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.

Hidden Costs

Too often, we think of business in terms of mathematics. Certainly, there’s an anticipation or expectation that numbers will add up, books will balance, and existence will be sustained. There is also a tendency in consumers to view prices in a strictly comparative perspective. They limit their examination to what one meal experience costs compared to another. This is a value-based analysis that is not wrong but may be overly simplified.

Each element of an experience engenders a certain degree of cost. Fixed overhead may include the rent or mortgage cost of the premises, taxes, and more. That is somewhat easy to predict. 

There are also variable costs, and variability can be dependent on volume. For example, the cost of food or beverages. As the volume of served patrons increases, so does the marginal cost (each meal plated costs something). Some in business school strive to convince students such costs are strictly variable (no meals plated means no marginal cost). 

However, there is an undeniably fixed element that is too often ignored. One cannot serve the marginal (additional) patron, a chicken parmigiana unless money has been expended in order to possess some inventory of chicken. That chicken is purchased with an eye towards serving, in which case it will become a marginal cost of that meal if served. However, if the chicken does not sell, it remains a fixed cost of doing business (inventory).

These financial relationships are largely subject to management, through careful ordering, inventory control, market predictability, and other tools. It is perhaps more easily controlled with beverages, due to the greater propensity for shelflife and extended use.  Nonetheless, in order to be in business, some volume of cost must be expended in anticipation.

My views on these management challenges dawned eons ago in college but were honed in the real world. There exists no singular absolute formulaic approach to the interrelationships. The best management will periodically be left with unsold inventory, or with disappointed customers, troubled by output shortages ("I’m sorry we’re sold out of that").

When a business makes a fixed-cost commitment, it must, then hope for a customer response that is sufficient to allow the business to meet that obligation, as well as the marginal expenses, and render some profit. Profit, for all of the negativity too often expressed, is the purpose of business. If there is no potential for profit, what is the motivation for the business to take the risk of investing in fixed or variable costs?

Some of these linear examples may certainly be mathematical. However, it is suggested that the overall success of any business enterprise is largely multi-variable calculus. There are interrelated, independent, and unfortunately, unpredictable variables involved. And unforeseen circumstances can frustrate even the best planners.

One of the most studied independent variables is the human element. Staffing any business is largely art instead of science. A particular server may be capable of unbelievable focus and volume. Others, perhaps not so much. I have managed dining room crews of which one server was barely capable of covering five tables, and yet another could easily please 10. 

I’ve had to contend with the jealousy and animosity of the five-table staff, and their inability to recognize personal limitations. “Why does she get 10 tables and I only get 5?” The inverse complication is as likely, “just because she can only handle five tables, why do you limit me to that?” Similar arguments are raised by others in the tip-compensation category (bartenders, valets, etc.). 

Would you hear the same complaints from hourly wage workers? Surprisingly, I have. I have had cooks explain to me that they prefer to be alone in their kitchen. I have witnessed a single cook handling a 100-table lunch rush with efficiency, efficacy, and aplomb. however, I have also witnessed three-person cook crews, who could not handle such a rush under any circumstances. Volume and human individuality each require management.

These thoughts came to me recently, as I read an article regarding a musician, who was scheduled to perform at a venue. He canceled because of his personal shock and dismay regarding the venue's pricing of the event ($90.00 to $200). The performer has a perception of the reasonable price for such an experience ($25) and canceled the commitment based on conclusions regarding the higher prices. The sentiment is admirable, and the theme is interesting.

This performer had agreed to appear for $120,000 in exchange for a one-hour performance. The outside observer might examine that mathematically and conclude that this performer is worth $120,000 per hour, $2,000 per minute, or $33 per second.  However, such a conclusion would, perhaps, fail to consider the other costs associated, including transportation to and from, crew, set-up expense, other performers (“the band“), taxes, licenses, and more. Just as a venue might have variable costs, so might a performer.

Upon publicity of the cancellation, the venue in this story voiced its perspective regarding costs. It explained its size limitation, 1,500 people. It explained some of its hidden costs. 1,500 people at $25.00 is only $37,500. If you sold each of them four drinks at $7.50 (assuming a 75% profit margin on each), then there is another $33,750. Not enough to pay the singer $120,000. If you sold each patron ten drinks at $7.50, that would yield $84,375, and the cost of the singer would be covered ($37,500 + $84,375 = $121,875).  There is food sale revenue also, it must be considered, but the margins are thinner on food. 

