Common Sense or Evidence?

The Florida First District Court recently rendered Cabrera v. Kablelink Communications, case 1D20-736. It is an instructive opinion as regards burden of proof. A concurring opinion additionally provides interesting insight into the task of statutory construction; workers' compensation is inherently dependent upon statute for its existence and therefore such construction often lies at the heart of disputes. Understanding the intricacies of statutory construction is a critical tool in this community.

The critical issue in Cabrera involved coverage of the workers' compensation statute. Workers' compensation generally is a benefit and burden to employers and employees. Stated that way, there are periodically questions regarding who is burdened and benefitted. The crux of these statutory systems is that the answer is "everybody."

For example, employers are burdened with liability, often for injuries that occur despite their utmost efforts; they are benefitted by limitations on damages and tort immunity. Employees are similarly benefitted by rapid entitlement to benefits, even when the employer was not negligent, and a general absence of tort defenses such as comparative negligence. Note that the burden of one is the benefit of the other. The system is a conglomeration of various benefits and burdens generally in a macro-balance. See Micro v. Macro Analysis (April 2019).

The overall concept of workers' compensation is also generally mandatory for employers and employees, except in Texas. See Staffing, Compensation, and Opt-out (November 2017). There are usually exceptions in state statutes for very small employers; Florida is mandatory for employers with four or more employees, section 440.02(17)(b)2 and 440.02(15)(c)(2), Fla. Stat. That mandate is general, and there is a more restrictive constraint for construction businesses; If the employer is in the construction industry then the requirement is for "one or more." Thus, coverage is required for a greater population of businesses in the construction industry.

The coverage by workers' compensation is not without cost. Whether an employer retains financial responsibility for workers' injuries and illnesses, called "self-insured," or purchases an insurance policy to cover such expenses, there is financial impact to the business. The premium for workers' compensation insurance is calculated by reference to the number of employees a business has and the payroll it pays. Therefore, it is important to know who is or is not an employee, and for each person's payroll to be accurately recorded/reported. The alternative to employees is for a business to hire an independent contractor.

That distinction between "employee" and "contractor" is at the crux of the dispute in Cabrera. The parties did not dispute that Mr. Cabrera was performing work "in 2016 when he fell from a ladder and was severely injured." He contended that he was an employee of Kablelink and the company contended that he was an independent contractor. The critical point, according to Mr. Cabrera, was his allegation that "he worked 'in the construction industry.'” See § 440.02(15)(c)(2), Fla. Stat.

The Court noted that there was a contract that said Mr. Cabrera was an independent contractor. That such a contract may exist is not uncommon in contractor relationships. However, the statute controls the interpretation of such agreements. Thus, if the law concludes one is an employee, a contract to the contrary may provide no relief. Mr. Cabrera argued that the statute should override the contract and conclude as a matter of law that he was an employee and thus entitled to benefits. This led the Court to analysis of what "construction industry" means.

The trial judge concluded that Kablelink and Cabrera were not in the construction industry. The appellate court agreed, affirming the trial judge's order. The Court explained that “Construction industry” means for-profit activities involving any . . . substantial improvement in the . . . use of any structure . . . ." Furthermore, it noted that the statute also provides that "the division may, by rule, establish codes and definitions thereof that meet the criteria of the term “construction industry.” Section 440.02(8), Fla. Stat. Thus, what is or is not included in the "construction industry" was a question that the legislative branch delegated, at least in part, to the executive branch.

The Court focused on the Division's rule, which is dependent upon work codes that are used to define and delineate job functions. The insurance industry has determined that there are varying degrees of risk in different occupations. To quantify and classify those risks, insurance has compiled a list of occupations and work descriptions. These definitions are used to determine how work is defined and therefore classified for the purposes of insurance premiums. The Court noted that in defining "construction industry," the Florida Division of Workers' Compensation rule "incorporate(s) the classification codes and descriptions." That "Kablelink’s work didn’t overlap with" construction codes was deemed pertinent by the trial judge.

The Court further explained that the analysis of whether work was “in the construction industry” depends on "whether it involves working, performing services, or engagement 'involving . . . substantial improvement in the . . . use of any structure.” Section 440.02(8), (15)(c)3., (15)(d)(1), Fla. Stat. (Emphasis added). Thus, in a prior case, the Court found a fall compensable when the worker was "working to seal and repair a hangar’s roof." Ficocelli v. Just Overlay, Inc., 932 So. 2d 1230, 1233 (Fla. 1st DCA 2006). However, it concluded a truck driver was not involved "in the construction industry" when he was "injured hauling construction . . . debris." Allied Trucking of Fla., Inc. v. Lanza, 826 So. 2d 1052, 1053 (Fla. 1st DCA 2002). Thus, consistent with other aspects of workers' compensation, labeling will not be as persuasive as the actuality (labeling the contents of the vehicle "construction debris" was not controlling). 

The analysis, the Court explains, is in the work performed and whether that work "involv(es) . . . substantial improvement in the . . . use of any structure.” Section 440.02(8), (15)(c)3., (15)(d)(1). The Court held that Mr. Cabrera had the burden of proving that his work did "involve substantial improvement," and that he had not met that burden.

An intriguing element of the Court's explanation addresses common sense. The Claimant argued that evidence was not necessary to satisfy the burden of proof. Mr. Cabrera argued instead that his work should be deemed related to "substantial improvement" “as a matter of pure common sense.” This is seemingly a proposal for an assumption that should be made about work performed, its purpose, and its effect. The Court did not accept that "pure common sense" or assumptions control. It noted that even if one made such an "improvement" assumption about the nature of a business, "the evidence in this case shows little of whether Claimant was working or engaged in the construction industry when he sustained his injuries."

For clarity, the worker had to prove that his "cable installation work involved a substantial improvement in the use of the homes that he served." Concluding that he had not proven that, the Court affirmed the trial judge's determination. In the absence of proof that work "involved a substantial improvement," the Court had "no basis for reversing the JCC on the record before us." In trial, it is critical to provide evidence. See If you are not Perry Mason, Bring Evidence (May 2013)

A concurring opinion in Cabrera notes that the decision is "is eminently correct." However, it provides an insight into the construction of statutes, the use of language, and is instructive. This opinion describes there are "two separate elements that had to be established before the JCC in this case could conclude that the claimant was an 'employee.'” This conclusion is based upon the language used by the legislature in two statute sections.

In one, with the use of “working or performing services in the construction industry,” section 440.02(15)(c)3., there is a focus upon "the actual work being done by the claimant at the time of the accident." This is the present tense ("ing"). This also involves analysis of the "arising out of" requirement in section 440.02(36), Fla. Stat. For more on the "arising out of," see It's not That the Wind is Blowin' (June 2021). The concurring opinion notes that the tense of 440.02(15)(d)1. is past tense ("ed"), "that the claimant was “engaged in the construction industry.”

Thus, the concurring opinion directs the reader to both "attention backward in time, to the claimant’s historical work" and "the type of claimant’s routine, day-to-day work historically performed . . . leading up to the occurrence of the accident." This suggests that a worker must prove:

"both that the claimant’s accident occurred because of his doing work in the construction industry at the time, and that his work as an independent contractor regularly or consistently was in the construction industry over a period of time preceding the day of the accident."

The decision provides guidance in three perspectives. First, the definitions of work classifications may be of relevance in determining a question such as this regarding what is or is not "construction." Second, the burden is clearly on the injured worker to demonstrate that the work performed was "involved (in) a substantial improvement" to property. Finally, the letter of the law may be critically important and there is the potential for even the tense of words to be of import in interpreting statutory meaning. For any that would interpret the law or render advice, there is merit in the study of Cabrera v. Kablelink Communications.

Is Federalization in the Wind?

It may be that they are from the government and that they are here to help. Hard to accept that, but read on. 

