AI is a Tool

There has been a great deal written about artificial intelligence. It has been featured here many times. Chatbot Wins (June 2016); Artificial Intelligence in our World (January 2017); Intelligence (November 2022); You're Only Human (May 2023). I have been similarly concerned with the potential for manipulating what we see. Metadata and Makeup (May 2022). Most recently, AI and the Coming Regulation (September 2023) focused on the challenges with the law addressing this new tool that will change our world.

Imagine my surprise to soon after run across an article in the British Broadcasting Corporation pages on "a sleepy little town in southern Spain." This seemingly quaint spot provides an example of much that we should fear and loathe in artificial intelligence. It is child pornography, but with a twist that is virtually unimaginable, and frankly shocking.

In this example, no one took untoward pictures of children. No one downloaded such images from a server, dark web, or worse. These pictures were "generated" by an artificial intelligence. It was provided pictures of fully clothed children and told to hypothesize or generalize or create images without the clothes. The original pictures were posted in the public domain voluntarily. These young people or their acquaintances posted those originals on social media of their own free will.

The horror of this attack impacts (ongoing, not past tense) more than 20 children. The miscreants that created the images were classless in their creation. But, striving to outdo their depravity, they also elected to share these creations online. Children are reporting to their parents that deepfakes of them are being shared about town.

There is discussion of support groups, police investigations, and potential criminal prosecution. There is discussion of the potential that extortion was involved and how applications like WhatsApp and Telegram may have been (mis)used in the process. I shudder at the implications of such technology and the depravity of those who would exploit children in such a cowardly and despicable way.

The article reports that impacts seem to be varied. Some of the victims, and they are victims, have retreated into their homes. They have been driven to isolation and reclusiveness by the actions of others.

Despite the clarity of this situation, there is apparently "public debate" over the situation. There is discussion of shame associated with "crimes of a sexual nature" and the potential for reluctance in reporting. And there is reportedly failure of the law to keep pace with evolving technology. Specifically, it notes that "Spanish law does not specifically cover the generation of images of a sexual nature when it involves adults, although the creation of such material using minors could be deemed child pornography."

Could be? One might wonder what else it might be. At a minimum, it is cyberbullying. Potentially, such misuse of people's photos might be prohibited and policed. With facial recognition and similar algorithms, it is nearly certain that social media filters could spot these photographs, note their state of undress, and prevent their dissemination. Certainly, without question, more could be done than it appears has been discussed as yet. 

Fortunately, many parents are reportedly worried. Those with sons are concerned that they might have participated (or perpetrated). Those with daughters are "even more worried, because it's an act of violence." There is anger, recrimination, accusation, and angst. The deepfake concept is not new, and has been a thing since digital photos burst on the scene. But this is admittedly different, more disturbing, and predatory.

There is much to unpack in this story. There is criminality, morality, and fragility. Are we, society, prepared to sit back and allow miscreants to engage technology in ways that damage the most vulnerable in our midst? Will we allow the deployment of software that has such capability for harm and violation? Will we allow social media to hide behind its "we're just a service" excuses while such assault and attack occurs?

The entire world of business will be impacted by artificial intelligence in weeks, months, and years to come. There will be impacts on our health, safety, and welfare. We will be touched, perhaps aided, and certainly impacted by the new world coming. But, will we be forced to accept the surrender of our humanity in exchange?

The time is ripe for hard questions about how, when, and why to engage this new tool. It is imperative that we remember that it is a tool. A hammer is a tool, and likely indispensable. However, in the wrong hands, it may be a weapon rather rapidly. The key to tools is that their use or misuse is in the hands of the user. The challenge of the law is that it regulates that user effectively and sufficiently.

As we strive to see our future, let us remember those unfortunate children in Spain victimized by a tool and laws not prepared to protect them. The tool is inevitable, the failure of the law to address it is avoidable and frankly tragic.

The Challenges of Misdirection

The environment of work is a challenge from various perspectives including productivity, expenses, sales, staffing, safety, and more. Management or owners struggle persistently with maintaining a work environment that is amenable to the customer, the employee, the supplier, and the goals of the owners. And business of all sizes is impacted by the actions of government, state, local, and federal. Each influences the environment in which the business strives to persist and perhaps thrive.

The news is persistently, presenting us with examples of misdirected youth, lawlessness, and challenges. In the words of one tech entrepreneur, America “is going full joker.”

The impacts are being seen across the country. I have written about the closures of retailers in the past. See Evolutions in Economy (January 2022). However, the pace and pervasiveness seem to be increasing. One major retailer recently announced plans to close outlets in various locals. In other locations, it is locking its valuables behind cages. Once upon a time, such valuables included electronics, gems, jewelry, and similar. No, this retailer is locking up laundry detergent, baby, formula, and razors.

The latest example of youthful exuberance occurred in Philadelphia, Pennsylvania. Apparently using the convenient communication tool that is modern social media, "mobs" of miscreants descended en masse upon retailers and wreaked destruction. Catching a shoplifter, deterring a lone, miscreant is difficult. Confronting a massive gang is simply impossible. And when insurrection arises, government may be impotent to respond. As violence and even battles rage in America, there is little publicity or news reporting to support that those responsible for death, mayhem, and destruction in the supposedly "peaceful" demonstrations of 2020 have been brought to justice or even pursued.

The symptoms are all around us. I recently had the opportunity to visit one of the grandest malls in this country. It is a multi-level, conglomeration of some of the ugliest, goriest, and most expensive materials one might ever experience. I like my purses more staid and reserved. My distaste for such conspicuous consumption is apparently rather unique, as I can assure you many of my fellow mall patrons were not browsing, they were buying. I struggle to understand how one earns enough money for a $500+ handbag (For example only, I saw a lot of expensive merchandise).

But I was surprised there, to find my access to stores limited. Gone were the open and welcoming mall store entrances of my youth. Instead, the stores had glass display windows and lockable front doors. Most store doors were attended, and access was limited ("two at a time please"). Some stores, for whatever reason, had delegated an employee to this potentially dangerous task of access control. Others had engaged some third-party vendor in a security uniform. Two of those were armed security (nine-millimeter pistols with multiple visible extra clips).

How did America reach this stage? As I dictated that, I was drawn towards the word "nadir," but hesitated because I was uncertain we have reached the bottom. How? It began in the 70s, to my knowledge. (I don’t remember a great deal before the 70s, so it’s possible it started sooner but without me. The apologists of that era began explaining persistently that there were no bad people, only bad circumstances. They excused the "demonstrators" and made excuses for the assailants.

These social science advocates persistently pushed the narrative that everyone in society should be afforded every opportunity for rehabilitation and re-acceptance. In their enthusiasm and zeal, they were often heard to rely upon emotional arguments regarding some past wrong, misfortune, or disadvantage suffered by the unfortunate. The social scientists were adamant that tragic circumstances, humble beginnings, and more compelled us as a society to be understanding, forgiving, and complacent to the infractions of some (or all).

50 years on, no shock to many of us, America has grown into an increasingly lawless society. California has essentially endorsed shoplifting. In their efforts to avoid the emotional turmoil of dealing with wrongdoers, they have simply redefined “wrong.” This is an easy way out. There is a legal argument called the "slippery slope" that advocates use to argue against exceptions to rules and laws. Once you begin to make exceptions, they argue, you are on a "slippery slope" and may thus slide to the bottom eventually. Detractors find the argument unpersuasive at best and fallacy at worst.

Other jurisdictions find themselves plagued with roving bands of young people. We will refrain from referring to them in the pejorative “gangs,“ in order to preserve their impressions of self-worth, value, and equality. Video outlets are filled with examples of these mistaken, misdirected, and unfortunate youth temporarily procuring (in no way, casting dispersion, nor alleging their specific intent to deprive) automobiles that belong to others. Through no fault of anyone but these coddled, and enabled, miscreants, vehicles are stolen and driven at ridiculous speeds. People and property are damaged and law-abiding citizens are threatened.

Customers are deterred. People do not wish to visit shops in a location that threatens safety. People do not want their cars stolen. They do not want miscreants driving at ridiculous speeds in the streets, parking, or otherwise. Their high-speed antics are dangerous and a deterrent. Like that or don't.

These jurisdictions find themselves, unable to confront these threats. Too many have undermined, constrained, and vilified their law enforcement professionals and departments in recent years. They find those ranks diminished and ineffective (some claim "scared" to engage). They struggle to staff a police shift. And the police are at least somewhat reluctant to become involved for some reason. Some might cynically suggest that reluctance is based on the potential of becoming themselves vilified for having taken the miscreants to task.

What municipalities don’t lack is lawyers. There’s always plenty of lawyers. And therefore these cities are facing the miscreant theft problem with lawsuits. No, they are not suing the miscreants or their families or guardians. These municipalities have elected instead, to file lawsuits against the companies that build the automobiles. These cars, you see, are allegedly, simply too easy to steal. In the law, we might perceive this as an allegation of those cars being akin to an "attractive nuisance." That would be fallacious, but there it is.