Is it rational for a venue to host an event at a loss, or to expect such consumption? What about the ticket commission? What about the bookkeeping? What are the odds you can get each patron to pay for ten drinks, or that you can get them each to buy 5 at $15.00 each? And, if you could, at the end of the shift you simply covered your singer cost, but what of the other fixed and variable costs? What of the venue, the security, etc."

No one is "right" or "wrong" in this discussion. The bottom line is that this venue cannot stomach a $25.00 ticket price and this singer cannot abide a $200 price. They are at impasse. However, it is important the relationship and information reveals the challenge of “hidden cost,“ which is a real interest of workers' compensation, though too rarely discussed. 

Workers' compensation at its best is a hidden cost, included in service or product pricing of many market participants. I say many rather than all because there are certainly legal methodologies for avoiding the inclusion of this cost. For example, products and materials might be procured from off-shore sources (while the Big Three shut down this week, the foreign cars kept flowing). Those are produced at a likely lower cost, and without the hidden cost of Worker’s Compensation. Workers in foreign countries often do not enjoy this benefit or other protections such as FMLA, ADA, Unemployment, and more. Buying a foreign-produced product or service perhaps diminishes cost.

Similarly, to reach the market, a manufacturer or importer might use a large transportation company, with the benefits of size, diversity, and depth on the bench. Alternatively, one might select an independent contractor, an owner and operator, for the same function. In doing so, one might absorb the cost of Worker’s Compensation, or avoid it.

This discussion is largely of macro and microeconomics. Unfortunately, that subject is not common in America’s high schools. Furthermore, the average college graduate will likely escape with a degree and have largely avoided any study of the implications of the laws of economics. Despite the resulting lack of foundation, everyone engaged in business, must confront the challenges associated with the fundamentals of economics, the difficult choices, the probable shortcomings, and the potential for misunderstanding.

In the end, business is difficult. This absolutism remains. Whether one is the business, owner, manager, labor, or supplier. The complexity is difficult for those who study economics. Unfortunately, it is harder still on those who have no time for such study as they scramble about striving to earn a living in the complex calculus of economic exchange.

The implications of these thoughts are important. The existence of hidden costs can impact the overall price and profit of any supplier of goods or services. The seller and the consumer may be very sophisticated and yet not share identical visions of what value each conveys in a particular exchange. Each may have wants, desires, and perspectives that are not apparent to, or appreciated by, the other. 

Either might be labeled as "greedy," "generous," "impractical," or "brilliant." Each is striving to maximize earnings and that may be from minimization of cost or maximization of income. Each has proprietary knowledge, hidden costs, and personal challenges. Each is managing a process that the other may not understand. 

In the end, it is often difficult to calculate the actual value of any exchange, even for those who are intimately involved in them. 

The Fourth Wave

The United States continues to be the target of an illogical madness. The British Broadcasting Corporation (BBC) recently explained How the fentanyl crisis' fourth wave has hit every corner of the US. I remember in the 1990s when I first heard of Fentanyl and the various doctors who expressed their eager and adoring attitudes toward it. There were many orthopedic patients suffering intractable pain and we were all led by the physicians into the opioid expansion.

I have been less than a fan of opioids as the trend has turned toward death and destruction. In Florida Workers' Comp: Florida's 2018 Session - Opioids (March 2018), I reviewed various prior posts that address opioids. In the end, these drugs are killing thousands of people each year. Much of it started in a prescription world and evolved into illicit use. Today, perhaps more of it begins with illicit use. There is a certain population that is willing to use these substances despite the associated risks.

The Centers for Disease Control (CDC) says that Heroin overdose is on the decline. The current threat is from synthetic opioids, including fentanyl. There is an apparently inexhaustible supply of this substance and a ready population of consumers ready and willing to expose themselves to it. That said, it is practical to believe some are being exposed unintentionally. That is, they seek illicit drugs voluntarily but do not intend to include this one in particular.

Time and again in Hollywood productions, we see the all too familiar police interview. Hollywood loves to make police and lawyer movies and shows. In that context, there is a persistent theme of motive for this crime or that. Often, in the context of motive, there is "the victim owed you a lot of money." The savvy suspect so often reminds the intrepid investigators, "why would I kill someone that owes me money, dead men never pay." That is an interesting line of thought. 