Back in 1969 Robert Redford and Paul Newman starred in an American western titled Butch Cassidy and the Sundance Kid (20th Century Fox 1969). It had some great quotes in it, but one of my favorites is Butch telling Sundance "boy, I got vision, and the rest of the world wears bifocals." That's one way of putting it. A fairly colorful way. Years later, I was reminded of it during the closing scene in The Matrix (Warner Brothers 1999) when Neo quits seeing the surface and starts to see all the little ones and zeros that are the real world underneath. Our world is complex, and seeing beyond the surface can be a real challenge.

Late last week I received a link to a document purportedly regarding U.S. federal education spending. It is titled "Amendment in the Nature of a Substitute to Committee Print Offered by Mr. Scott," and purportedly resides on a U.S. House of Representatives website. The document leads with discussion of the "Rebuild America's Schools Grant Program," Section 20001. It goes on from there with sections about school "Construction," and "Indian education" (which is likely an unfortunate and inappropriate reference to indigenous peoples), and specific programs for institutions, occupations, and even tuition grants. It is all about education. Well, on the surface.

At about page 114, section 21001, there comes the "Labor Matters" header. I am indebted to the soul that managed to read through 114 pages of education funding proposals and actually found this other reference. It begins with money for "Mine safety," OSHA, "enforcement," and "activities." Then, on page 115, the other shoe drops. There we find

"$121,000,000 to the Office of Workers’ Compensation Programs for carrying out activities of the Office relating to claims activity, policy and standards development, and monitoring of State workers’ compensation programs."

I checked in with my old friend Horace Middlemier.* He had already read this, and commented on the amount. He said "I know $121,000,000 isn't a lot of money, but this could be just the beginning." I'm not sure where you get the "not a lot of money." I told Horace that seemed like a good deal of money, about enough to pay 800 analysts at a total cost (salary and benefits) of $150,000 each. My first thought, though, was just give me one percent of that total and you can "color me gone."

It has not been that long ago that we all talked seriously about the potential for federal interference in workers' compensation. The signs have been there for a long time, dating at least to the creation of the Occupational Safety and Health Administration in 1970 and the National Commission on Workers' Compensation report in 1972, see Highlights from 1972 Commission in Workers' Compensation. Despite the history since that report, there are a fair number who are turning out now to celebrate the 50th anniversary of it and commemorate the effort. Another post on that topic is Where do we go from here (March 2016). In truth, that effort and report has not changed much of anything for the better over the last 50 years. A great many of the "reforms" it spawned were nothing short of disastrous temporary detours. Some argue that there is not much there to celebrate. I leave that to the reader. 

More recently, we discussed this federal interest in workers' compensation during the National Conversation, see Some Geeks Gathered in Dallas (May 2016). That was one of the highlight meetings of my career. There were no agendas, presentations, or PowerPoints. We just had a great conversation. In reality, I spent most of my time listening to the others. I learned a lot about history, perspectives, and perceptions. 

You can learn a lot by listening (No one sent me $121,000,000; not that I know of). That meeting will stick with me as it was the last time I saw David DePaolo. His was an insightful and at times abrupt perspective on our world. On November 4, 2021, the Comp Laude program will present "What Would David Say," to try and channel his unique perspectives on today's issues, five years since he left us. I am honored to have been invited to participate on that panel. As I write this, I pondered what David would say about federalization and returned to what he did say about it.

Federalization was on people's minds back in 2016. There was a lot of discussion among us geeks about the 1972 report, a letter then recently written by some legislators, and the probable plans that President Clinton was likely to look towards in the opening days of her administration. The bottom line is that there are those who believe that workers' compensation benefits are not adequate, and they advocate for increased statutory amendments. There is little, if any, discussion in that regard about whether such increases would be likewise beneficial to business that bears the cost, or ultimately those of us who purchase goods or services.

In fairness, there are some that will never believe that any government program is sufficient. Remember when Credence Clearwater mentioned such an analysis in 1969? In Fortunate Son, they say "When you ask them 'how much should we give'," well "they only answer More! More! More!" In the struggle of modern society, we see an environment of limited economic resources and a propensity to spend as if there is no tomorrow. There is currently a U.S. national debt of over $26 trillion ($26,000,000,000,000). Some question what level of debt is actually sustainable. Whenever we borrow through our limit, seemingly we just raise the limit. Not having resources has never stopped us, but some suggest the pace of spending is increasing. Twenty trillion of that is attributable just to the last 21 years. That is twenty-thousand billion dollars. 

At the National Conversation in 2016, commentator Bob Wilson (the moderator of the Conversation) suggested that he perceived a parallel for federal intervention on the horizon. He noted the manner in which the government insinuated itself into workers' compensation through the Medicare Secondary Payer Act. That was passed in 1980 and started to finally have a workers' compensation impact around the turn of the century. 

Some would argue the cause and effect there are inverted; they would argue that workers' compensation insinuated itself into Medicare; that it affects Medicare. Those folks forget that workers' compensation was here long before Medicare was created in 1965 as part of a massive expansion of government wealth transfer and socialization. The early workers' compensation programs were fifty years old when Medicare was born, and even the last state's program, Mississippi, was nearing adulthood by then. No, Medicare and the federal government came for workers' compensation in 1980, striving to correct flaws and poor planning in the design and implementation of Medicare's social welfare programming. 

If Social Security next comes for workers' compensation, it should similarly be clear that all but two state workers' compensation systems (Arkansas and Mississippi) already existed when Social Security was enacted back in 1935. No, workers' compensation never came for Social Security either. 

Mr. Wilson suggested in 2016 that there could be a similar "Social Security Disability Secondary Payer Act" that would allow a logical path for the federal government to siphon some money out of workers' compensation to assuage the upside-down financial crisis we face. While there is focus periodically on that $26 trillion, and growing "hard debt," there is almost never any discussion of the "unfunded liabilities" (promises made without attached dedicated revenue streams, "soft debt") that are Medicare and Social Security. The "real" total debt including such promises is estimated at about $123 Trillion, and climbing. 

Every few years, they warn us that Social Security is moving toward insolvency. Last month, The Washington Post noted that currently the sky will fall in 2033, or 2057, or perhaps the sky will forever be propped up by stop-gap solutions, funded with more debt? See, the funding was never adequate because everyone hates paying taxes; that has been exacerbated by us all living much longer lives these days, thanks to modern medicine and good living. But, like it or not, these social systems for retirement and medical care are not self-sustaining and will persistently require bailouts. Or, perhaps there is some plan to inflate out of all of this? I will address this soon in another post, but suffice it to say here that inflation is already upon us. How is your grocery bill lately?

So, the federal office of Workers' Compensation (an agency meant to maintain and manage a program for the federal employees) will do one hundred million dollars worth of monitoring of state systems? Will that be "the beginning of the end, or is it the end of the beginning" for the Tenth Amendment, state authority, and our embattled system of balanced federalism? Before answering, consider the "power of the purse," speed limits, motorcycle helmets, drinking ages, and texting while driving, See Four Times the Government Held Highway Funding Hostage (The Atlantic 2014). Some will argue uniformity and centralization are positive, others see benefits and detriments in various government forms. I often warn students in class to consider whether consistency would mean everyone has the system you personally love or the system you don't. 

In a broader sense, will we get our hundred million's worth? The bigger question perhaps is whether we can get our $123 trillion's worth, but we could begin with the small stones. Confucius long ago used that to explain incrementalism. While it may be that incrementalism is the villain that got us here, perhaps it is potentially part of the solution as well? Maybe an inverse Dirkson maneuver in which we remove a "hundred million here and a hundred million there and pretty soon we are talking about real savings?" In the theme of Alice's Restaurant, what if that led to "a billion here and a billion there" or even a thousand billion (trillion)?