The logic is predictable. The blame for poor behavior lies not with the perpetrator. The blame lies with those who suffer it.

Perhaps municipalities can begin to bring lawsuits against retailers, who failed to post armed guards at the door to their premises. In time, perhaps unguarded retailers will face increasing litigation pressure, and the financial impact of damages. Those damages will, similar to blaming the car producer, be based on that retailer having had the gall to place their goods in such a theft-ready posture. Retailers will perhaps shut down. They may close facilities, quit producing, or increase costs to all consumers in order to finance the resulting loss(es).

There may also be recriminations. As prices increase and availability diminishes, there can be complaints as to the decision. Jurisdictions may see repercussions. Those may be decreasing retailer populations. Those may be increasing prices of products (I designed a "100% safe car" years ago. It would be improbable to suffer any injury while driving it. It had a strange resemblance to an army tank but with much thicker armor. As designed, the vehicle had a top speed of 7 mph and took three gallons of fuel to travel a mile. But safe? Oh my! it would be safe). What a dumb idea. I have chided myself for the lack of environmental consciousness that led me to that impractical design.

Who should decide if an inexpensive vehicle should be on the market to facilitate different income brackets? Is there value in affordable cars? Some well-paid union members have complained that they cannot afford vehicles. They lament the challenges of the middle class. What of those struggling to reach the middle? Who is to blame when the most basic vehicle is priced out of reach due to all the gadgets and gizmos legislated?

Will anyone forego the recriminations for the producers and sellers? Will anyone suggest that theft, destruction, and ineffective justice contribute to encouraging the miscreant? In any population of cars, some model will always be the safest and another the least. One model will be the easiest to steal and the other the most difficult. If the manufacturers toughen a model in response to the cities' litigation, will that stop the miscreants or will they just move to the next easiest model to steal? Well, human nature being what it is, the miscreants will likely admit defeat and just quit stealing cars. Bravo cities! (Apologies for sarcasm, on the upside, the cities can just move to the next lawsuit). 

“Full Joker?“ Some, perhaps, interpret that characterization as referencing caricatures. Perhaps that reference evokes intrigue and even humor. The mistaken, collective, belief at the root is that punishing convicted miscreants is somehow inappropriate. The punchline is our willingness to punish the law-abiding while we ignore and coddle the criminal. We punish people who cannot shop in their own neighborhood. We punish people who cannot afford the overbuilt safety. It is deemed appropriate for those to pay the price in order that the miscreant is not put-upon, prosecuted, or prevented.

There will be those who expressed disagreement with these perspectives. They are perhaps the forgivers, the enablers, and the excuse-givers. They are maybe the folks who think everyone can have everything and the cost does not matter. They ignore the reality that if you make one substance hard to obtain, there is some population that will not forego, they will just switch. Have you tried to buy spray paint lately? Bring your identification, I kid you not.

Perhaps, instead, we might consider personal responsibility? Perhaps we might bring communities together to support the rule of law? What if we prosecute and punish the miscreants who are stealing the cars? Well, perhaps you can just call me mean or naive (I have been called worse, regardless of what adjective you might choose).

The alternative is pressure on the business. That pressure adds to the cacophony and distraction from the essential equation of employer, employee, safety, appeal, sales, profit, and persistence. By ignoring bad behavior, we threaten personal safety, workplace safety, and the existence of both employers and jobs. By ignoring, we create environments in which businesses do not thrive. Then we lament and complain when they close, when jobs are lost, when access is lost, when communities suffer. In the end, it is the customer and the employee that bears the burden of such decisions, but employers are impacted as well. 

The Emerging Leaders

It was another great day in the community on October 4, 2023. I was in Ft. Lauderdale (FTL) for another meet and greet with the local bar, judges, and more. It was so encouraging to see another community eager to gather in person again. There were some really pertinent questions and some good criticism. It is healthy to hear how the community perceives the OJCC, the judges, the mediators, and each other. 

Special thanks go out to the Section, Chair Paolo Longo, and Broward County Bar Secretary Diana Castrillon. I am so old, I remember her as a "Young Lawyer," and it is shocking to me that she has been in this community for twenty years. Throughout that time, she has been a contributor, organizer, and advocate for the practice, the local bar, and the community. I find her enthusiasm, energy, and longevity inspiring. 

A very critical point at FTL came with meeting a first-year associate. With every one of these gatherings (JAX, FTM, TPA, and now FTL), I have met young people. They are new, enthusiastic, and engaging. Let's just agree, we have to look to the next generation to replace us. In the meantime, they can supplement our efforts, learn from our mistakes, and contribute to the community. They bring a new wave of enthusiasm, energy, and ideas.

I have stressed this in a variety of posts. See Positioning Comp (April 2023). That post followed on the heels of the first OJCC Academy, a full day of socializing, skills development, collegiality, questions, and commitment. Another of those is booked full for October 16, 2023, in Tampa. The leadership for this programming has been primarily Judge Margret Kerr, with support from Mediator Ana Gonzalez-Fajardo. That does not discount the who-is-who of judges, mediators, and lawyers who have served as faculty. In all, a great program!

But, it is rewarding to see young lawyers in workers' compensation. They have great energy, but they face challenges. First, they are eager and willing. Unfortunately, some tell me that they are not getting the opportunities to get their feet wet. We have to remember that all briefcase-carrying and no responsibility makes for a dull job. People will not persevere or persist in dull jobs.

We have to remember that learning is critical. It can come from books, lectures, and observation. But, anyone who does much training at all will tell you that the act, the doing, is a critical part of education. These young folks did not go through the law school experience to carry someone else's papers, make coffee, or proofread filings. They want to practice law (so did you). They have the skills and the education (so did you). They respond to opportunity and engagement (so did you).

Next, we will roll into 2024. The coming of November marks some reasonably desirable road signs on the journey. For one, I do not tend to travel in November and December. Responsibilities call and the season can be demanding. 

Also, hurricane season officially ends in November. I am sure that many bad storms have come in November before, but I don't recall any. I am told that the aggregate is 35 since 1950. So, it is not unheard of. Only 21 of those strengthened into hurricanes. In my mind, getting through October unscathed, feeling those temperatures drop here in Paradise, and the unworldly displays of Halloween decorations, all signal an end to my least-favorite season of the year. 

But November also marks the "end of the beginning" of our planning for the annual OJCC education seminar at the First DCA. So we are now finalizing plans for that. We will be in Tallahassee for this program on Friday, March 1, 2024 (we have to get used to writing that year soon enough). It is going to be a great program and features a panel on emerging leaders in the practice of workers' compensation law.  Judge Hedler has been in charge of that program this year and has done admirably. 

Next year will also bring the second "annual" OJCC Academy, back in Orlando. The date is TBA, but will be in October. 

We will be striving to also visit law schools for the opportunity to speak to young lawyers about this practice, this community, and their place in it. There is so much opportunity here. Do you take opportunities to address law students? Do you have a connection with a Florida law school? Can you facilitate this type of event for the bar?

In the meantime, the Emerging Leaders of The Florida Bar Workers' Compensation Section is springing forward with programming. They are gathering and meeting. The young attorneys are sharing, growing, and interacting. They are building their own community within ours. How else can we support and encourage those Emerging Leaders? We need your suggestions and support in this effort. 

We are only about six months from the Forum in April 2024. Will you bring a law clerk or a young associate? How will they break into what's good here if you don't introduce them? In that vein, if you do attend any of these programs, please introduce me to your younger Emerging Lawyers.  There is much here, many here, and good here. Let's appreciate it, celebrate it, promote it, and share it!

Ready to Eat?

A couple of years ago, we heard the tale of a lawsuit over consumer expectations. Forbes explains that Subway was sued because it marketed "footlong" sandwiches. A customer noticed that his sandwich was eleven inches and sued back in 2016. The company settled the lawsuit paying "about a half-million dollars--almost all of which goes to the plaintiffs' lawyers." The litigation was intriguing to many. Forbes explains that most sandwiches were in fact 12 inches.

Another critical point was that the volume of dough was identical from sandwich to sandwich, and a few baked up a bit short. They estimated usually no more than 1/4 inch short. Those that were shorter instead were wider or thicker. Regardless, the volume of ingredients within the bread was standardized and identical. So, footlong or not, the product delivered the same.

The court in which the Subway litigation proceeded concluded that there was no systemic and persistent "less than 12-inch" damage. Thus, the character of the "class" in this class action was challenging. How would someone know if they did qualify? Did you ever measure your sandwich? Do you have some proof of that beyond your recollection? Did you say anything?

Forbes concludes that there were "many holes in the plaintiff's case." Nonetheless, the lawyers got fees and the case went away. The article offers advice to advertisers. Care "with numerical promises to consumers" was on this list. Beware also that lawsuits on the basis of "false advertisement" may fail to demonstrate "fire behind that smoke."