Do dead drug addicts pay? 

Why are these powerful opioids being pushed? They are killing a great many people. It seems illogical to kill your customers. However, it is likely I am ignorant of the intricacies of the drug trade. 

The BBC explains that the "fourth wave" involves the integration of Fentanyl into other drugs. Victims and advocates are convinced that users are surreptitiously being exposed to this drug. They intend to use illicit drugs, voluntarily use illicit drugs, but are not specifically seeking this killer.  The reader is urged to sympathize with these users and suggestion that the government could do more to facilitate their illegal drug use in some safer environment. 

Some insist that there is a lack of awareness of the threat of Fentanyl. Grassroots organizations are featured in the article. Their agents are visiting the public in broad efforts directed at consciousness-raising. Some complain that awareness campaigns have used the wrong models for their billboards and other efforts. 

The evidence cited is compelling. The volume of overdose deaths unrelated to Fentanyl is decreasing (as a percentage of overall overdose deaths). The increases are in Fentanyl used alone and Fentanyl with stimulants. Some contend this is intended, with the stimulant allowing an extended experience of the high. Others seem to suggest that the Fentanyl is being surreptitiously included in illicit stimulants as an inexpensive extender or filler. 

Regardless, there is evidence supporting that the Fentanyl is highly addictive. The people who are choosing to be exposed to this, or who are being inadvertently exposed through their intent to consume other street drugs, are becoming addicted to this. It is likely perhaps that they then seek it out intentionally in order to satisfy the demands of that addiction. 

According to the National Institute on Drug Addiction, overdose deaths exceeded 106,000 in 2021. I can remember when the rate was half that. That was in 2014. In less than a decade, overdose deaths have essentially doubled. Will they double again in the next ten years? 

Will people suddenly heed the threat and the warnings and quit using drugs? Doubtful. Will the continued push for ever-increasing access to pot lead to less drug use and overdose? Doubtful. Is there an answer that affords some promise of fewer deaths? The situation is puzzling from various perspectives. But more so perhaps in the riddle. Why is there anyone in the distribution chain who is not concerned about the high death rate among consumers? 

It seems that the suppliers are all incentivized to keep customers alive and using. And yet, the death rates continue to grow. The riddle, it seems, is not in the fact that there are users and addicts, but in the ease of recruiting an ever-growing population of new consumers. Who needs the old consumers when there are new ones so ready? How can there be so many new ones, despite the overwhelming prevalence of news coverage and public awareness?

It is indeed difficult to understand. It is a riddle whose solution escapes our government and an effect that seems destined to grow. The CDC says the leading causes of death are

• Heart disease: 695,547
• Cancer: 605,213
• COVID-19: 416,893
• Accidents (unintentional injuries): 224,935
• Stroke (cerebrovascular diseases): 162,890
• Chronic lower respiratory diseases: 142,342
• Alzheimer’s disease: 119,399
• Diabetes: 103,294

Perhaps when drug overdose reaches comparable figures to stroke it will be enough? If the rates of overdose double in the next ten years, it will equal or exceed accidents. Perhaps then it will be enough? or will it require another ten years and a doubling to equally COVID to get the word out? What distinguishes drug overdose from the causes listed here? Overdose is perhaps the easiest to avoid completely. 

Being an Effective Advocate

I recently received a phone call, unsolicited, from an advocate, seeking assistance; we'll call him "Jim," with sincere apologies to everyone out there actually named Jim. Jim's dispute likely had nothing to do with Worker’s Compensation, and at least purportedly centered on a labor dispute.

Jim's issue was thousands of miles from me, and yet Jim seemingly chose me (I later learned that was false and Jim was contacting whomever could be reached). Jim's approach was filled with invective and venom, the tone was acrimonious and accusatory, and the effect was utterly offputting (ineffective).

The call made me think about the least effective methodologies for seeking assistance. It reminded me of the potential for ignorance and confusion among those who would be advocates. In litigation, advocacy is the goal and the role. What is the advocate's role? If you are offending and abrasive, can you be persuasive? Maybe.

