or umpire role, it damages the rights of the parties. But, as importantly, it damages the adjudicatory process, all judges, and the public that are supposed to be served. Unprofessional, advocate behavior damages the public perception, erodes the public faith, and creates problems. Judges should allow parties to try their case, make their decisions, and then decide the case based on what is presented and the law. 

Inconceivable!

In 1987, The Princess Bride hit theaters. It is a quirky movie, which some refer to as a "cult classic." In it, the hero (Wesley, played by Cary Elwes) pursues three adventurers (seemingly villains, but they later come to help Wesley) that have kidnapped "The Princess Bride," named Buttercup. The film is replete with great quotes. I was recently reminded of an exchange between the supposed brains of the the three villains, Vizzini (played by Wallace Shawn) and Inigo Montoya (Mandy Pantikin). The brain, Vizzini, has just cut a rope that Wesley is climbing, yet Wesley does not fall:

"Vizzini: HE DIDN'T FALL? INCONCEIVABLE."

"Montoya: You keep using that word. I do not think it means what you think it means."

In a recent educational program, I heard a judge similarly focusing the audience on the meaning of words. Words are critical to the law, particularly in the realm of interpreting writings such as statutes and contracts. What words mean matters. 

There are certain approaches to statutory interpretation that are accepted in the American legal community. The subject is discussed in various publications, an excellent overview from a legal writing perspective is A Guide to Reading, Interpreting, and Applying Statutes. This is an expansive and detailed examination of interpretation from the perspective of more effective legal writing. For those who would study the employment of prose, it is detailed,  informative, and helpful.

The primary rule of interpreting a statute is that the plain meaning of the statute should be applied when it is clear. In other words, the first step in interpreting is to read the language of the statute itself. 

“[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Barco v. School Bd. of Pinellas County, 975 So. 2d 1116 (Fla. 2008).

Thus, the primary tool for interpreting a statute is the statute itself. A judge should read the language, and strive to follow its plain meaning. There have been challenges as to that process. In the Westphal v. City of St. Petersburg, 122 So. 3d 440 (Fla. 1st DCA 2013) decision of the Florida First District Court, both the majority and dissent cited the "plain meaning," but disagreed as to what that was. The dissent contended that the majority was instead "crafting a new statute in derogation of the plain text." Thus, purportedly not an interpretation so much as a re-write. See Westphal is Over, Questions Remain. 

Another interesting read is Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133 (Fla. Dist. Ct. App. 2019), reh'g denied (May 30, 2019), review denied, No. SC19-1044, ___ So. 3d. ___ (Fla. Oct. 28, 2019), which is discussed in Personal Comfort, Testing Compensability. A main focus of the Court there is interpreting words. Some will argue that another key feature is stare decisis, with both majority and dissent finding a foundation for respective positions based on the same prior decisions interpreting "arising out of" and in "the course and scope of."

In the analysis of words and meaning, "it is appropriate to refer to dictionary definitions when construing statutes or rules." This may mean reference to a general dictionary such as the Miriam Webster Collegiate Dictionary, or perhaps to a more specialized publication such as Black's Law Dictionary. Both were consulted in Barco. But, the important point is that it may well be critical to understand what the word "inconceivable" really means. It may be important for the person who writes it into an argument, rule,  statute, or decision. It may be equally important thereafter when someone strives to understand and interpret what that writing means.

The legislature is tasked with making laws. It is this conglomeration of elected representatives, with the assent of an elected Governor, that must collectively change the law. That process is punctuated with opportunities for public input, open discourse, disagreement, and discussion. It is collaborative, contentious, and even combative occasionally. The Courts presume that in that process the legislative branch is "aware of case law," that is that it is aware of the Court's previous interpretations. In City of Hollywood v. Lombardi, 770 So. 2d 1196, 1202 (Fla. 2000), the Court reminded of this: “The legislature is presumed to know the judicial constructions of a law when enacting a new version."

Upon that knowledge, upon the appreciation of the interpretation, the elected representatives are certainly empowered to disagree. A prime example is the Court's interpretation of section 440.09(1)(b), Florida Statutes (Supp. 1994), the "major contributing cause" standard in Florida workers' compensation. The Court concluded that standard meant:

"if the workplace accident contributes more to the disability or need for treatment than any other single cause."

This Court interpretation was founded largely upon the legislature's use of the word "the," as in "the major contributing cause." See Closet Maid v. Sykes, 763 So. 2d 377 (Fla. 1st DCA 2000). 

The Florida legislature responded in 2003 by amending section 440.09(1)(b):

"the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains more than 50 percent responsible for the injury as compared to all other causes combined and thereafter remains the major contributing cause of the disability or need for treatment." 