I was reminded of that in late July when a court dismissed a claim against macaroni and cheese, as reported by Reuters. This was a "$5 million class action or force Kraft Heinz to change its packaging." The macaroni maker advertised, including on the package, that the product would be "ready in 3-1/2 minutes." The plaintiff complained that time did "not include time to remove the lid, add water and stir in a cheese sauce pouch." 

Well, it did not include the time to get it off the shelf at the store either. The time commuting back home was likewise not included. The court did not notice that even with that "remove, add, and stir" time you might still eat it in 3-1/2 minutes. Who has not had a friend that preferred macaroni "al dente?" Some people like their grits that way. My Cousin Vinny, 20th Century, 1992. Who can forget "I'm a fast cook I guess." 

Another point that was not seemingly raised is the variable of temperature tolerance. Do you eat something fresh from the microwave? Or, do you let it cool? I know people in each camp, and we are seemingly a bit unpredictable in that way. Is it "ready" when it is done cooking or does it become "ready" when it is appropriate to eat as according to my particular preferences? In other words, is "ready" an objective measure?

The macaroni litigation was dismissed for a couple of reasons. First is "standing." We are obsessed in the legal world with standing. We do not allow people to pursue litigation because they perceive someone else having a problem. The problem must affect us, the plaintiff, personally. 

I explain this to my classes with a very insensitive joke about "shame" and "tragedy." Do you know the difference? Well, if your neighbor's house burns, that is a "shame." If my house burns, then that is a "tragedy." to have standing, you must demonstrate a "tragedy" in that sense - personal and actual injury. 

The Miami court in this instance noted that the plaintiff "never alleged that she could not eat nor had even tried to cook the" macaroni. This is not a conclusion that the plaintiff did not. She may have bought the product, tried to cook it according to instructions, and failed to consume it. She may have done so many times daily for weeks on end. But, she did not allege that she had in the lawsuit. 

Furthermore, the cooking process, as instructed, may have delivered a product "so flawed as to be rendered useless." But, in the end, we will never know because the attorney did not allege that. There must be tragedy (standing), and there must be personal damage, and the lawsuit must allege it, the proof must demonstrate it. 

The court also noted that future injury is unlikely as the plaintiff now knows that the 3-1/2 minutes is only the microwave time. Knowing the truth may make the representations on the package less damaging? There is also the insinuation that the 3-1/2 minutes was not meant to be inclusive of the time you spend considering it, pulling it from the shelf, buying it, driving it home, moving it toward the microwave, reading the complex directions (remove lid, add water, add cheese pouch, stir), following the directions, and microwaving. 

Maybe "microwave 3-1/2 minutes" really means that is how long you microwave it. Maybe, how long it takes to be ready comes down to a bit more time and may depend on whether you are the Mama bear, the baby bear or somewhere in between? What if you like yours molten and mushy? Perhaps your preference requires four minutes? What if my microwave is not as powerful as yours? What if, what if, what if?

I was reminded again of this story when CNN ran a story in September about a "flurry of lawsuits." It turns out that food in restaurant advertisements looks fantastic, tantalizing, and downright pretty. We are drawn by it, enticed to it, and perhaps disappointed by what we receive when we purchase. Reportedly, suits have been filed against "Taco Bell, Wendy’s, McDonald’s, Burger King and Arby’s" on the basis of pretty food (pictures) that is not so pretty.

There is potential that class action lawsuits will prevail against some purveyors on the basis that sandwiches were actually bought (standing) and failed to live up to expectations (tragedy). But, does any advertising stand up? Do the plethora of beauty products actually make me beautiful? Does that shampoo actually make my hair fuller? Does that clothing brand really make my life better? Doubtful. Long ago the law adopted the caveat emptor stance. Thus, it is to the buyer to decide quality in the process of purchasing. 

So, when the food is delivered, the consumer can choose. If it does not look like the picture (on the menu, the billboard, or the television) the customer need not consume it. Decline the proffer, and ask instead for your money. Go down the street to the next vendor and try your luck with their pictured fare. You see, a picture may be worth a thousand words, but many of those are the words of the observer. And advertisers have many tricks to make the photos attractive. 

Who has not checked into a hotel to find the rooms are not as large as they appeared in photos? Who has not ordered something from the Internet and been disappointed? Hint, nothing on the Internet or on the earth will make me look like George Clooney. I know full well that when I order fast food it will look like fast food and not like the Madison Avenue, dream world, impression used to sell it. If that disappoints or angers you, buckle up. AI and deepfake are bound to make that situation worse instead of better. 

I have heard through the grapevine that individuals do this. Some perceive a lack of candor in people's photographs on the Internet. My own associates have suggested it is time for a new profile picture on my social media. Alas, I perhaps do not look as good as I did in that photo twenty years ago, for which I paid hundreds of dollars to Glamour Shots? When you pick me for a panel or presentation, should you be able to sue when the old, real world, me shows up instead of the airbrushed, deepfake profile pic?

You mean the world is not straightforward and easy? You mean that I have to look out for myself? You mean I have to spend 30 seconds putting water and powder in my 3.5-minute meal? Yes, yes, and yes. Look out for you. You will be surrounded by efforts to gain your trust, engage your hubris, and entice your consumption. They will be less than forthright and may be puffery. They may be exaggerated to gain your trust and money. That said, it is unlikely that consumers will gain compensation for their disappointment. 

The fact is that most of us put our best face forward. We use a variety of efforts to look better than we actually do. The world of business uses puffery, exaggeration, and more to gain our business. But in the end, we decide whether the burger on the tray fulfills the expectation and deserves our dollar. If it doesn't, send it back. But please don't turn me down when I arrive for that panel. I am old and getting there is not as easy as it once was. 

Electricity and Socialism

We tend to think of the world as static and many struggle to understand that our modern world is pretty recent. You can make a case for automobiles dating to the 1880s, according to Whisbi. But the Stanley Steamer is given credit for much and was initially on the scene only in 1897. Oldsmobile is credited with being the first mass-produced automobile in 1901, according to CarsGuide.com. Ford gets credit for the assembly line in 1908. There is a lot of history in that article. There are those who see 1923 as a watershed moment, exactly 100 years ago. 

A lot of history in the last 100 years. Lenin's Bolshevik revolution dates to 1917-1923. Communism in the totalitarian state of Russia, the Soviet Union, and later Eastern Europe is recent history. The Chinese communist party is a little over 100 years old, and the totalitarian People's Republic dates only to 1949. Communism is simply not that old. Totalitarianism is admittedly much older. Britannica's discussion touches on some world history, Czars, Emperors, and Kings; its discussion centers more on authoritarianism and totalitarianism in a modern context. Much of it socialist (Germany and Italy) and communist (Soviet and China). 

So, automobiles have really only been a thing for just over 100 years. If you think of the volume of concrete and asphalt out there, we have been pretty impressive with our infrastructure response. Despite all that building, there remain places where persistent road shortages nonetheless seem to persist. Even where the road volume is perhaps sufficient, we hear tales of "crumbling infrastructure" and the need to rebuild. Perhaps to the tune of $2 trillion. That is what some would consider a large number. 

Oregon was a big innovator in the automobile. Oregon? The Reason Foundation notes that it came up with the idea of taxing gasoline in 1919. That makes sense. If you are going to build roads, bridges, and parking you will need money. All the states followed along, and the federal government joined the gas tax club in 1932. The national government and the states all collect significant gas taxes on the sale of gasoline. 

And, they have grown. Reason Foundation notes that "Currently, state gas taxes range from 14.32 cents per gallon in Alaska to 62.05 cents per gallon in California, not including the 18.4 cents per gallon federal gas tax." The fact is government is addicted to the inflow of revenue from gas taxes. According to Consumer Reports, "Fuel taxes account for 84 percent of federal and 29 percent of state highway funds." Like it or not, gasoline is building all those onramps, overpasses, bridges and more. 

Note that these are expressed in "cents." Investopedia explains that these are "excise taxes," and are largely expressed in this volume manner, so many cents per gallon. Despite that trend, "some states charge based on the amount spent rather than the volume of fuel purchased," a "sales tax" model. The per-gallon rate will not keep pace with inflation. There is a big difference between a $.1432 tax in an age when gas costs $1.00 per gallon (14%) and when it reaches $5.00 (3%). This is not calculus. Even I can do this math. As gas prices skyrocket is there any reason to suspect the price of concrete and labor will not? The excise model is designed to fail in this regard. 

Notably, the same era dating to the early 1900s defines the age of American workers' compensation. It too was designed by most states to be self-supporting without general tax revenue funding. Assessments (like taxes) are collected on each policy sold. Carriers contribute this way to trust funds that carry the cost of regulatory and adjudicatory services. In some states those funds contribute directly to worker benefits, education, and more. Workers' compensation is clearly socialism in the spreading of loss across large populations. One can argue it is capitalism in that private carriers cover risk and draw profits. But the socialism argument is far more persuasive. 