Will it ever bother anyone that there is never any question about whether these thousands of billions of dollars invested in pet projects ever accomplish anything other than further proposals for "More! More! More!?" In the end, with the budget deficit, the debt ceiling, and the discussion of a platinum $1 trillion dollar coin, will this state workers' compensation monitoring proposal remain in the federal budget moving forward? Perhaps the Department of Labor can produce an annual version of the 1972 report? Do states need advice or direction on the management of workers' compensation programs from the fiscal experts in Washington?

It is intriguing to see this federal intervention subject raised again. It reminds me of Ronald Reagan's famous "most terrifying words in the English language" quote. It is likely that more government is not the solution. Send me a check for $121,000,000 and I will be pleased to write you an annual report criticizing whatever you wish criticized. On second thought, make it a money order, I'm just sayin'.

*Horace Middlemier is a fictitious person and any similarity or coincidentiality is pure happenstance. 

Robot in the News

This blog has periodically reflected on technology and how it is changing the world around us. See Chatbot Wins (June 2016), Artificial Intelligence Surveillance (August 2020), Nero May be Fiddling (April 2017), and Hallucinating Technology (January 2019). Another example of that came to the news recently, involving "Mr. Go" a vending machine that will make and serve you a pizza in about 3 minutes.

This is no soda machine or dispenser of pre-made fare. The Mr. Go is complex. So complex, it is cleaned regularly, "but every two or three days it's completely dismantled" and sanitized. This mechanical wonder mixes flour and water, spins it into dough, kneads it, sauces it, tops it, and bakes it. The whole deal, from nothing to pizza, costs you about 3 minutes and $5.30 to $7.00.

The MSN.com writer who traveled to Rome to sample this was seemingly impressed. There are four varieties of pizza available. The system contains enough ingredients to produce up to 100 pizzas. Some critics argue that for the price one might obtain a "lovely woodfired marguerite" or a nice snack in a local bar for even less. But, the inventor claims no intention of competing with restaurants, bars, or pizzerias. Instead, this is seen as filling an unserved niche.

Admittedly, this is not necessarily "real pizza." The innovator and others have likened it instead to "piadina," which is an Italian flatbread, often used in sandwiches. An actual pizza dough, according to the innovator, "would dirty the insides of the machine" and present more challenges; tomayto, tomaato? Notably, just making this snack overcame challenges. A hot, fresh snack in 3 minutes? Bellissimo!

The author notes that late-night food in Rome is a challenge. She says there have been times when she was "desperate to eat something," and that "Mr. Go would have been heaven-sent" in those instances. This is, according to the innovator, "an idea to create something that wasn't there: pizza at night." Will this come to America, and if so could it threaten the vast legions of pizza producers/deliverers? Possibly not. But, a three-minute pizza on a college campus, high school cafeteria, and similar settings might become a huge hit. And, even if not in a vending machine, might such a robot make the next delivery pie you order?

Without or without the full automation of a free-standing kiosk machine, technology is nonetheless booming in America's post-COVID. The Associated Press cites examples from artificial intelligence ordering at fast food restaurants to devices performing more complex tasks. Overall, this is seen as a negative impact for unskilled workers in the short run. The pandemic has accelerated the deployment of robots and artificial intelligence. In the long run, this technological revolution we are seeing is expected to fuel "more jobs than they destroy," but, the AP notes this will not be simultaneous and there will be "growing pains." Skills will be increasingly necessary to enter the workforce of the future. 

The most threatened occupations noted by the AP are "salesclerks, administrative assistants, cashiers and aides in hospitals and those who take care of the sick and elderly." These occupations are threatened by employers "eager to bring on the machines." It reports a growth in equipment investment of 26% since 2020 (around when the pandemic hit America). There are now machines that do the cooking, clean the store floors, and deliver food in hotels. Couple these potentials with the coincidental challenge employers face in finding workers willing to return to the job, as reported by the Society of Human Resource Managers (SHRM) and the convergence is only likely to encourage this (r)evolution. 

The pace and variety of technology's breadth and depth are each notable. I was recently confronted in the grocery store by what I thought was a runaway riding floor cleaner. As it approached, however, I noticed that the driver's seat was cordoned off. About 5 feet from me, It sensed my presence somehow and stopped until I moved away. An eerie harbinger of things to come. I reflected on that as I later scanned my own purchases, paid, and bagged my groceries. That store regularly has a single check-out with a human staffing it. This morning, I reminisce on the idea of a person with a mop that used to be ubiquitous before there were even riding floor cleaners. 

As employers make these investments, there will be less opportunity in what might be entry-level jobs. The AP expects "The consequences could fall most heavily on the less-educated women who disproportionately occupy the low- and mid-wage jobs," and somewhat unexpectedly in the service sector of the economy. Some anticipated that so-called "contact jobs" were relatively safe, and yet artificial intelligence and robots are quickly becoming a significant factor in the service industries.

Is Mr. Go a cute novelty? Is it a harbinger of things to come? Will we embrace the self-checkout, ordering kiosk, and more? Or, will the human connection be sufficient to draw us to the in-person alternatives while they exist? If we are not drawn to that interaction, with the impacts of product cost, how long will those human alternatives be retained. We are indeed on the brink of a new world that will be defined by our purchasing decisions. 

Whether Mr. Go and its relatives are our future will be for us to see. In the end, the best advice to young people is to find a path to skills. Entry level will never disappear, but what that word means may very well evolve. 

Candor, Omission, Persuasion

Most state bar rules focus attention on the concept of candor towards the tribunal. It is a concept included in the rules of ethics, which are studied extensively in preparation for law school graduation and the "ethics bar exam," a/k/a the Multistate Professional Responsibilities Examination. Unfortunately, in the trial practice, it is a subject too soon forgotten, or too easily overlooked or ignored. The duty of candor is in Rule 4-1.3 of the Rules Regulating The Florida Bar. 

While the main focus, or at least perception, of Rule 4-3.3 is telling the truth ("A lawyer shall not knowingly: make a false statement of fact or law to a tribunal"), there is an added requirement regarding correction. When a misstatement is made, similarly, a "lawyer shall not" "fail to correct a false statement of material fact or law previously made to the tribunal." When a mistake is made, own it, correct it, and move on.

It is critical that attorneys remember and understand that the duty of candor thus goes beyond the avoidance of misstatements. It is simple to remember one must not tell lies, but I find it infrequent that lawyers tell lies. The more difficult challenge is the simple misstatement, and more difficult still is the representation by omission.

Often, adjudicators receive pleas for relief, whether by motion or less appropriate avenues (letters, emails, phone calls, etc.). You see, parties are quick to seek relief or to resist someone else receiving it. That is the purpose of adjudicators, and the role of advocates is appropriately to seek her/his client's best interest. However, there seems to be a growing tendency in these seek and resist efforts to avoid legal research, grammar-checking, and thoroughness; seemingly, sometimes, at all costs.

It is the moving party's obligation to perform three critical functions: 

(1) Identify the relief sought. What does the party want, why is it entitled, how should the adjudicator effectuate that outcome? Be concise, be clear, be complete. (Three C’s). 

(2) Provide legal authority that supports the movant's plea for relief, or the respondent's resistance. Is there a statute, rule, or decision that supports the outcome you seek? If so, cite it (better still, provide a copy of it). If there are hundreds of supportive cases, keep them; cite them perhaps, but provide one.

(3) When no authority definitively supports your position, simply say so. There is no point in telling the judge that "all the case law supports this" or that "the case law on this is uncontradicted" if that is inaccurate. Either your opponent or the judge is likely to look at the law and discover the truth.