However, advocates would do well to remember to maintain focus on their goal. Facts are helpful, the law is helpful, and circumstances can even be helpful. Name-calling and invective, not so much. Anger? Almost never helpful.

Jim started from a foundation of ignorance. My name had been found on some list or document, and assumptions had been made. Bad ones. Jim thought I possessed some superpower or influence. That was a mistake at best. Jim was prepossessed with recruiting me to be an advocate for some cause. I am not an advocate, and I do not take up such causes. In fact, the Code of Judicial Conduct says I cannot advocate for your cause. I cannot "lend the prestige of judicial office to advance the private interests of the judge or others."

Jim did not understand that. Worse, somewhere along the line, Jim lost the capability to listen. Rather than process what was said, Jim chose to rely upon persistence, insults, and bullying. To be fair, those work in some settings. But not so much in others.

Jim chose, in seeking my support, to engage in name-calling, accusation, and emotion. Those accusations undoubtedly held some great value for Jim. However, Jim was seemingly incapable of comprehending that anyone might harbor a different perspective on facts or circumstances. Jim's worldview was stunted and constrained, and it did not further his interests.

Hint for the advocate, righteous indignation, insults, and invective are unlikely to facilitate productive communication. Admittedly, there may be a place for each in a particular conversation. Notably, it is unlikely that that place is at the beginning.

Jim wanted me to adopt his worldview, unsolicited, and unproven. Jim encouraged me to join his cause, take his side, and advocate on his behalf. He was confident that my role as a judge would lend credence to my advocacy on his behalf. He was as confident in his demeanor as he was inappropriate in his requests and language.

Jim was eager for advocacy. But, in retrospect, I wonder if he would have appreciated or sought my involvement in opposition to his position, goal, and outcome? I suspect not. It is likely that Jim would have been apoplectic and worse if some judge had taken the opposite side in his dispute. I did not raise that hypothetical with Jim, as convincing as it might have been with a rational person. I did not raise it, because Jim was not rational, reasonable, or even listening.

Therein lies the fallacy of Jim's call. His emotionally charged and illogical approach was unlikely to ever move his cause with any rational listener. His unwillingness to listen was going to prevent Jim from ever gleaning knowledge or better understanding. His approach was insulting, bullying, and ineffective.

I am glad that this call was an anomaly in my life. I am sorry for the litany of people who also had to endure contact with this fussy, illogical, and emotional Jim. In his approach and immaturity, however, lie lessons for the advocate.

First, be calm and collected when making an argument. Emotional, insulting, threatening tone, demeanor, or words will not be likely to move your issue.

Second, listen. That is not so hard. Listen. Someone might tell you something that could aid your comprehension. Someone might say something you can use.

Third, be careful with repetition. If you have a powerful fact, then there is perhaps power in repetition. If you have an accusation that lacks specificity or fact, repeating it incessantly will not be as likely to persuade.

Fourth, bring data. The litigation system is about disputes. To persuade and prevail, advocates must bring proof. This will rarely be your recitation of what someone told someone that they heard from someone. If triple hearsay is all you have, use it. But be wary that triple hearsay is not likely to get you home.

Fifth, be respectful. Always. The best lawyers I have ever seen responded to resistance, anger, or confrontation with calm. One I recall was so controlled that he persistently reacted with a softer voice, a slower cadence, and increased respect. I watched him eviscerate witnesses with that approach. They never seemed to realize how he had charmed them and used them. That lawyer won frequently. Not through anger and invective, but the opposite.

What a waste of time. Jim wasted my time and his own. He expended great emotion, slung allegations (irrelevancies), and repeated suggestions and innuendo. And he accomplished nothing. Perhaps he felt better; he may have expended his anger. Hopefully, his frustration with me softened his approach and impact on his next victim.

Advocacy has been referred to as an art. Those who would make a living from their art must practice it, hone it, and master it. That can be through reason and study, or through the difficult pathway of many mistakes, failures, and hard lessons. As you move to master your art, you choose your path. Choose wisely.

Go make all the mistakes yourself. Or, learn from Jim's mistakes and save yourself some heartache.

More Meet and Greet

I envy those people who can walk into a room and suddenly know everyone there. I have never been one of those people but instead a shrinking violet. Mingling and small talk have always been a challenge. You might think that the new world of virtual interaction would appeal to me as much as it does to the young of the twenty-first century (I do use my phone as much as they use theirs). But, I view virtual as a good fallback, not a primary option. It is better than nothing, but lots of things are.