Back to the way gas taxes began as a "user pays" concept. The vehicles would be the customers using the roads, and by taxing the gasoline those who use the roads most pay the most. Drive more, pay more. This was even reasonably logical in the context of commercial vehicles, heavier vehicles caused more wear and tear on those roads, but they require more fuel and thus contribute more to the revenue model. Some will see a simple and logical foundation for "user pays."

But not all the gas tax money collected goes for the facilities, roads, and similarly related needs. Reason notes that 25 states divert funds from their fuel tax collections for other purposes such as bicycle paths, transit projects, police protection, and even education. The gas tax has become a driver of roads, development, and yet more. 

And, in a general sense, Investopedia notes that "the revenue raised from gas taxes has failed to keep up with rising infrastructure costs and inflation." So whether from shortfall or diversion, the taxes are not keeping pace with the expenditures. Believe it or not, electric cars are part of this, fuel-efficient cars are part of this, and inflation is part of this. The problem is multi-faceted and complex. See, anything that decreases gas sales diminishes gas taxes. It is simple math.

So road tax revenues have fallen short in recent years. The cars have become more efficient and the gas prices have discouraged travel. The inflation cycle has impacted both revenues in and the cost of projects out. See Inflationary Cycle (July 2023). Despite the revenue shortfalls, "Revenues from fuel taxes were approximately $32 billion at the federal level and $51 billion at the state level in 2021," according to PlugIn America.

In just a few (7) short years, if all goes to the master plan, "50 percent of all new vehicle sales (will) be electric by 2030," according to the White House. That will mean a great deal of market shifting. As a student of history with a memory of the Cold War, I vividly recall studying the Seven-Year Plan of the Soviets. It was a take-off from the earlier Five Year Plans of totalitarian regimes. Some believe the resort to 7 years was an admission that 5-year plans did not work. Despite the many Soviet failures, the Chinese joined the Soviets in their pursuit of centralized market controls. You honestly cannot make this stuff up. Governments have persistently failed to reign markets. You can argue that the socialists did exactly that in those totalitarian regimes, but they will have to face the reality that their central control merely fed the rise and growth of black markets where capitalism and reality supplemented their failures.  

Despite criticisms of totalitarian or authoritarian government, it can absolutely influence the consumption of products. The government can legislate availability to some degree. The U.S. government effectively regulated convertibles out of the market in the 1970s. Oh, you could get them, but you had to buy a regular car and pay an after-market shop to cut the top off (thus a market existed, but not one the average consumer could readily access). The government can tell you not to grow wheat, force you to buy health insurance, and the list goes on and on. It can make businesses ensure worker livelihood by insuring against workplace injury. That creates costs for all employers that are subsumed within the prices we all pay for goods and services. Workers' compensation socializes injury costs. 

While we are not there yet on cars, there are indicators. You cannot buy a car without seat belt alarms, airbags, backup cameras, and soon impaired driver detection. That is a regulatory path. Government is driving up the cost of goods, enforcing its view of safety, and in the process deciding what we can or cannot buy. I would love to have a car without all that junk installed. Similarly, the federal government has been giving tax credits to people who buy certain EVs since 2009. With a carrot or a stick, the government can decide what you should buy and strive to convince you. The tax credits are carrots, and one might argue the gas tax is a stick. The higher the price of gasoline, the greater chance you will give in and go electric with less muss, fuss, and angst. 

That is worth repeating. The government has used tax money to pay people essentially rebates on cars that do not contribute any road tax revenue. The electric car purchaser enjoys two benefits, tax credits, and fuel tax avoidance. Gas consumers pay for their road and the road used by the non-contributing electric car. In the interest of full disclosure, I have invested some in several electric vehicle manufacturers. The fact is that electric is likely to grow market share with or without Uncle Sam. I am betting, through my capitalist investment, that it will grow and profit. 

As the EV population grows, how will electric vehicle owners pay their "user pays" contributions to the roads, bridges, and more? How much do EVs contribute to the road taxes? In the plainest sense, they haven't yet. You subsidized your neighbor's EV purchase and you subsidize its use each time your neighbor drives somewhere. Your neighbor is cruising and you gas users are paying the bill. But various states are now struggling to find a method for finding that fair share, through "revenue replacement" according to Plug in America. This may come in the form of taxes or registration fee differentials, but it is coming. See as electric increases so decreases the gas consumption and the tax revenue. 

That is one complication. The other is the electric supply. I ran into a college-educated scientist one day at a social gathering. The scientist engaged in an argument with an electrician (who installs EV equipment as a regular part of work) about electric amperage, service, and supply. It was depressing. The scientist could not grasp that electricity has to be made somehow, transmitted, stored, and distributed. The scientist literally said, "No it doesn't, it's in my house, I just plug into the wall." A scientist. I kid you not. Let's be clear, electricity does not occur magically. 

Where does it come from? Most (80%) of it comes from burning fossil fuels and nuclear. The alternative fuel folks admit that only about 20% of electricity in America is from "renewable energy," like wind, hydro, solar and similar. But wait, the central committee says we will have 80% of electricity from renewable by 2030 (another seven-year plan) and 100% by 2035. Many are betting on this. Others have some doubts. Regardless, government has decided on this course. This blog will remain in 2030 (even if I quit writing new stuff). My prediction today is that these seven-year plans of the central committee will not come to pass. 

The LA Times reported this year that California expects fewer "brown-outs" (power shortages) in 2023 after significant investment in its power grid. Some fear that electric cars will create voltage demand, and strain the power grid. Others cite examples in which EVs have dumped their charge back into the grid in peak demand moments because electricity was needed and otherwise elusive. Of course, that was in the same era that EV owners were told not to charge their cars in the first place to decrease grid demand. When you are told you cannot charge that car, it will not be of much use to you. 

Will there be enough electricity to charge all those batteries? If so, will that energy be more or less efficient than the fossil fuels of today? Will this country spring from 20% to 100% renewable energy in the next dozen years? Will Americans accept nuclear as a solution? On the horizon is cold fusion. It has made some interesting progress lately. If not, then we will continue to burn fuels in order to generate electricity. As demand increases, we will burn more. The solution in transportation may drive higher costs for electricity generally.

It is all so challenging.

See, the same issues apply to workers' compensation. The inputs, the costs, are all subject to supply, demand, inflation, regulation, and more. There are only so many doctors to treat injured workers. They can each be told by the government what can be charged, but that may simply drive them to treat other patients instead. We can strive to limit the care available, but that may merely drive patients to consume in some other market using her or his own money. We can charge premiums based on payroll (increasing inflow) and yet limit benefits (maximum compensation rate) to deprive high-performing employees of their share. This allows the social insurance system to provide benefits to the lower-earning employee. It is subsidy and socialism. 

Back to electricity. Make no mistake, California is an EV place. Its Governor said that 18% of all car sales there were EVs in 2022. Forty percent of the EVs sold in America are sold in the Golden State. They love EVs in California. California plans to only sell EVs, 100%, there by 2035. But, who will pay for the roads in an all-electric California? That will be a challenge to face. 

But wait, there's more. Forbes just published an expose of "a shocking new income re­distribution scheme" in California. The state has implemented a "graduated" scale for electricity rates. The utilities are working now to implement this Marxist plan: “From each according to ability; To each according to need.” The government is apparently going to share Californian's income information with the utility companies and direct how those companies charge for their services. 

The utilities will charge people for electricity based on how much they use (like the rest of the world), a consumption or volume measure. However, the innovation is that the rate will be adjusted based on the income or wealth of the consumer. The more money you make or have, the more electricity will cost per kilowatt. This perhaps fits well with the new "7-year plan" to expand the population of electric cars. It will also help to collect the "more" from those who can pay and facilitate subsidies to others. 

But this is not just to charge your car, but to run your air conditioner. It is a graduated rate for all electrical consumption. The person that lives in a 2,000-square-foot house already pays less for electricity than the California celebrity living in 10,000 square feet. That is because of consumption volume. The new price scheme will exacerbate this. This new plan will allow your proverbial neighbor to benefit from you paying more, or for you to pay less because of the wealth of your neighbor.  "To each  . . . "

Hotels are reportedly already getting into the spirit of EVs. One is reportedly offering a "free" car charge if you stay there. Well, that is, it is "included" in a mandatory "destination fee" that all guests will have to pay at this hotel, $30.00. So with some clever doublespeak, "offering" becomes a mandate, and "free" becomes $30.00. So those not driving EVs will subsidize those who are (all guests pay the $30.00). And the hotel will charge everyone this new tax whether they want any of the supposed amenities or not. All for the greater good. Perhaps the Capitalists can get along with the Marxists. 