Whether the Legislature originally intended the outcome interpreted by the Court or intended this "more than 50 percent," The Court reached what some see as a strained (depending on the definition of the word "the") conclusion. The Legislature's intent in its correction is clear and succinct. It both changes (corrects) the Court analysis and provides clarity through specificity. This example illustrates the burden of the interpreter to follow the words of the legislature. Admittedly, there may be disagreement on such interpretation, as illustrated in the Westphal and Valcourt discussions above. But, always the elected representatives are afforded the opportunity to review such interpretation and to clarify their words as they deem appropriate.

The process is perhaps not necessarily efficient. But, the process calls upon the separate branches to remain in their lanes and to perform the functions that "we the people" designated for them in our adoption of a constitutional republic form of government. For its potential failings, ours really is perhaps "the worst form of government, except for all the others," as Winston Churchill once suggested? Certainly, it is not perfect by any means. But, if the branches remain focused on their roles, if judges remain true to words, then this imperfect system should produce consistent results for those who depend upon it. If we fail to give the plain meaning to words, well that would be "INCONCEIVABLE!" Or maybe you "do not think it means what I think it means?"

Personal Attacks Unbecoming

I recently read some interesting pleadings. These included verbiage that was harsh and untoward; it was not a display of professional behavior. The exchange between the parties led to the entry of an order by the assigned Judge. Of particular note in that order is the inclusion of a "reminder of professionalism" directed at the attorneys. That reminder is quoted verbatim below. 

This situation struck me for two reasons. First, the language choices were indeed unfortunate and the Judge mentioning that is laudable. Second, we once lived in an age of hearings where invective and hyperbole sometimes surfaced in the heat of a moment; but for such language to survive the review and hopefully, retrospect involved in drafting and proofreading is only more unfortunate. As a side note, there is some perception from the bench that proofreading has generally gone the way of the daily newspaper, the fax machine, or the rotary telephone. The statements in this case were written or dictated, read, hopefully (re)considered, and then filed nonetheless.

The pleadings included the following quotes:

"the Employer/Carrier's strategy is lackadaisical or intentional"  

"to say that request is vague and overbroad strains credulity"  

"the objection . . . is incomprehensible."  

"This is the very circumstance that provides the fertile ground for gotcha litigation long prohibited by Florida courts." 

"The hair-on-fire ranting offered up through the motion"  

"At paragraph 6 of his Motion, in an apparent fit of outrage and pious indignation"  

"The profound hypocrisy of this invective is underscored" 

"This reality brings to mind the proverb 'Those who live in glass houses should not cast stones'."  

"Claimant's lack of self-awareness and rank of subversion" 

"in refutation of the Claimant's baseless and self-serving insinuation to the contrary"  

"the Claimant's hypocritical chastising of the E/C is at minimum dubious and at worst completely disingenuous and meritless."  

"it boggles the mind that the Claimant would take offense to these responses"  

"infers deceit and gamesmanship on the part of the undersigned"  

"takes personal offense at the Claimant's scurrilous, contemptuous, and completely unfounded assertion"  

"little more than exercise in prurient navel-gazing"  

"Such aimless and sweeping tactics"  

"proposition is impractical if not preposterous."  

"Motion as a cudgel being wielded"  

"an improper and unwarranted 'fishing expedition', for the apparent purpose of harassment, annoyance, oppression, undue burden, and intimidation." 

The Motion to Compel was denied. The Judge, however, included the following in that order: 

REMINDER OF PROFESSIONALISM: The language utilized by BOTH claimant's attorney in the motion in question and E/C's attorney in his response to the motion to compel is inflammatory and unprofessional. Language implying E/C's strategy is lackadaisical or intentional and claimant's motion contains hair-on-fire ranting and is hypocritical are personal attacks unbecoming of the legal profession and distracting from resolution of the issues at hand. Pleadings, motions and responses, should be factual in nature without implying some nefarious or wrongful intent by a party or their attorney. 

The keywords there are "inflammatory and unprofessional." One might engage in a discussion of "who started it," but let's face it, that never worked with mom either. The point is that it "requires two to tango"; remember, "two wrongs do not make a right." Before you return hyperbole or stoop to ad hominem attacks, take an evening to think it over. Dictate or type that response if you must (get it off your chest). But then let it sit on the desk overnight and take a fresh look at it before serving or filing.

In that retrospective proofreading moment, ask yourself if the invective, insults, or abuse are: (1) necessary, and (2) likely to persuade your reader. Remember, at the end of the analysis, the client has hired counsel to prevail, to be convincing, to be persuasive. It is practical to suspect that being offensive, distasteful, and insulting may not lead to success. Choose words carefully, focus on the issue at hand, not the person, and strive to be the better person. Admittedly, that may not be easy. But as obviously, it is the path to take.