That does not make fallbacks our choice (think unsweet tea, still tea but just not the same). Go up north sometime and try ordering unsweet. They look at you like you are nuts (they only have unsweet, to them that is "tea" and they cannot fathom your confusion).

There are lots of opportunities in this world for interaction, but too many of them lately are virtual. There is an analogy to human relations. In his famous comic strip, Watterson portrays a conversation of adults surrounding Calvin and Hobbes. For the uninitiated, Hobbes is a stuffed tiger unto which Calvin projects personality and humor. One of the adults questions “Didn’t you ever have an imaginary friend?“ The other adult assures “Sometimes I think all my friends have been imaginary." Ouch.

That is reminiscent of the sentiments people have expressed about Facebook, something to the point of "if you have 150,000 Facebook friends, that is the equivalent of no friends."

Let's get back together!

Let's get in the same room (or hallway as we did at the WCI in August). The Workers' Compensation Section of The Florida Bar is pushing us to get back in person. This is good for us. This is even better for the young lawyers who are not reminiscing about the old days of social interaction. We need to meet them, mentor them, and pass this community on to them.

In-person is different. There is an efficiency, and efficacy, that comes from being in the same room. People who may be too shy to jump in in a virtual setting, reticent, because of the absence of social cues, may very well be willing to jump in when in person. They may be willing to linger, able to catch your eye, give a slight head of the nod, or other subtlety; they might initiate a conversation that they simply are not comfortable with in the virtual world.

No offense, I just rarely gain traction or knowledge from meetings generally. That said, despite my fail shyness, fatal, I do enjoy a good conversation. I really enjoy a good conversation about something I understand (a very short menu), but enjoy conversations about a vast array of topics. I enjoy human interaction. Frankly, the one thing about my job that I actually love is the opportunity to listen to people tell me their perceptions, constraints, challenges, solutions, and suggestions.

This is been a long-winded path to a simple truth. The chairs of the Worker’s Compensation section of the Florida bar made it a mission over the last 10 months to encourage this community to come together in a more interpersonal manner. It started with a roundtable luncheon in Orlando in December 2022 and proceeded to similar events in Jacksonville, Fort Myers, and Tampa. All the while, we admitted that the great east coast was being temporarily and generally deferred. That is over!

On October 4, 2023, at 3:00 p.m., Mr. Longo, myself, various judges, and others will be present at the Fort Lauderdale district office for a meet and greet. This will be an opportunity to share company, ask questions, collect information, and celebrate community.

On October 26, 2023, at 3:00 p.m. we will be at the Tallahassee district office doing the same thing.

I am so glad to see us getting into these other communities. Let's talk, let's commiserate, let's hear from you! There is no cost, no speeches, no homework. Come and gather with us and tune up your workers' compensation community connections. I will be the shy guy in the corner without a nametag.

Superlative of Note

There are a great many superlatives. We each likely became aware of them in those terms back in high school. The ballotting was intense for such descriptions as "most likely to succeed" and "class clown" or "cutest couple." The yearbooks of yesteryear are littered with those accolades. I remember a comedian once claiming to have been voted "most likely to." That is funny. In reality, it is likely many of us were that undetermined and unpredicted in those years. 

The news recently brought us a troubling superlative "most depressed." There has been a focus on the challenges of mental health. I have touched on mental health in The Latest AMA Guides and Psychiatric Impairment (September 2014), The United States of Xanax (July 2017), Risks for Attorneys (June 2019), Here We Go Again (February 2019), and Mental Health (September 2023). It is fair to say that emotional challenges are present in workers' compensation. Some would say they are becoming more forefront. 

But, US News reported that West Virginia has the "most depressed" county in America. The coverage makes clear that depression is widespread in this country. And, there are indications that it is getting more prevalent generally. But, the thoughts as regards Logan County, West Virginia are both intriguing and troubling. 

There is discussion in that article of the weather and references to the volume of sunshine that residents experience. There are mentions of the local labor market and the challenges caused by those who destroyed the coal mining industry. Yes, with each cause celeb, there will be victors and vanquished. The economics, lack of jobs, and perhaps even isolation at least bear mention. The overall health is described in terms of the persistence and prevalence of chronic illnesses there such as diabetes and obesity. Yes, they label obesity as a disease. See Disease or Choice (March 2023). 