Remember, the last-ditch alternative to strong authority is generally the “public policy“ argument. Don’t expect judges to be oblivious to this fact. In the absence of authority, there’s always the chance your public policy argument will prevail on either side of the argument. However, the odds of prevailing decrease markedly if the judge must wade through multiple pages of irrelevant nonsense, diatribe, and hyperbole prior to your admission that no on-point authority exists. If it is not there, say so upfront. Own it. Then make your best argument.

An old proverb says dazzle them with brilliance, and if that fails, baffle them with something else (paraphrasing). While that is a catchy colloquialism, it does not ring true. By the time you have attempted bafflement for multiple pages, it is unlikely your credibility will sustain a public policy argument in the end. I have known many judges over the decades, and you might fool one periodically. However, the odds are against you in this regard because the vast majority are sharp, focused, and resourceful; they are going to catch any such attempt, and it will not work in your favor. 

Returning to the failure of so many to cite or provide authority in their plea for relief, note that the rule above also addresses the instance in which authority or precedential law might be left out of a trial presentation, or a motion. The rule says a "lawyer shall not" "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." How would a  lawyer know what the controlling authority on a question is without some research, at least in terms of checking the currency of what may be currently understood (with a Shepard's or similar check of the case law). 

My old friend Horace Middlemier* once told me, "You cannot violate that rule if you never do any research; that way you never know anything and cannot be accused of hiding it." That practitioner's rule of blissful, or even purposeful, ignorance does not seem to comport with the intent of the rule. However, additionally, some lawyers have recently told me that their clients do not pay for legal research anymore. They expect attorneys to simply know all of the law, and they allow research or updating (Shepard's or similar) only in specific instances and with express permission. 

It may be impractical to know all of the law and to cite it effectively in such a circumstance. If you are placing such constraints on your lawyer, know that you are tying one hand behind her/his back in the best of circumstances, and you are setting them up for an embarrassing omission, unintentional misstatement, and all the credibility damage that comes with it. Oh, and her/his credibility and effectiveness may well impact your case, cause, argument and outcome. Likely better to allow a little leeway on the research constraint and let your lawyer do a complete and competent job. 

Brevity might also be a challenge. All lawyers seemingly enjoy speaking. However, some lawyers tell me that they get negative client feedback when they invest an hour in producing a motion or memo and yet produce three pages. For such an investment, some perceive that a higher page count should result. Show this article to your clients. 45 minutes of careful and exhaustive research followed by 15 minutes of typing a concise and powerful two-page motion is far more persuasive than two minutes of research and 45 minutes of typing 15 pages of fill and bluster. Nonsensical meandering rarely persuades. Bigger, you see, is not always better. Sometimes bigger is merely bigger.

It is also important to remember that before filing a request for relief (motion, Rule 60Q6.115(1)) one should communicate with opposing parties or counsel. The epitome of professionalism in the practice of law is polite collegiality. There is nothing to even suggest that you must admire or befriend any lawyer against whom you practice. However, there is great value in a two-minute telephone conversation regarding a dispute. Crystallize your thoughts. Solicit your opponent's thoughts. Narrow the focus of your argument, and structure it succinctly. This avoids wasting the judge's time; trust me, she/he will appreciate it. 

Cordial relations with opposing counsel and parties are extremely powerful in other regards. I have presided over thousands of hearings and in excess of 700 trials. I have watched brilliant orators, expert tacticians, and fantastic authors. And yet, their strengths can be unraveled by nerves, temper, and lack of preparedness. I have wondered at some instances of under-preparedness periodically. I am told that some clients are unwilling to pay for preparation; and, I am told that some high-volume practice paradigms simply make such preparation difficult. That is a shame on the surface, and the more I think about it a distinct disservice to both client and case. 

Short-temper, raised voice, shuffled papers, sarcasm, and abruptness have no place in a trial. Those who consistently thrive in the practice of litigation avoid these demonstrations. They proceed with a cool aplomb that is wondrous to behold. Their consistency, persistence, and courtesy are inspiring and effective. They know that the witness will not cave in a la Perry Mason, so they make their point and save the argument for the end. Intimidating a witness might make your point and assuage your ego, but it is as likely it will merely engender sympathy elsewhere in the trial room. I once saw an employer come to the aid of the injured worker while watching its own counsel on cross-examination. That was both sympathetic and supported the E/C credibility. 

I would suggest that Mr. Middlemier's* proposed course described above is fanciful at best. The better course is to do the research, cite the law in support, and acknowledge/distinguish any such law that is against your position. Willful ignorance is no more professional or appropriate than simply misrepresenting the law. Thus, doing the research is both appropriate and consistent with professional practice within the Rules. When there is a misstatement, correct it. Quickly, efficiently, and honestly. It is required by the rule and is the right thing to do. 

* Horace Middlemier is a fictional character. Any resemblance or appearance of resemblance to any living person is strictly coincidental and unintended.

Credibility from Vulgarity?

I periodically get a question about "what does this have to do with comp?" The posts here are sometimes specific but sometimes general. I understand that there are those who struggle to see how individual's constitutional rights, government power, and the broad applications of law apply to workers' compensation. In a nutshell, all workers' compensation is about the law, particularly statutes. Statutes are exercises of government power, that is power delegated to government by the people. Finally, the constitutions that underlie and support the laws in this country supercede statutes, with constraints on powers and recognition of inherent individual rights. As a law professor once told me, "it is a seamless web."

A topic to which I return periodically is credibility. I have some natural curiosity about the topic and am called upon to make credibility determinations from time to time. While it is a natural part of the adjudicator's life, I find there are many questions from lawyers, experts, and others as to the process of determining credibility. Prior posts on this include The Chair of Truth (February 2018); Credibility - a Conversation (December 2019); Magic Words (February 2021); and Credibility Lessons (August 2021). I received good feedback on each of those. The Chair of Truth is still mentioned to me periodically, never in a good way.

Out of the blue, it occurred to me that words matter in the realm of credibility. That is, can someone express her/himself effectively? Many times, I have lectured that there is great credence to be gained in the ability to explain a conclusion. This is the old "show your work" saw that your elementary school teacher strove to convey. If you can tell someone how you got somewhere, you have a better shot at them believing in the result or outcome.

Beyond that, however, my recent revelation is that perhaps words matter. That is, the choice of words might matter. We all learn as small children that there are words that lack cultural acceptance. They are labeled as vulgar or worse, and polite society avoids them. They can shock, and perhaps in a very carefully deployed manner, they might even draw attention to a point, thus accentuating and encouraging belief or comprehension.

One of my favorite dialogues from cinema involves Archie Leach, a lawyer played by John Cleese, and Otto, played by Kevin Kline, in A Fish Called Wanda (MGM 1988). Otto is a pretender-intellectual who strives unsuccessfully to study Friedrich Nietzsche and more (in another excellent scene, Wanda Gershwitz, played by Jamie Curtis, eviscerates Otto's pseudo-intellect). In another poignant scene, Otto expresses himself insulting Archie. Archie responds "How very interesting. You're a true vulgarian, aren't you?" Otto replies with a third-grade playground retort and more vulgarity. He does not make points, persuade, or endear, but merely swears. It is funny and entertaining, but it is not persuasive. We are not laughing with Otto. 

For many years, there was an argument that those who swear or use vulgarities do so because they lack the ability to communicate without them. It was labeled the "poverty of vocabulary" or "POV" theory. The use of these words, according to Scientific American, leads us to "judge vulgarians quite harshly, rating them as lower on socio-intellectual status, less effective at their jobs and less friendly." Recent research may support that these prejudices are or are not valid. It is possible that one who relies on the proverbial "f-bomb" or worse may nonetheless "also be exceptionally eloquent and intelligent." That these folks do not need to be vulgar, but merely choose to is not particularly complimentary. 