More electric cars, more renewable electricity (or nuclear). It is all in the current seven-year plan, or the twelve-year plans. Is Marxist electrical cost the answer?

But, these two plans need not be inextricably intertwined. This Marxist methodology could be as easily implemented with internal combustion. Gas is averaging $5.00 per gallon in California according to AAA. Perhaps the government there could require that you input your license tag number or driver's license when using a gas pump? The registration would tell them how expensive your car is. If the car is new and expensive, then perhaps $25.00 per gallon. If the car is old or inexpensive, then perhaps $1.00 per gallon. You could pay for your neighbor's gasoline and their electricity. 

Wait, this could be even bigger. Why not have cameras at the fast food drive-through, to evaluate your wealth similarly? If you drive a nice car, the "value meal" is $35.00, and if you drive an economy car it is "2.00?" That might even get a few of us out of our cars to walk into the counter? We could link people's tax returns to their credit and debit card accounts. Want a new shirt at the Big Box store? Scan your card. If you make money, the shirt is $100.00, and if you are a more modest earner then it is $10.00. "Oh, brave new world." You could do so much more for your neighbors. They deserve it. 

Weight. There is a great point. Harvard says "Roughly two out of three U.S. adults are overweight or obese (69 percent) and one out of three are obese (36 percent)." If you add up the two out of three and the one out of three, you might get 3 out of 3 (Note, I did not attend Harvard). But, this more likely means to convey that 1/3 of us are obese and 1/3 are overweight (those two added together get you close to the 69%, the "two out of three"). How about a scale at the food store? The more you weigh, the more the government taxes your food? Fat people could be made to subsidize food. Thin people would pay less and could thus buy more and vice-versa?

Government could bring a utopian existence in which everyone lives together in perfect harmony. Through regulation and directed taxes, it could coerce us in what we wear, eat, drive, and do. With good seven or twelve or five-year planning and market direction, all inequity and suffering would end. (Sarcasm, sorry). 

Folks, socialism was a farce when Marx wrote it. It remained a farce as some of the largest economies in the world repeatedly sought unsuccessfully to engage it (none of Stalin's thirteen five-year plans ever fulfilled their purported destiny; yes thirteen). Socialism remains a farce today. The only thing that has changed over the years is that the epic failures and suffering of Marxism, socialism, and communism have been forgotten by too many and never learned by some. And don't get me started on authoritarianism and totalitarianism.

There is much income re-distribution in America. It exists today in a variety of government programs. It is nothing new. I might argue that as a whole workers' compensation has been spectacularly successful as a cohort of capitalism. It has been a constrained, defined, and predictable method of assuring the costs of injury are in the price of the goods and services that are produced by any business. The costs are real, and it is socialization. It has included detriments (drug-free workplaces, safety device use, etc.). It has included incentives (premium discounts for various behaviors). And it has been less than static with various states engaged in some form of tweak or adjustment over the decades. 

But this recent move in California is worthy of study. The implications of such a plan on such a scale are intriguing. The specter of Marxism is apparent. The move toward greater socialism is as curious as it is troubling. We might even reach a point where the American taxpayer bails out people who make poor purchasing decisions and incur loans that they cannot or will not repay. I know a few people who owe more on their cars and homes than they are worth. The government might borrow from our children or tax one segment of society to afford relief for the bad decisions of other segments. 

You cannot make this stuff up. But you can think about it. Can socialism co-exist in a market economy? Workers' compensation proves it can, and successfully. But is there a tipping point at which people with means will simply shift their location or consumption to avoid costs and contribution? Perhaps. If nothing else, this latest California experiment will be intriguing to watch. What will the view look like in 100 years looking back?

A Little Lagniappe

Several years ago, I read an interesting story regarding the human condition, and how our minds work. It involves a food vendor, who charged more than competitors for french fries. Despite the price difference, and the perceptively comparable product, this vendor found great popularity. The fries were served in a container, just as at other stores. 

However, this vendor placed the container inside a bag, and thereby what might be called "extra” fries fell around the container into the bag rather than back into the heating tray. The perception of the consumer purportedly receiving something extra was seen by that author as driving brand loyalty. The author contends that those "extra" are "just an illusion." Tell that to my waistband. 

I am somewhat enamored with a particular vendor as regards my daily soda. I consume too much, too often, and too readily. They had me at "diet," as fallacious as that is. I have striven over time to forgo soda. However, I find it extremely difficult.

I am drawn to this vendor by the somewhat ridiculously low price. I am certain, despite this, that the business makes substantial profit from the sale of soft drinks. See Can I Get a Team Gulp (July 2014). As a result of my soda, loyalty, that outlet tends to dispense all of the gasoline I purchase. My feelings (or addiction) are sufficiently pervasive to motivate a working knowledge of where their outlets are around the state, and periodically a map search for a location. It is likely beneficial to their bottom line that I perceive value in their soda fountain. 

My perceptions of their business benefit are also enhanced otherwise. They deliver a periodic “you’re good.“ If you haven’t experienced this, maybe you’re shopping in the wrong places. Repeatedly, I will visit this merchant around the state, fill my fountain drink and proceed to the register only to face the cheerful question. “is that all today.“ When I respond “yes,“ I receive a cheerful “you're good.“ I often protest as I harbor some guilt at their beneficence. However, they are invariably insistent, persistent, cheerful, and utterly gracious. That alone is important. 

Having made no other purchase, conveyed them no benefit, they simply convey this gesture. They do it with a smile and spontaneity. It is, in a world of increasingly disgruntled, disassociated, and frankly rude retail interactions, a huge charm. 

Their attitude, courtesy, and the free drink are a significant draw. As I traverse various highways, it is not uncommon for me to venture out of my way to patronize their store. I have often driven past many of their competitors to fill up and grab a soda. I am obviously pleased by the service and the courtesy even when there is no free soda, but let's be honest, it helps. 

Obviously, I am in no way, endorsing or advocating for this unnamed business. The point of this blog is to illuminate the value of the lagniappe. For the uninitiated, this French word came to the popular vernacular through exposure to the Big Easy. Obviously, that metropolis did not make this word, but it made it real, at least for me. Lagniappe means:

"a small gift given to a customer by a merchant at the time of a purchase; broadly : something given or obtained gratuitously or by way of good measure"

In the days when the Big Easy was the land of milk and honey, one was frequently treated to a little something extra. Your meal might be delivered with a little bowl of jambalaya, red beans, or Etoufee. Any mention of not having ordered this was met with “that’s all right,“ or "I know.“ Most times there would be some accompanying familiarity "honey," "sugar," and similar were common. A smile was invariable. The South is indeed a wonderfully gracious place. 

The lagniappe is a gesture. It’s a courtesy. It’s a pleasant surprise and compliment. It’s an attitude that signals gratefulness and appreciation that you came in. It, undoubtedly builds loyalty, encourages rapport, and encourages repeat business.

I hear about lagniappe in the world of Worker’s Compensation from a variety of professionals. Lagniape comes in the form of trinkets, personal attention, and other values. Each year at the various conferences, I see people with buckets of trinkets they are lugging home. I have never been one to collect such. 

But I am particularly enamored with the personal attention aspect, that is so often lacking in our modern society. In fact, I might drive out of my way to make purchases even if there was never a free soda. It is quite possible the cheerful and utterly gracious alone would be sufficient lagniappe. 

A smile (no offense) might just be enough. Workers' Compensation is a service industry (community), so it might be good for us to remind ourselves and each other of that periodically. You never know what someone is going through. The smile can be in person, or someone can simply hear it over the phone. Harder to convey it in an email, but personal attention is easy even there. 

Is it so hard to inquire about someone's day ("How are you") and literally listen to what they reply? Is it so hard to remember a little something about them (as if you value them intrinsically - "how is your son's little league going?"). It will not move the world, but it might just be the little something extra that allows someone to feel valued and appreciated. The little Lagniappe might go a long way to make someone's day. 

Find a way to make the gesture (Sorry, no, you can't buy me a soda). 

Dress Code?

The New York Times recently published a take on the acceptance of slovenliness in our world. Can't we all just ignore hygiene and wardrobe and get on with what really matters? See What We Lose When We Loosen Dress Codes.

If you missed it, the august and respected United States Senate recently pitched its dress code in the refuse pile. Some celebrate it, some decry it, and others see it as merely a false distraction from the real challenges and issues facing the republic. There is merit perhaps in all three perspectives. The reason for the change is likely a senator who makes no bones about it: "I dress like a slob?”

There is nothing wrong with slobs. I have known many. They have been introverts and extroverts, tall and short, funny and droll. There is no pigeon-holing the slob. Intermingled within them are the New World Order of other various appearances that some find disturbing: tattoos, wild hair, or looks generally. Let's be clear, I am not likely to notice how you look. More importantly, I really don't care. 