This country is going to have to get over the failures of models past. See The BMI Conundrum (August 2022). There is room to consider that our population includes many body styles, shapes, and forms. I myself have experienced body issues. That is real, and Madison Avenue and others have rammed that down our collective gullet for many years. See I Know Victoria's Secret (Jax, 2022). That singer provides a stinging rebuke. Know this (whoever and wherever you are), You are not alone in body issues. 

That said, of the diseases (if you buy that label) that afflict us, this fat issue is likely the easiest to attack. Get up, get out, and walk today. Do 100 steps, and 101 tomorrow. If you walk one step further each day, by the end of the month you will be out of your neighborhood. By the end of next year, you could literally be half the person you used to be. And, every walker I know brags about the peace they experience getting out and walking daily. It is renewing and calming. 

But to the depression, the numbers are staggering. "An estimated 32% of adults in Logan County, West Virginia, have been diagnosed with depression." There are vast numbers of people who have symptoms or complaints, and yet they are not eager to obtain care. There are stigmas attached, and there is resistance. Many believe they can make it back to sufficiency and balance unassisted. That reticence is troubling. A population of people who will not seek any help. Know this, whoever and wherever you are, there are many who suffer in silence. You are not alone.

Those who will accept care are nonetheless disinclined from therapy with a psychiatrist. That may be in part due to the limited population of psychiatrists available. The article is clear that there are few providers in the therapy or counseling realms in that area. They celebrate some recent expansion of capacity but lament that the community has been slow on the uptake so far. 

The corollary is as troubling. Having gotten over the impediment of declining care, many seem to be interested instead in alternative care. They want a pill. They want Mama's Little Helper (Rolling Stones, Decca, 1966). Let us all just take a pill and the world will be right. Don't get me wrong, I am a big fan of following doctor's orders. I have no qualms with the pharmacy business. 

But, in a similar vein to all the masses who think that drugs are a magic bullet for weight loss, there are those who think a pill is a magic bullet for mental health challenges. But, as the article mentions, there are impacts on us from weather, activity level, and more. Is it possible that getting out in the sunshine for a walk might have an ancillary benefit for those with depression? Is it possible that diet, surroundings, and personal circumstances might matter to mental health? Could someone around you benefit merely from the opportunity to be heard, that chance to vent?

Yes, I know, it is hard. It is hard to get off the couch. It is hard to be seen walking down the street. I know. I have no form (I do run more smoothly than Phoebe Buffay, but not by much). Getting up and getting out is an everyday challenge. The most avid dread it, resist it, but everyone likes finishing that walk or run. There is accomplishment, endorphins, and more. Starting is hard, but finishing is great. 

How did this country get to such a feeling of depression? Where is this weight of circumstance from? Why are so many feeling emotional symptoms and yet so resistant to seeking any care? Who convinced us that the answer to every problem lies in some chemical habit? There are so many questions and unfortunately few competent attempts at answers. Mental health is a crisis of today. It is manifesting uniquely and is insidious. What are you doing to impact it?

If you are struggling with challenges and need help, dial 988. Remember September is Awareness Month (September 2022). If you are not, look around you and see if there are people who might benefit from a kind word, a little interaction, or a quick 15-minute walk on a coffee break. If you know someone who may need more, why not take a moment to speak with them about their feelings and the raft of resources that do exist, the treatment options that surround us?

Travelling with the Thoughtless

It is no secret I get around. I travel far more often than I would like, and that is an adventure when you live in Paradise. We have an airport here, but flight frequency and dependability can be challenges. It turns out when you travel there are a myriad of potential hiccups out there, and if you are lucky none of them will find you. Or, perhaps all of them will find you.

The challenges of air travel have been mentioned here before. See Flying, Disappointment, and Lawsuit (December 2022); Manspreading (November 2022) and The FAA and Seats (August 2022). Most recently, there was focus on pilots and their mental health in Mental Health (September 2023). 

I recently flew out for a couple of days on what can only be described as challenging. To get out of this time zone (Paradise is not on Eastern time; it is 1957 here) usually involves getting to the airport around 04:00. There is no predicting the security efforts by the fine folks at TSA. Some days the line moves like a babbling brook and other days it moves like it is 1957. I was lucky enough (not at all) on this trip to somehow set off their scanning machine. 