In certain circles, we might hear that oft-relied upon "follow the science" refrain in this context. Some folks have striven to measure "verbal prowess" and the "verbal fluency" of people, testing both their vocabulary and recall as to words generally and vulgarities specifically. The Scientific American concludes that these studies support that those who look down upon the vulgarians have "been unfairly judging them for their linguistic abilities." They claim instead that "swearing, it seems, can be creative, smart, and even downright lyrical."

There is also the argument that "cursing is good for your health." NBC News reported in 2018 that "While we typically try to curb our 'dirty mouth' when in the presence of family or co-workers, swear words make up almost one percent of our daily vocabulary." It concludes that swearing helps with pain management, through an emotional reaction we have to using the words. They may also "improve your workout," release stress," and "make you appear more honest and authentic." Perhaps that means Otto can be accepted as honest, authentic, and yet unpersuasive and crass? In legal proceedings, which is more important? Is the potential for authenticity with a judge or jury worth the potential detriment?

Others contend that in children the use of such words may be related to her/his "response to something painful, upsetting or frustrating." They may be striving for a reaction, trying to "fit in socially," or "struggling to either understand or express their emotions." Whether the intent is to draw attention or to persuade, is it nonetheless possible that vulgarity does diminish persuasiveness? Some would say that, despite the science supporting so-called POV, the swearing merely makes one appear childish and immature. 

But, can it be persuasive? A London psychologist suggests that "Light swearing at the start or end of a persuasive speech can help influence an audience." This, he argues, shows "passion . . . and people have one more emotional reason to come around to your point of view." He cites studies that conclude there is some strength in altering audience's perception of the speaker's intensity. However, in the research, "swearing did not affect how the audience perceived the speaker’s credibility." Stealing from Thoreau (paraphrasing), perhaps "It is not enough to be intense or passionate; so are the ants. What are you intense and passionate about?”

The Atlantic says there are "professional benefits of using curse words." This sites the purported benefit of swearing for pain control, emotional information conveyance, and building solidarity regarding perceived frustrations (perhaps similar to the "fit in socially" mentioned above with children). Despite the various purported benefits, the author cautions that nevertheless, "if you prefer scaling the corporate ladder to making friends, you may want to avoid colorful language." It seems, perhaps, that being a vulgarian does not build confidence. One survey demonstrated that "participants said they would perceive a co-worker who swore in a formal meeting to be incompetent." Stated, otherwise, it may draw the attention, yet not the attention one would like. 

There are many suggestions regarding how you might react when children use vulgarities. Babycenter.com says you might suggest alternative words, avoid exhibiting amusement at the term(s), set limits, or invoke consequences. But, those efforts are not available to us when dealing with those who are not infants. And, it is unlikely that you will persuade an adult to forego colorful language. If that is a course elected by an adult, we are likely stuck with hearing it as much as she/he is stuck with the consequences of it ("passionate," "childish," and even perhaps "incompetent").

Perhaps for professionals, it is enough to know that there are many methods of persuasion. One studied by Cornell researchers is frankly fascinating. In a nutshell, they concluded "Successful arguers start early, stay calm, and go into detail." Calm, they say, "is more effective than swearing or using aggressive terms." There are more tips on that page, and an interesting overview on persuasion. Another one of note is to "Study the language used by your opponent to decide whether or not it's worth engaging in an argument." If you find yourself engaged with Otto, perhaps there is no convincing him of anything and a more pleasant path would be to ignore his vulgarian entreaty? We have all encountered vulgarians spewing forth on the street; have you ever engaged in conversation to pursue sharing knowledge or perspective? Or, do you just cross to the other side, ignore them, and move past as rapidly as possible?

Another interesting piece on credibility and the swear word is a thesis published by a Master's candidate at Wichita State University. This student contends that "Swearing and credibility are directly related." Some support that the use of such words is "provocative" and "a useful teaching technique to grab the attention." Some contend that swearing "makes a professor seem like 'more of a person,'” but others contend instead that there is research supporting that profanity may decrease credibility and perceptions of trustworthiness and competence. This paper, though lengthy, is an interesting read. Unfortunately, there are also some grammatical errors in the paper that are distracting (Misspelling "credibility" (sic) is not excusable in a thesis presentation).

I have spoken with judges about the issue of vulgarity. There is some inherent bias expressed by some that is intriguing. First, I have been told that whether vulgarity diminishes credibility "depends." Judges who find no offense at a particular word/phrase uttered by a laborer say they can more easily find offense if it is used by a professional. There is, one might say, a heightened burden of being able to express oneself as a professional. That this is prejudice and bias is conceded, but nonetheless real. Second, no judge has ever told me that a good swear word is effective for enhancing credibility or productive for attracting attention. It seems an unwise path for the professional, with probable detriments and no discernable benefits. 

 

So, where do we end up? Likely, much like beauty, vulgarity is in the eye of the beholder. There may be settings in which it is acceptable or perhaps even productive as an attention draw. However, there seems to be a great risk of diminished persuasion when vulgarities are employed, particularly by professionals or those who wish to persuade (advocates). Certainly, Otto made us laugh. However, it is likely that few were laughing with Otto, compared to those who were laughing at him. The absurdity of one who reads Nietzsche and drops frequent f-bombs and more is entertaining, but Otto's credibility is not enviable. In the end, there is unlikely any appropriate setting in professional dialogue for an "f-bomb," or any other vulgarity or swear word. If you seek to convince or persuade, these are unlikely the best choice of path. 

While the studies cited above may suggest a potential for drawing attention with one or two, the downsides are potentially significant for any speaker. Thus, when we speak, whether to utter obscenities and vulgarities is up to us, potentially attention-drawing for the attention seeker, and potentially detrimental to our credibility and thus success in convincing. If asked my opinion, I would urge restraint with such words, and when possible avoidance altogether. It does no one any good to be perceived as petulant, immature, or vulgar. 

Two Emails and Two Stories

This post is about remembrance, and perhaps celebrations. 

The end of September brought two messages to my inbox. I found each poignant, and somewhat disturbing. One was a retirement and the other more permanent.

Years ago, I traveled from Pensacola one week and heard cases in Miami, likely sometime in 2007 or 2008. I walked into that district office and presented my identification, explaining to the guard the point in purpose of my trip. He welcomed me effusively, and graciously. He then looked at me quite seriously and said “I’m gonna have to look in your bag."

That was the first time that I remember meeting Hugo. I had many opportunities thereafter to be in his presence. Hugo provided the primary security for the Miami district office for almost 20 years (his goodbye note says 19 years, 279 days to be exact). On each of my visits, he was welcoming and gracious, but consistently made every effort to search my computer bag. I’ll never be certain if he was serious about that or not. I got the persistent impression that he had a good nature, and some humor, but he meant business when it came to protecting us all. 

In his departure, he described his service there as an "honor and privilege," and described that group of coworkers as "family." Day in and day out, for twenty years, he provided security, cordiality, humor and more to that office and those it served. He was a foundational element of the Miami practice, knew everyone, and became part of the fabric of the practice. 

I am somewhat sad to announce his retirement. I say somewhat because I find myself also excited for him as he moves into the next chapter of his life. Certainly, when you reach that moment, there’s perhaps no greater reward than the ability to turn the page and begin anew. Despite that, I will miss him, As so many of you will. Hugo was a consistent presence and was ready with a smile. I am certain that both the OJCC and the Miami public will miss him. I wish him the very best in his retirement and we are all grateful for that 20 years.

On a much sadder note came news reminding me of the halcyon days of my early legal experience in Jacksonville. I’ve had a great many lawyers in Jacksonville, and thereafter across the state, influence me in so many ways. I have had innumerable mentors, they (likely you) continue to affect me so profoundly. I often take a fair amount of entertainment from the fact that none of you seem to realize how much I depend upon you, learn from you, benefit from your comments, admire your professionalism, and so often revel in your spirit. You really should appreciate yourselves more. 