I see people's personal appearance as a personal choice. In my own defense, I am never at all certain what colors go together to begin with. I am no fashion maven, make-up expert, or social influencer. If you believe that thing you are wearing is fashionable, striking, or more, then more power to you, I say. I see no reason you should not be able to. If sharp teeth are your choice or culture, more power to you. Horns? sure, go for it. You be you. But, know that some might disapprove, stare, or even gawk. "Don't say I didn't, say I didn't warn ya," Blank Space, Taylor Swift 2014).

The author of the NY Times article suggests that how people dress, and their appearance, "telegraphs intricate messages to those around us, as well as to ourselves." There is suggestion there that our perceptions of dress are "entirely context-dependent." She suggests that there is no surprise or question in our seeing "A tuxedo’d guest at a wedding," but "A tuxedo’d guest at a picnic is a spectacle." That context-dependence is likely true in a variety of things.

A man with horns, facial tattoos, and pink hair is likely perfectly expected in some settings, and perhaps a distraction in others. A woman wearing neck rings is perhaps mundane in some settings, and not in others. Or, stated differently, such a person is perhaps perfectly expected by some observers and is a distraction to others. A famous keeper of keys noted this similarly, the way uniqueness may stimulate attention:

"Well, of course he was interested in Fluffy. How often do you come across a three-headed dog, even if you're in the trade?"

(Hagrid, Harry Potter and the Sorcerer’s Stone, Warner Brothers, 2001). With all due deference to the man with horn implants, "how often do you come across" that? That is not any manner of deprecation. You be you, that is what I always say. But, if you are the only one in town with purple skin and yellow teeth, be prepared for some people to do a double take. Shave your head and no one will likely even notice. Shave half your head and perhaps they will look twice. There is nothing wrong with your look, but the difference is just like being the only one at the picnic in a tuxedo. The mind picks up on "different." 

The Times author notes that there are perceived challenges to a "code-free" world. There is discussion there of a disparate impact on those who perceive themselves to be women. The author describes a fair number of choices that she contends import disparate challenges applicable only to women. Not ever having been a woman, I defer to her and others' perspectives on this point. That said, perhaps her view is a bit constrained? Maybe those many challenges are faced as well by those who think they are men? 

But, one conclusion resonates perhaps more broadly: "Decisions all carry a perpetual risk of tipping us somehow into 'inappropriateness.'” That is rather a stark conclusion. Perhaps it is more fair to say that any decisions tip us to being noticed. Whether we are overdressed (tuxedo) or under (shorts and flip-flops), we may set ourselves apart. That may lead us to being noticed and criticized. See, as much as I respect your right to look as you wish, I also respect the rights of the observer to be surprised, off-put, or worse. 

While that is intriguing, is it really new? Is it really novel? I suspect I own a couple of ties that may fit in this "inappropriateness" category. I have been told that there is a reason that tie or that shirt was on a table at the retailer with a sign that said "Free, take as many as you wish." 

The Times author says that the way people look can impact them. She questions whether clothing are intricately interwoven into the way they are perceived. It seems to be the perception of the observer rather than the intent of the wearer that is of concern. Would certain appearances "deprive (one) of gravitas?" Would appearance rob one of "dignity and authority?" Would appearance "exacerbate . . . inequity?" This is likely to be a resounding yes. If you dress up in a clown suit with a big red nose, it is probable some people will expect you to be a clown. You can put that down to prejudice, bias, or worse. But, you cannot claim that it surprises you. 

The conversation continues with complaints or criticism of the Senate's discrimination in this action. It is noted that the new relaxed dress code (or absence of one) applies only to the Senators. The staff and support there are apparently required to remain true to a code of formality and structure. There is no mention as to whether the staff might sport tattoos, horns, or brightly-colored hair. Let us not even begin down the path of piercings. In our world of egalitarianism, why do rules apply selectively to some?

The author stresses strength of "commonality" and similarity. There is a perceived strength in some degree of uniformity or similarity. And when our U.S. Senators begin wearing shorts and hoodies to the ball, there is some angst or anxiety expressed. But, in the end, does appearance matter? Can someone be effective despite the predilections of appearance, the choices of attire and more?

I have no inkling whether there is power in appearance. When you look like me, you never put any stock in appearance getting you any advantage. I will, alas, never be viewed as attractive. My chances of being "internet famous" ("no one (cares) if you are Internet Famous," Life Sux, Leah Kate, 10K Projects) are entirely dependent on shock and awe (a unicorn in my forehead perhaps?). Or is it Instagram Famous? Beauty will never get me anywhere. But is there some such power for those who can simply color-coordinate a tie with the rest of an ensemble?

In the world of seeking redress, is there purpose or pitfall in appearance? When one appears before a judge, stated simply, does appearance matter? I would suggest that the answer is yes. That is not to say that everyone does not have the absolute right to look as they wish. They do. Without question. And, another fact is that everyone in the world has bias. 

That is a rock not many will turn over. Like it or not, people are biased. We all know it, but few will admit it. Bias comes in all kinds of shapes and sizes. A good summary is here, but it is very cursory. For more depth, look at the 175+ types of cognitive bias here. Judges are trained to both recognize bias and combat its influence. But, humans are humans (or at least I believe so, that could be a bias). Some say, as regards cognitive bias:

"Research suggests that there are more than 175 different types of cognitive bias. It refers to deviation from standards of judgment whereby you may create inferences, assessments, or perceptions that are unreasonable."

Get that "you may create." The bias is yours. You decide. And if you are in the "I can look as I want" camp, then bless you. You do you! But know that the bias and perception belongs to the observer. Your affinity for any appearance may empower you personally, and simultaneously compromise your effectiveness, credibility, and gravitas in the eyes of others. You can lament that, but, well see Taylor Swift above. 

So, dress as you will. The Senate has decided that for at least some there any clothing choice is appropriate. That means senators can wear whatever they wish. But, they cannot decide how people will perceive them for it. Make no mistake, the formality of a dress code does not change that, people might have previously thought them all stodgy and pompous for all wearing suits and ties. But, the code merely institutionalized a "look" so that there is some anonymity in the crowd (if everyone is made to wear a tuxedo to the picnic, tuxedos will perhaps not be perceived as odd to any, or as to so many, observer(s)).

All that said, showing up to a hearing in your basketball shorts and hoodie is not recommended. Sorry, bias. Parties, lawyers, witnesses, and more should strive to appear neat, clean, and presentable. If you have horns, well I'm not sure how to advise you. But, whether it offends one's individuality or not, appearance matters. I have studied trial proceedings and judges for decades. I can tell you that your appearance both matters to the finder of fact and can be a distraction. 

Like it or not, all a judge may remember about you is that you have purple hair, horns, a spider-web tattoo on your forehead, or a very noticeable piercing in your nose, forehead, or face. Did you think it was unnoticeable? Of course not. You like it and desire it. But you cannot control how it is perceived. 

In a trial, you need not wear designer clothes. You need not have your hair or nails professionally done. Trial is not ever a fashion show or pageant. But, clean and neat may be important or critical. If everyone is wearing a tuxedo, then you may be more comfortable and effective in one too. If you cannot abide tuxedos, then wear your basketball shorts. However, remain aware that how others perceive your choices may impact their acceptance of you and your arguments, statements, and thoughts. Like it or not, a judge or jury may discount your testimony because of your appearance. 

In the Spielberg classic, 1941, the protagonist enters as a waiter in a breakfast cafe. The movie's premise is "war nerves" following the Japanese attack on Pearl Harbor. Americans have died and people are scared. The protagonist wears a gaudy shirt with "Pearl Harbor" printed among many American Flags. There is abuse and a fight. After the fight, the following exchange occurs between the soldiers and the protagonist (Wally):

Cpl. Chuck 'Stretch' Sitarski : "You ain't gonna tip him, are you Sarge?"

Wally Stephens : "It's OK! I don't need your tip!"

Sergeant Frank Tree : "I think you do, get rid of that shirt."

Should appearance matter? Absolutely not. The fellow wearing the dog collar with a bull ring through his nose should be treated the same as the lady in the clown suit. The kid in the Pearl Harbor shirt should not be assaulted in the restaurant. The man wearing an environmentally-conscious recycled material sweater should be treated the same as the man in the mink coat. Everyone should be perceived and treated equally. No bias should ever intrude. Grow up. "Should" does not equal "would." 

Is it a realistic expectation that no bias will exist? It is not. People without (fill in the blank here, horns, piercings, tattoos, purple hair) are likely to notice those with that affectation. They may look down on and therefore doubt those who have it. I had a judge tell me a face tattoo story once, and a finding of the witness lacking credibility. I questioned why and the judge said "anyone with a face tattoo like that lacks judgment and therefore credibility." Anyone judge? Davero?!?