That made for a pleasant and unexpected delay in the process (sarcasm). Am I the only one that has been groped and prodded by the TSA? It is particularly humorous when they strive to explain their motivation to you and seek permission to grope you. They and you know you are not getting on that plane until they do. Their polite requests are disingenuous and perfunctory. 

I made it to my seat on the first flight. I boarded in the "rest of you" group after all of the various metals, precious stones, and other superlatives. I found a man sitting in my seat. I indicated it was my assigned seat, and he explained "I was hoping the flight would not be full." No worries, he moved to the middle seat. Unfortunately, he nonetheless shared my seat all the way to Atlanta. I felt more sorry for the armrest between us, which groaned and complained vociferously. 

Atlanta is a wonderful experience. I always walk the tunnel from one concourse to the next. I remember when the stroll was not as long. These days, I feel like I walk out of Clayton County and into the next. The authorities there have kept it interesting though. One tunnel has various recordings blaring loudly enough to drown out my earphones, another is dark and dismal in some rainforest tribute, and a third has sculptures scattered throughout to congest the traffic path. All are well-thought-out weapons in the war against serenity and efficiency. 

I boarded for my next full flight. The last person to board was elderly and on a cell phone. After she passed me, I overheard her conversation: "There is no seat for me," "I am there, and there is no seat," "No, really the seats are all full." A flight attendant passed me toward the rear, then another. I heard one: "no, lap child means the child must sit on your lap," "No, you bought one seat." In a moment the flight attendant passed me moving forward with a huge car seat hoisted above his head. Whoever had poached that seat did so on purpose. 

The trip back to Paradise was seemingly better. For once, West Palm deferred its seeming daily afternoon thunderstorm and I took off on time for an uneventful return to Atlanta. I had a whole row to myself, but the seats did not recline. Have you noticed the feuding about reclining seats? The lack of recline was well worth the bonus of having the whole row to myself. 

The airlines each seem to accommodate our military (thank you for your service veterans). In Atlanta, that repeated and a large group of young, muscular, and short-haired folks boarded early (after the precious metals). Paradise has many military schools and training programs, so seeing these people in transit is never a surprise. As I later sat awaiting the completion of boarding, an older lady sat on the aisle in the row just in front of me. A moment later, an older gentleman followed and was focused on the aisle seat across from her. The two were obviously together and each apparently liked the aisle. Nice planning.

Unfortunately, the gentleman's seat was already occupied by one of the strapping young military men. As the older man explained that was his seat, the young men in that row (3) argued with him. As he fished out his passport and boarding pass, I noticed his cap read "USMC." Another thing we do not lack in Paradise is military retirees (thank you also for your service). I watched as they debated, and finally as a flight attendant intervened. 

The young man in the window seat interjected and explained that the three of them were on the same "team," and that they had been instructed to obey the "buddy system" when traveling. Therefore, he explained, they did not care about what the boarding passes said, they were going to sit together. A patient flight attendant explained that they were not either. She had to coerce and force the mistaken young man into arising and moving to his own assigned seat. As the older gentleman sat down, I noticed the back of that USMC hat read "veteran." Empathy? Respect?

I have my doubts that young, strapping, agile people need to be joined at the hip on an airplane. Perhaps they misunderstood the "Buddy system" to mean more than sticking together in busy places like airports and making sure everyone got on the plane. But I was struck by something more. 

The experiences above come down in each instance to lack of consideration. The passenger sharing my seat could have purchased the two he required for his body. The passenger with the car seat could have purchased a seat for that child to occupy. The young passenger with the attitude could have sought a seat change, and absent that could have sat where assigned and saved us all his embarrassment and the delay it caused. 

I am all about spreading out when you can. Make no mistake, I love to find the seat next to me unoccupied. I find myself hoping for it, and dreaming of the good old days when planes were not so packed. But, alas, it is rare anymore. That all said, we have no specific right to spread out. When a passenger acts as described, it is an affront to the rest of the passengers. We were all delayed by the decisions of the car-seat and soldier groups. 