In September, Douglass Myers passed from our number after almost 50 years of practice in the Jacksonville community. I do not ever recall him as a carefree person. He had challenges from my earliest recollections. His obituary noted that he had suffered "a long illness," which is consistent with my recall. I also do not recall him in private practice, but only as the workers' compensation attorney at the  Office of General Counsel. But, I am sure that I only came to know him later in his life. Mr. Myers was 77 when he passed. Certainly, by the time I met him, he was a seasoned practitioner of more than 20 years, and I was new to the law, the workers' compensation community, and the town. 

He was known and respected, by lawyers, mediators, and adjudicators. Mr. Myers seemed perpetually ready with a kind word. He commiserated with his peers in an easy and comfortable way. It was easy to speak with him and he was a ready ear. I admired his perseverance and aplomb. It seems lawyers tend to know the opposite side of their practice better than the lawyers on their own (defense lawyers work more with and therefore tend to know claimant's lawyers more, and vice-versa). Despite that, it seemed everyone knew Mr. Myers. 

I never knew of Mr. Myers' history, his education and path to being an attorney. Our conversations were about workers' compensation. Until reading his obituary, I was unaware of details of his service in the Air Force, and the dangerous tasks he undertook decades ago, a world away, in Viet Nam. How often do we fail to express our gratitude for the service and sacrifice of those who serve? In a broader context, how often do we take time in our busy days to simply tell someone that their presence has mattered to us?

What I was aware of was his involvement in the Jacksonville legal community, Bar, and later the E. Robert Williams Inn of Court. Mr. Myers was engaged in the workers' compensation community, dedicated, and professional. He was quick with a smile and a kind word. Through scholarship, hard work, and engaging personality, he was a successful advocate for his client. 

In 2011 the Inn awarded him the John J. Schickel Professionalism Award. That honor is a significant recognition from a community of peers. I was not there, but I can picture him demurring and deflecting. In my experiences with him, he was persistently a humble and gracious professional. I suspect that when he was told of that award, he likely mentioned others whom he thought deserved it more. He was persistently supportive of, praising, others. Mr. Myers, in my experience, was persistently and consummately, professional.

As we become long in the tooth, we may tend to view the world differently. Youth, vigor, enthusiasm, and more may sometimes refract, but as we age our perspectives seemingly become clearer. As I reminisce this morning, I am grateful to have known both Mr. Myers and Hugo. They were each positive members of the workers' compensation community, in different roles and geography. I could have said that to each of them, and found time to be more grateful for their presence in those busy days. I wish Hugo the best in his next chapter. And, I wish the best for Mr. Myers' grieving family, and many friends and colleagues.

Each of them contributed to a community that is workers' compensation. Each of them will be missed. I encourage reflection on that this morning. If you have a moment to share with someone that you appreciate their involvement in this community of ours, I encourage you to do so. So many that I know are lately reaching that retirement moment, and too many are passing on. Though it seems a banality, life is short. Tell someone today that their presence, kindness, intellect, humor, professionalism, or otherwise is noted, appreciated, and valued. Simply stated, you never know when your chances may expire to communicate such thoughts. 

A New Law on Riots

There is a lawsuit brewing in Florida regarding a new law passed last spring. This, like so much in our society seems to be dividing us. The law is a reaction, in part, to demonstrations in the summer of 2020. Those events illustrated that there are very different views or perspectives on our world. It would, perhaps, be beneficial if we could all be more empathetic of others around us. It is reality, however, that a great many of us are caught up in our day-to-day and really don’t spend large blocks of time striving to understand the struggles of our fellow travelers.

One may struggle to understand how busy a household can get with a couple of careers, a couple of kids, a couple of school schedules, a couple of extracurriculars, sprinkled with work projects, homework, sport practices, grass to mow, a house to clean, and I could go on but you get the picture. How often do we step back and view the “big picture” of society (whether that is our neighborhood, town, metropolitan area, nation, or world)?

I experienced a demonstration in Paradise in the summer of 2020. Here in paradise there is a railroad bridge that has likely stood since Don Tristan DeLuna built the first east-west railroad to the second Florida settlement in St. Augustine back in 1565 (OK, clearly that is an exaggeration, but now you know Paradise was first; before Roanoke in 1585, Jamestown in 1607, the Pilgrims in 1620). De Luna landed in Pensacola in 1559, but the group was decimated by a four-day hurricane soon thereafter. Yes, a "four-day hurricane" event.

This railroad trestle is painted persistently with the perspectives of anyone that chooses to express. The messages have at times been inspirational, humorous, and even confusing. People here in Paradise used to drive through the bridge periodically just to see what its latest paint job portrays. Not so much lately due to the construction on the new U.S. 98 bridge nearby. In 2020, someone put George Floyd on it (I think freehand, which speaks to the artist’s talent; I envy the skill to be able to convey emotion in such a format).

That railroad bridge, known here in Paradise as the “graffiti bridge,” became the situs of gatherings during that time. It had a convenient location before they started building this new bridge, see If You Were Half the Bridge I Am (2021)). There is parking at a nearby boat launch, and the traffic is manageable. For whatever reason, some portion of those attending one such demonstration event elected to move down the street to U.S. Highway 98 (which crosses that new bridge). And, there a small crowd got in the way of traffic on a road that which many, even in the absence of a demonstration, are afraid to drive on, more or less walk on. 

How and why remain in dispute, but the news reported that somehow one of the pedestrians ended up on the hood of a vehicle. There may be dispute as to whether the driver got in the pedestrian’s way or vise-versa, But, what is known is that the driver did not stop and proceeded across that bridge (affectionally referred to as the “three-mile bridge,” guess how long it is) with the pedestrian perched on the hood. There were allegations each way; there was mention of “stand your ground,” and in the end the hood-riding passenger was taken into custody. He alleged that he was entitled to the protection of Florida's "stand your ground" law. One report alleged that the driver "forced his way through the picket line," which perhaps was not on the pedestrian way but in the driving portion of the highway. Perhaps, the protestors obstructed a highway with their picket line?

Now, to be fair, I learned in high school that getting on the hood (or roof) of a moving car is not a great idea. I will never forget the time my old friend Horace Middlemier jokingly jumped on the roof of Kimmy Clark’s Cutlass’ T-top (disclaimer: Kimmy Clark is fictitious name, any similarity to any real person is purely coincidental, the T-top is, however, real). First, his weight bent the roof rendering reinstallation of the glass panels dependent upon a local body shop. 

But second, in a less-than-Olympic-quality dismount, Horace left the vehicle over the rear deck lid when Kimmy concluded that she’d had enough of his antics. Horace had spots on his legs and arms that looked like hamburger, and a bump on the head that some of us thought might oughta be looked at by a doctor. I digress, but the point is riding on the top of cars can both aggravate the driver and lead to injury. Some may struggle to see climbing onto a vehicle as standing your ground, but that is for the courts. 

The bill passed in Florida this spring is a broad approach to "combating public disorder," according to the bill. It provides definitions and prohibitions. There is currently a lawsuit underway by groups that allege it will have a chilling effect on demonstrations, that its language is not sufficiently specific (referred to by lawyers as "vague,"), and that some people might be penalized by mere presence in a place despite their personal lack of involvement in any specific act of mayhem or violence (referred to by lawyers as "overbroad").   

Various groups filed a lawsuit striving to block the implementation of this new law, naming as defendants the Governor, Attorney General, and three Florida county sheriffs. In August, the Tallahassee Democrat reported that a federal judge had declined to dismiss the suit, except that the Attorney General was dismissed as a party. The challengers allege that the definition of "riot" is too "vague and overbroad," that the law imbues law enforcement with too much discretion, and that First Amendment expression could be hindered or hampered. 