Maybe, just for today, go for the neat and tidy. Perhaps, for the sake of probabilities, strive to minimize the potentials for distraction. If there is a reason for distraction, by all means, own it. If you will be the only physician to testify, dressing like a physician at trial may invoke precisely the bias (doctors are smart) that you seek. If the challenges of your job are relevant, put them on display (a laborer appearing wearing a lifting brace is a visual reinforcement). But be wary of what you intend to communicate and the potential for unexpected perceptions.

Expression is free (bless that Constitution and those who wrote it). You may look as you like. Be a slob and be proud. But, know that you control only the outgoing message. The rest of the world is just as free to fault you for that expression. Sure, that is not fair. Sure, bias is often bad. Sure, that is the way it is though. Be a slob. You be you. 

AI and the Coming Regulation

The Florida bar has jumped feet first into an amazingly complex topic: artificial intelligence. A special committee has been formed, which was featured in The Florida Bar News recently: AI Tools & Resources Committee to Draft Rules and an Ethics Opinion. It is reportedly addressing a multitude of potential issues.

In Complicated, Avril Lavigne rendered some advice that might be a consideration as we embark:

"Chill out, what ya yellin' for?

Lay back, it's all been done before

And if, you could only let it be, you will see"

Tech is not new. Disruption is not new. Ethics challenges are not new. Sure, technology helps you do things faster. Mitch Ratcliffe said, “A computer lets you make more mistakes faster than any other invention with the possible exceptions of handguns and Tequila.” And in the end, AI is all about computers. So now, perhaps we can make mistakes even more efficiently.

Nonetheless, there is varied interest in AI, ranging from ambivalence to curiosity, and anxiety. No one seems to know anything for sure. It is fine fodder for the water cooler, coffee room, or webinar (shameless plug, join us for The Point on September 28, 2023; we are discussing AI with some experts). Compared to me, anyone who can spell AI without help is pretty much an expert. 

The Bar expresses an overriding anticipation that AI may be able to enhance “access to justice." There is a persistent angst in the legal community that we must do more to democratize access to legal services. Not necessarily enough angst to trade in the Maserati for a Hyundai, but angst. For decades, it has been clear that each end of the human spectrum can achieve reasonable access. Those with money hire counsel and others qualify for appointed or volunteer counsel. But the middle class has been largely or wholly ignored in those pleas for democratization. How does a working person pay hundreds of dollars an hour for a will or to resolve a property dispute?

There is thus AI anticipation, appreciation, and hope for a “Brave New World.” But there is evidence of concern and anxiety. I have personally expended significant time experimenting with artificial intelligence (more on that below), see also Intelligence (November 2022); Artificial Intelligence in Our World (January 2017); AI and the Latest (June 2023). Despite that, and more, I am woefully unprepared for the coming revolution. 

What lies ahead fills me with a thrilling excitement, yet beneath it, a subtle undercurrent of fear hints at the unknown challenges that await on this uncertain journey. How many seminars have you attended regarding AI? How many articles have you read, how many conversations have you engaged in, and how much time have you invested? I can assure you, confidently, that, regardless of your answer to those questions, you have not done enough. Not worried? "You will be" (Yoda, Star Wars, The Empire Strikes Back, LucasFilm, 1980).

Some of the human reaction to the coming of our new robot overlords is downright humorous. The Florida Bar and others are carefully looking at ethical considerations, and their human rules (Rules of Professional Conduct). They have brought together their best legal minds to address the coming cataclysm. Or, perhaps they are that young man with flowers? (Men in Black, Columbia 1997).

Most have heard the stories of the recent intrepid ineptitude in the great state of New York. Mamma Always Said (June 2023). All have heard the story of these rocket scientists who chose to engage an AI tool to draft legal pleadings and elected not to proofread, or cite check. They billed their client for the effort, (over billed?), and filed their lazy "work" with the court. 

In response to that human debacle, courts around the country have begun entering orders requiring attorneys to sign certifications regarding the (non)engagement of AI. Organizations engaged in the licensure and discipline of attorneys are actively discussing rule or regulation amendments to regularly require such certifications. Remember Harry Potter and the Prisoner of Azkaban (J.K. Rowling, 2004)? - “I solemnly swear that I am up to no good.” I enjoy both affirmations and protestations.

Certifications are nothing new. The Florida Rules of Procedure include a requirement that litigants certify that they are using the correct font and pitch. Fla. R. App. P. 9.210. Every time I read that rule I think of Chico Marx (yes, I can see the font and likely can judge the pitch, but the certificate does perhaps remind me that I should care). There is a broader implication, without the label "certificate." Every time a Florida Lawyer signs a document, this is a "certification" under Fla. R. Gen. prac. Jud. Admin. 2.515. The lawyer's signature on the document is a certification that:

1. the attorney has read the document;
2. to the best of the attorney’s knowledge, information, and belief there is good ground to support the document;
3. the document is not interposed for delay; and
4. the document contains no confidential or sensitive information, or that any such confidential or sensitive information has been properly protected by complying with the provisions of rules 2.420 and 2.425.

So, let's be honest. I am presented virtually weekly with the old "I did not know it said that judge, my (fill in "paralegal," "secretary," "law clerk," etc.) wrote this." That is fine. But, counsel, you signed it. Did you "read the document?" Did you make conclusions about it? And, let's be absolutely fair, the Fla. R. Gen. prac. Jud. Admin. do not apply to workers' compensation proceedings (perhaps this one should?). 

But, what of the Rules of Professional Responsibility? They apply to all lawyers in all proceedings. 

Rule 4.1 says lawyers will be "competent," which includes "knowledge, skill, thoroughness, and preparation." The comments to that rule clarify that this includes training, education, continuing education, and "inquiry into and analysis." 

Rule 4-1.3 says lawyers will be diligent. The Comment refers back to competency, see above. The lawyer should keep the client informed and engage them in discussion as regards "the means by which the client’s objectives are to be accomplished." Imagine informing the client you are going to bill them for some work, but have an LLM (Large Language Model, another name for AI) spit out the documents you will blithely and blindly file on their behalf. 

Rule 4-2 says "a lawyer shall exercise independent professional judgment and render candid advice." What the document says represents that judgment. 

Rule 4-3 says "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein unless there is a basis in law and fact for doing so that is not frivolous . . ."

Rule 4-3.3 says "A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or . . . "

Rule 4-3.5 says "A lawyer shall not seek to influence a judge, juror, prospective juror, or other decision maker except as permitted by law or the rules of court."

Rule 4-5.3(b) says "(2) a lawyer having direct supervisory authority over the nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (3) a lawyer is responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer:"

"knowledge, skill, thoroughness," combined with "inquiry and analysis," applied in an "indepdent," "professional" and "candid" manner. Through "judgment," within the "basis in law and fact," the lawyer will avoid false statements, correct inadvertent falsity, and alert the tribunal to what is known. And, the lawyer will be ultimately responsible for her/his own and the performance of her or his team in this effort overall. 

At the end of the day, I have to ask a quite simple question. I would appreciate you, taking it in the spirit, in which it is intended, and considering it deeply. It is simply this: who cares? Perhaps that seems flippant or irreverent. Apologies. Lawyers are delegating to non-lawyers every day, regularly submitting pleadings they claim to have never read, misrepresenting facts, and worse. This is known, too often accepted, and frankly ignored. Not all lawyers. Not by a long shot. I know a great many who take their oath, responsibilities, and the cited rules very seriously. But, every day sees violations in some corners of the state. 

Will a new certificate about AI change that? Will this new certificate impede those who scoff at and ignore the current rules? Or, will it merely burden and inconvenience the lawyers who strive to be compliant, professional, and thorough already? Too often, America reacts to perceived challenges with new laws or regulations rather than enforcing what is already on the books. The new regulation route is easier, quicker, and seems positive. New regulations can signal action but won't make us face the current sloppy practice. Certify we did not use AI?

Let us consider a parallel. Do we expect accountants to sign certificates that this filing (say a tax return) was (or not) created with the help of QuickBooks? Do we ask engineers to certify that the calculations for this bridge were created with the help of Microsoft Excel? As the age of enlightenment has dawned upon us, have we ever even imagined asking someone to certify that the foregoing blog post benefited from the employment of Google searches, spellcheck, grammar check, Brief Catch, etc., etc., etc.? I hope you get the picture. How did I write this? Where did I glean the perspective, the citation, the conclusions? 

You see, perhaps many are going to foist upon you, an unlikely, illogical, and factually false premise, that AI is new. It is not. In fact, a great many of the lawyers, paralegals, doctors, engineers, accountants, and other professionals with whom I have worked over the last millennia have, in fact, been artificial intelligence. Sorry, that is demeaning and dismissive. But, if you met them, if you just talked to them (heavy sigh). In fact, we might make a valid argument that some of them weren’t "intelligence" at all. I re-read that sentence, and I find that it is utterly insulting, abrasive, and accurate. My apologies to all, but read on. 