At what point do your rights end and those of others begin? In my classroom lectures, I ask students whether they have a right to use their property as they wish; most see an easy answer there. Then, I query, shouldn't it be their own decision if they wish to have Van Halen play at their birthday party (Jeff Spicoli, Fast Times at Ridgemont High, 1982)? I generally get good agreement with the concept, though this generation is not as into Van Halen as you might think. Then I asked how they would feel if instead, it was their neighbor with Van Halen playing in their back yard? Well, we continue, how about if it is 02:30 and you have to work tomorrow? 

You see, we all have rights in this country. Our founding fathers believed that these rights were "truths," and not theories. They believed that they were "self-evident" and obvious. Despite their honorable and principled Declaration, there is likewise no doubt that they had rather hypocritical views regarding the "all men" portions of this document, and we need not explain further the utter absence of "all women" from their sentiments. That said, recognizing that there are flaws in our foundation and history, the fact is that our rights (mine to quiet enjoyment and yours to Van Halen) conflict periodically. Our laws are persistently challenged by the need for a society that protects our rights, recognizing that we are all very different individuals with competing and sometimes conflicting rights. 

So, HB1 recognizes that demonstration can yield to more. Peaceful protest can yield to rioting, looting, destruction of property, and injury to persons. Each person has the right to be safe from injury, assault, and battery. Each property owner has the right to her/his property. This conflict between the right to protest and the rights of others is not new. In any society, the government will be tasked to address the balancing of various rights and responsibilities. 

In the Paradise example above, did the motorist have the right to operate his motor vehicle on a public roadway? Did the protestors have the right to stand in the street and impede the motorist? Does a protestor have the right to jump atop Kimmy Clark's Cutlass causing her discomfort or fear? Does the protestor have the right then to damage Kimmy's car? May Kimmy drive away with the protestor perched atop the car? If the protestor, having chosen a precarious and unsafe perch, falls to the pavement should Kimmy be responsible for the injuries or should that fall to the protestor who chose that perilous perch?

House Bill One (2021) provides an array of provisions striving to address these questions. It includes definitions for "crimes of affray, rioting, and inciting a riot." There are enhanced penalties for those who incite riot, or commit "assault or battery . . . in furtherance of a riot." There are penalties for those who elect to strike or touch (battery) a police officer in such a riot, or strive to intimidate or forcefully compel others. There are penalties for "defacing, damaging, destroying," or otherwise interfering with historic property, and for theft of property in the course of such a protest. 

The new law imposes new or increased "minimum sentence(s) for specified crimes committed in furtherance of a riot," and limits the ability for rapid bonding out following arrests for various crimes. This is not to say bonding out is precluded, but that it is delayed until there is a court hearing, which could require a day-long jail stay. In the midst of various news stories about decisions to "defund the police," this bill allows objection to such local budget changes for consideration at a state level. 

The law of sovereign immunity makes many government officials immune to civil lawsuits. However, this new law removes that protection for government officials when "tort claims aris(e) from a riot or unlawful assembly" and the local government has "breache(d) its statutory duty to allow law enforcement to respond appropriately to protect persons and property." And, for the demonstrator injured by jumping upon someone's automobile, this law "creates an affirmative defense" if the "plaintiff's injury or damage was sustained as a result of participating in a riot."

The trial judge has concluded that the new law violates the First Amendment and its protections of speech and assembly. That decision was made in granting an injunction in September 2021. The trial judge concluded that the law is vague and that this "vagueness permits those in power to weaponize its enforcement against any group." That is unlikely to be the last word, and as the decision comes from the Federal District Court, the next analysis will be by the 11th Circuit Court of Appeals. 

As the case moves forward, there may be a discussion of where protest ends and riot begins. There may also be a discussion of the rights of people to be secure in their own person and property. Can there be a balance between your right to Van Halen and your neighbor's right to a night's sleep?  

The (un)Masked Man?

In the Halcion days of my youth, there was an entertaining television distraction, the "re-run." While we enjoyed the new and modern on our three broadcast networks, there were also opportunities for reviewing older offerings, and among the best was The Lone Ranger. From its days as a radio show (early 19030s to 1950s) through the early age of television (late 1940s to 1950s), the vigilante cowboy would often depart with a "hi yo Silver," and as he faded from the screen some bit character would ask "who was that masked man, anyway?" The hook was for the viewer; we had superior knowledge of the masked man, his identity, and were thus, ourselves, intertwined into the show. 

Masks remained exceptional in America. Wearing one was seen as troublesome. As I noted early in the SARS-CoV-2 pandemic, there are even laws that preclude the wearing of masks. See Masks Illegal? Not Generally (April 2020). But, you will tell your grandchildren, that there was a time when masks were virtually unheard of in America, outside of medical facilities. In fact, when we encountered someone in a mask, we tended to give them a wide berth.

As an aside, I spoke in the summer of 2020 with an older person who suffers from medical fears. She has worn masks throughout flu season for several years due to various medical conditions. She enjoyed that people would perceive her mask and stay distant in the supermarket and other settings. She laments that with masks becoming ubiquitous, that distancing has been discontinued. The safety she perceived from semi-isolation in public places has evaporated as her "exceptional" mask use has faded into the commonplace in our COVID world. In a larger sense, masked or not, why not give us all a little personal space back?

There have been those who rushed to masking, and those who have not. The same has been true of the miracle vaccine, of which readers will likely know I am a big fan. See Vaccination Tribulation (February 2021); Vaccination Implications (February 2021); Its Simple Economics (March 2021); and The Futures' so Bright (February 2021). I am a big fan of vaccination, but mask use continues to present questions. 

We are currently in the midst of the evolution of the vaccination, with the President moving to mandate vaccine acceptance. Mandatory vaccination is not new in America, and that subject is addressed in another post. With the mandates, however, come objections. There are those who have both medical and philosophical objections to taking the vaccine. Those issues are beginning a path through the courts. 

I recently heard about a business that is supposedly separating everyone who is not vaccinated; one employee at least complained that there were no religious or other exceptions honored. Thus, the issue may be coming soon to someone you know. This will be a difficult legal issue for businesses. Should businesses mandate vaccines, masks, and other pandemic responses? In the courts, will it matter that there are or are not particular governmental regulations or orders that support or detract from such decisions?

Similarly, there have been many settings in which mask use has been mandated. Some have been excluded from businesses for refusal to wear a mask. Others have been arrested for such refusal at banks, stores, entertainment venues, and otherwise. Generally, it has been up to businesses to decide whether they will require masks, but a fair few elected leaders have ventured into mask mandates with varying reactions from applause to ridicule. 

Despite the airlines mandating masks reasonably uniformly throughout their pandemic efforts, the government saw some imperative to add its imprimatur. Early in 2021, the Transportation Security Administration imposed a mask mandate for all airline travel, according to the Washington Post. There have been many reports of poor passenger behavior over masks. Some fear violence over the topic. Some airlines have seen a connection between contentiousness and alcohol, electing to discontinue serving it in some instances. 

In June 2021, Business Insider reported "Man sues 7 airlines including JetBlue, Southwest, and Delta, which he accuses of discriminating against travelers who can't wear masks because of medical conditions." That is a lengthy headline and almost relieves one of the need to read the actual article. But, some detail helps. The Plaintiff claims that he his "anxiety condition means he can't wear a mask." And, after visiting his mother in Florida, he says he is "stranded" and unable to return home to Washington D.C.

He accuses the various airlines "of discriminating against travelers who can't wear masks because of medical conditions." This may be a similar issue to the one discussed above with vaccine mandates. Some may also see similarities in airline reaction to the comfort "cats, ferrets, spiders, and pigs" as noted by the Wall Street Journal in "Emotional Support Animals are Banned on Airplanes but Service Dogs can Still Fly Free." You just have not lived until someone's dog spreads out at your feet and leaves you without the tiny bit of legroom modern air travel sometimes provides.