Back in the day, I used to go to a place called a “courthouse“ in which records were stored. In order to keep my clients abreast of the various litigations, I would inquire there of a human being, who would retrieve a large bundle of papers related to a particular case. We called it a "file." I would sit at a table, and I would observe those documents while furiously scribbling notes on something we called a “legal pad." Sometimes I would read the documents into a tape recorder. 

Many of today’s acolytes and fledglings will suggest how much easier it would have been to simply snap a picture of those documents with my handy cell phone. However, in those days, “phone meant something different.“ (Jumanji, Welcome to the Jungle, Sony 2017). Yes, Virginia, there were no camera phones. Admittedly, many of us had cellular phones, but they were bolted to our vehicles. They were dependent upon our vehicle’s battery and were only useful for making calls to people. Weird, huh?

Later, back at the Batcave, I would read my notes into a tape recorder  or put them into a "file." If recorded, someone across the hall, and down the way, would listen to my droning, obnoxious voice, and transcribe those thoughts onto paper (using a typewriter, word processor, or eventually a personal computer ). 

In my process of dictation, I would augment my lack of intellect by cheating. I’m ashamed to admit it, but coming clean now seems appropriate. Back years ago, I had obtained a book, a book of knowledge, in which I could reference words, and find other words that sounded more supercilious and pompous. We called it a Thesaurus. I used those words, as if they were my own, and inserted them into those documents, in order to create the impression that my intellect was greater than it was. Not of my intellect, but borrowed. Of course, subject to my judgment.

When my resulting document would come back to me for proofreading (back in those days, lawyers, actually read documents before sending them or filing them), I would carefully look for errors in grammar, punctuation, and even spelling. In the spirit of full disclosure, I often cheated using another "book" called Strunk and White, a dictionary, or another publication. Again, not mine, but my judgment. 

But, we proofread. Nothing went out the door without being checked. That was another era. Lawyers today don’t proofread, they don’t use “books,“ whatever that word means. That is because for decades, as documents are now created in computers, suggestions have been made regarding spelling, grammar, and word use. We have all come to both expect and accept the help of these genies in the machines. Their intelligence is not real, and it is not new, but it has never seemingly worried us. That fundamental AI has been with us for years.

We similarly received help from secretaries, paralegals, other lawyers, and more. We asked folks to read, react, and opine. We took their input (or tolerated it) and perhaps made changes to the original output that was our own. But, yet again, my judgment. You could suggest I tone down the insulting, abrasive, and accurate, but whether to leave it or delete it is my judgment. I can use you, and pick your brain, but in the end, I decide what is in this blog and what is not. 

Lawyers perhaps became lazy, spoiled, and dependent. There’s a very good chance that without these tools, most of us would be unable to find our way to the bathroom by ourselves. Do you know where your dictionary is? Do you even remember when you saw it last? If the electronic age ground to a halt, Would you be able to handwrite a document, find an envelope, calculate the postage, or figure out where to mail it? Technology is a huge benefit, but I gotta admit it’s making us all somewhat dependent and less abled.

In those forays to the courthouse, I encountered fantastic verbiage. I read compelling arguments, eloquently stated, and effectively presented. Don't tell anyone, but I used what I found. I copied. I plagiarized words and relied upon the fantastic and exceptional research and writing that I perceived (In college, using other's work like that is plagiarism, but in the practice of law it is merely the highest form of flattery). That said, I checked every one of those case or statute citations before using (judgment). I used those lawyers' work without attribution, but I remained "independent" and applied "judgment." I used my own "inquiry and analysis" in deciding what I would harvest, what I would use, and how. 

That said, that research was not all mine. The interpretations and arguments were not all mine. I was standing (carefully) on the shoulders of others who had come before me. I was benefitting from others who had already plowed similar fields. I was benefitting from their intellect and their work. But, and this is critical, I never counted on it, blindly accepted it, or substituted it for my own judgment. And, in truth, I frequently found seemingly trail-blazing and amazing stuff that turned out upon closer examination to be fanciful, forced, or even false. That stuff I threw away (judgment). Those authors' conclusions and arguments did not meet my standards and did not rise to my acceptance or reliance. 

The Florida Bar rules already require lawyers to be frank and honest. They stipulate that when a lawyer signs her or his name, they are certifying the document contents. Despite this, many lawyers have abandoned that responsibility. Many would be absolutely shocked and appalled at the sloppy, inconsistent, illogical, and false representations that appear above the signatures of revered and respected attorneys. Those lawyers do not respect your rules. They do not fear your rules. They do not care about your expectations or seek your approval. They could care less about your scorn. They perhaps decided long ago that the only line that matters is the bottom line; is it "all about the Benjamins?" (Puff Daddy, 1997, Atlantic Records). 

I respectfully submit, that no one needs additional rules regarding artificial intelligence. In the first instance, AI is here, and it is inevitable (Thanos, Avengers Endgame, 2019, Marvel). The rules already cover the challenges. Does it matter where a lawyer gets data, phraseology, grammar, or arguments? The fact is that whether this comes from a partner, paralegal, some other lawyer's filings, or an AI, the lawyer remains responsible for exercising independent judgment, being analytical and critical, and producing the ultimate product. We certify that when we sign. The source or origin is not novel in that it is an AI. That is a distinction without a difference. "Build a bridge, and . . ." 

When lawyers don't exercise judgment, why not take some action? When lawyers inappropriately and blithely defer to paralegals, ignorantly or unthoughtfully cut and paste from some LLM, or even plagiarise some other lawyer's wretched refuse, why not merely discipline them for failure to comply with our existing rules? The fact is that too much has been delegated, deferred, and ignored already. Most (perhaps all) lawyers know it. It is not a secret. There are simply not enough troopers on the information superhighway to pull them all over. Only the most egregious scofflaws ever get stopped. Few of them are ever punished. 

Perhaps we "don't want the truth because deep down in places you don't talk about at parties," (A Few Good Men, Columbia 1992) you need to rely on paralegals. Perhaps one cannot earn a living in this profession without such economic leverage? Perhaps an honest day's work for a day's pay simply won't suffice? I have heard some interesting representations over the years about how much a lawyer "can't" operate an office on. 

My all-time favorite occasion was at a meeting, and that same lawyer offered me a ride back to the airport in his hand-made Morgan. Perhaps the bottom line is the overriding truth and the be-all and end-all? And if so, then why not just ignore the existing rules as well. But, if the rules matter, then respectfully, the existing rules quite handily cover any bad behavior that might come from engaging Artificial Intelligence.

In the interest of full disclosure, this blog post was prepared through dictation to an iPhone, it has been enhanced through the use of Chat, GPT (one paragraph was composed by it), and other LLM, and it has benefited from automated spellcheck, grammar check, dictionary, thesaurus, been manipulated on a Microsoft Surface using Microsoft Word and similar programs. Ultimately, it was processed onto this World Wide Web with the assistance of programs such as Grammarly and more. Despite that, for the most part, it’s my work. In the end, the judgment (or you might say lack of it) is all mine. Yes, Virginia, some of the foregoing was included merely to touch your nerves and keep you engaged. 

And, so that we are clear, if I had not told you the truth about all that technology I engaged, you would likely not have been able to discern it (which paragraph above is not mine?). You see, students have been extensively using AI for a while, and professors (the smart ones called "doctor" and "distinguished," and more) cannot really tell. So say the students. So say the Doctors. You see when someone turns in or files garbage, the source does not matter, the lack of judgment does. And, if they produce and present impeccable work, do we care beyond the fact that they are either brilliant or savvy enough to be skillful borrowers? In college, absolutely. But in practice?

So, we can learn how to use this next iteration of the Age of Enlightenment, or not. But we cannot kill AI. We cannot prevent it or hide from it. AI is here. We simply cannot "go upstairs and book a conference room." We cannot "talk (AI) to death." (Bourne Identity, Universal 2002). My certificate and disclosure above add nothing. Let's admit that the other certificates don't add much either.

If you are going to add a certification, why not make it simply "By signing, I certify I have complied with all rules regulating The Florida Bar." Perhaps that focus on the existing rules would move us forward? If it won't, I would suggest no other certification will either. Some will argue that such a certificate adds nothing (see above re fonts), but such a certification might just remind some lawyer why she/he should care?

If you agree with me, good for you. If you disagree, please attribute that to the evil and awful AI that created the parts of the foregoing that you find bothersome. We can be productive or we can sit back and "harumph" through this. In the end, AI will come. As you ruminate, know that will be true. It will come whether you steal the "Who-feast" or not (The Grinch that Stole Christmas, Universal 2000). We know that because it is already here, and perhaps so well disguised that you didn't even notice.

It will all be alright. The world will not end. For more on the topic, consult someone smarter than me. See Is Skynet Near (Pamela Langham 2023) and AI for Legal Risk Management (Pamela Langham 2023). Be patient, be observant, and be aware. AI is here and it will make practice and business better. It might even help to increase the bottom line. See you all on the other side.