These issues all run into the concept of public accommodations and various federal laws regarding the rights and responsibilities of people in those settings. Is employment really any different regarding exceptions?

So, this plaintiff is suing both the airlines and "government agencies, including the Centers for Disease Control & Prevention" for their mask mandates. These mandates are in place, according to one former small-town mayor "as a 'matter of respect' for flight crews and others." Curiously, the Transportation Safety Administration, and others, have not been quick to provide any science regarding the benefits of masks.

In fact, some airlines have banned certain masks, such as cloth, according to the Washington Post. What is the science behind that distinction? If cloth masks are not effective, then why does wearing one equal compliance in any setting at all? In other words, why is a fabric mask good enough for some states with mandates, but not for a particular airline? The Post article says that these airlines have concluded: “fabric masks are slightly less efficient at protecting people from infection than surgical masks.” 

One may wonder "how slightly?" How "slightly" is "slightly enough?" More on masks in The Science of Consensus and Masks Again (June 2021). Some will remember when the U.S. Surgeon General said not to wear masks. Others will remember when the Surgeon General published an August 2020 video to show people how to make their own mask, out of fabric if you can believe it. Is fabric effective? Are masks effective? Perhaps like the famous Tootsie Pop question, "The world may never know."

Back to this Plaintiff, he bought tickets for eight flights in his attempt to reach home in Washington (the article later clarifies he really wants to get to "the Rocky Mountains - or anywhere else"; essentially, he wants out of Florida. He asked the various airlines for "a mask waiver" based on the medical condition he alleges. He apparently met with no success. The Plaintiff alleges that the airlines' "no exception" mask posture "violate(s) the Air Carrier Access Act, which protects passengers with disabilities from discrimination."

Some will see a question, "Why not catch a train to D.C.? or rent a car?" However, in the world of disability accommodation that is our modern era, the question is not whether one can find viable alternatives when denied accommodation, but simply whether there was such a denial. That there are reasonably simple alternatives does not excuse discrimination. Does a pandemic excuse discrimination? So, in the coming months, he may get his day in court. The legal issues of discrimination, mask mandates, and perhaps even science will potentially be laid bare to a court. It will be curious to see how the story ends. 

Perhaps, as he departs the courthouse one day, someone will even utter those now infamous words: "Who was that (un)masked man?"

In the meantime, for the rest of us, maybe we could just give each other a little space, masked or not? And, while the rest of us wait for clearance for the third shot, why not reconsider getting your first? It is a small thing, but would likely be a benefit. 

Alzheimer and Driving

There are insurance companies that will potentially offer you a lower rate if you agree to their persistent if not constant, monitoring. According to Pew Research, there is no consensus as to the appropriateness of such monitoring. Because you would be electing such consciously, there is also the probability for the Hawthorne Effect bias to impact the validity of any data that is collected by such a study of your driving. 

The Hawthorne is simply that "people behave differently because they know they are being watched." Retailers and others have relied on the implications of this for years with faux video cameras, potentially one-way mirrors, and more. Thus, if you want to study driver behavior, there is a detriment or challenge in the subject knowing s/he is being studied. But, if you want someone to drive more carefully, there is perhaps a benefit in the driver believing they are being watched. 

The bottom line for auto insurers is the belief that drivers will be safer and more careful if they believe the device installed on their vehicle is both tracking and reporting their activity. With the volume of information available today, such a device can not only discern where you are and your speed, but it can also compare that to the posted speed limit, note your consistency (or lack thereof), and more. Thus, you will rationally be more conscious of speed and driving because Hawthorne is watching.

The potential for Hawthorne came to me recently in the research context, however, when perusing an article on Alzheimer's published by the British Broadcasting Corporation (BBC): "How your driving might reveal early signs of Alzheimer's." It describes an interesting intersection of technology, medicine, and our anticipations.

They hypothesize that we all see an alteration in our driving as we age. This reminded me of a recent conversation in which my friend Horace Middlemier described a ride with an 86-year-old neighbor. The description included slow driving in the left lane, long periods of turn signal flashing with no intention of a turn, and the passing by of various cars whose drivers were expressive in both auditory and hand signal communications. The BBC acknowledges that many people's "driving changes as they age," and that this is normal. However, it reports on a study that may suggest our driving could foretell potential for more serious issues such as Alzheimer's.

The experiment begins with a very small group (139) of drivers over 65 years of age in Missouri. They volunteered "to have their driving closely monitored for one year." Thus, they knew they were being watched (see Hawthorne, supra). About half of the volunteers had been diagnosed with "preclinical Alzheimer's disease," which is not necessarily the disease as much as a potential precursor or predictor. The drivers' habits were monitored by a group at Washington University in St. Louis as they went about the daily business of their lives.

The study concluded that "those with preclinical Alzheimer's" exhibited driving tendencies that the others in the group did not. This included diving slower, "making abrupt changes" more often, as well as "travel(ling) less at night, and" driving "fewer miles overall." The study also found pertinence in the variety of "visited . . .destinations" and the manner in which they kept to "slightly more confined routes." From this, perhaps we readily see some Hawthorne as to frequency, duration, or timing of trips? Perhaps this also implicates the slower speed? But, perhaps the “abrupt changes” might not be such a reaction?

From the collected data, the researchers believe they can "forecast someone's likelihood of having preclinical Alzheimer's" based on driving habits. From their calculations, they concluded this predictive modeling "to be 86% accurate." The size of the study raises caution, and the researchers concede that "larger, randomized studies are needed to show a definitive link between the detected driving behaviors and preclinical Alzheimer's disease." 

Randomized, perhaps to also study subjects not subject to Hawthorne’s? Is there any methodology in which the driving habits might be observed without the subject's knowledge? This is not, as yet, a definitive predictor. In drug trials, there is uncertainty introduced by some subjects getting a placebo. Might they study a larger group and at least tell them that everyone gets a device on their car, but not all of the devices work?

There is no mention in the article of Hawthorne. Those who had been diagnosed with "preclinical Alzheimer's disease" might have in fact altered their behavior based on the diagnosis alone, age alone, or a variety of other reasons. Might you, with such an Alzheimer’s warning or diagnosis, drive more slowly? Might you limit your driving, your nighttime driving, or stick to familiar routes? As to routes, don't we all tend to stick to our familiar routes? Might you become more tentative in some situations? Could it be that caution comes from knowledge and diagnosis as well as it might from the disease process itself?

There are those quoted in the story that think there is more study of this hypothesis needed. There is interest in longer studies. Some comments suggest that more focus on the ability to plan a trip from “A” to “B” and a comparison of alternate routing elected spontaneously thereafter (getting lost) might be of interest as well. Another notes that “there is always the possibility that errors could creep into this analysis.” Despite these challenges, in the end, it is perhaps good news that medicine might spot “preclinical” disease process. However, the study authors admit “there is always the possibility that errors could creep into this analysis.”

Of course, the bad news is that there is little that can be done about such a condition. The sources cited note that “there are currently relatively few drugs available to treat early Alzheimer's disease.” Thus, unlike a condition such as “pre-diabetes,” knowing of a preclinical manifestation might not bring treatment at this time. However, knowing is half the battle in some contexts, and a diagnosis may be significant in one's personal battle. The implications of such a study are intriguing and the potential for earlier diagnosis is perhaps worthwhile. 

Perhaps our government will one day mandate such monitoring of all cars, strictly for safety? Perhaps without such privacy invasion, some of us might knowingly and willingly consent to have such data collected about us through some simple application on our cell phones, such as maps, Waze, or similar? Perhaps, the ability for our movement, pace, and path are already present and merely waiting to be mined and analyzed?