Imagine a flight attendant on the PA announcing "Ladies and gentlemen you must sit in the seat we have assigned, it is printed on your boarding pass." That is perhaps unimaginable, but after the incident described above, the set-upon flight attendant indeed made it. 

Consideration and commiseration have been threatened in our society for years. I am reaching the point that I believe they are becoming extinct; I witnessed young enlistees arguing with a Marine Corps veteran about why he should not be able to sit in his assigned seat (for which he paid extra) across the aisle from his traveling companion. How can such a trainee not empathize with the veteran who was in his shoes not so long ago? They seem to neither recognize nor care about the challenges of others, their rights, and society as a collective experience.

Inconsiderate? Absolutely. 

Impolite? Yes. 

Worse? 

As time passes, I am perceiving such behavior more. Has it been so prevalent and I merely missed it? Or are people becoming less considerate, less polite, and more confrontational (no one cares that you want that seat Mr. Participation Trophy, go to your assigned seat). 

It is troublesome to travel. It is exhausting. And those who make it harder through their self-absorbed behavior merely make it worse. My thanks again to the USMC veteran for his service, and on behalf of an embarrassed and disappointed populace, apologies for your mistreatment by the rude and inconsiderate. 

Mental Health

In August, the Washington Post (WaPo) broke a story that could be viewed from various perspectives. Some might say it is about misrepresentation, or perhaps mental health, or disability, among others. The headline was eye-catching:

5,000 pilots suspected of hiding major health issues. Most are still flying.

If you ever fly anywhere, that headline might draw your attention. The FAA is alleging that these pilots may have "falsified their medical records to conceal that they were receiving benefits" from the Veteran's Administration; "Benefits for mental disorders or other serious conditions that could make them unfit to fly."

The FAA requires pilots to have an examination every six months to five years depending on the type of flying, age, and other variables. That is reasonably uncommon. It is likely there are other professions that have similar requirements, but seemingly not the majority of occupations. When is the last time your employer sent you for an examination? Maybe periodic examinations would be a good idea for more of us?

Mental health may be very important in a variety of occupations. In piloting, there have been reports of crashes involving students and pilots with alleged emotional challenges. There have been studies in response. A surprising 4.1% of pilot respondents in one survey "reported having suicidal thoughts within the past two weeks," and there were elevated volumes of respondents meeting the "depression threshold."

This post could be about pilots with emotional conditions.

The WaPo story recounts that some active pilots may be "receiving benefits for mental health disorders." Those under scrutiny are "veterans" who are "collecting benefits for disabilities." The investigation was not so inspired. The FAA merely cross-referenced its database with the Veterans Affairs database. The data being studied has perhaps been accessible for years and merely ignored or overlooked. Why don't government databases talk to each other?

The FAA is looking into whether pilots "might have submitted incorrect or false information as part of their medical applications.” The good news is that "about half" of that eye-catching 5,000 has been cleared. The bad news is that 60 have been "ordered" to "cease flying on an emergency basis" while the investigation continues. These are said to potentially present "a clear danger to aviation safety.” While 60 may not seem like much, perhaps disaster could arise from a single troubled pilot?

How can there be any in this group, what with the rigor of periodic medical examinations? The story recounts that such exams "often are cursory," and largely dependent "on aviators to self-report conditions that can otherwise be difficult to detect." In other words, the examinations have been or become lackluster perhaps, formalities, a "box" to check. I have had a few FAA physicals, and cannot say I found them rigorous in any manner. 

The WaPo concludes there are allegations that "Many veterans minimize their ailments to the FAA so they can keep flying but exaggerate them to VA to maximize their disability payments." Some medical examiners are quoted as describing the "maximizing" to the VA as "almost stolen valor.” This is a serious allegation of misrepresentation. 

Thus, there are potentials for FAA action regarding licensure. And there are potentials for VA action regarding the obtention of benefits.

This post could be about misrepresentation.

This post could be about "stolen valor."

The medical conditions that are disqualifying for pilots are listed in the story and include various physical conditions. I had a relative who reportedly managed to serve in World War II by having a coworker provide him with urine samples to prevent the discovery of a diabetic condition. Diabetes is one of those maladies that would disqualify a pilot. The point is that such instances of subterfuge are perhaps not so novel?

Yes, this blog is generally about workers' compensation. Statler and Waldorf like to remind me of that. Workers' compensation is inexorably tied to safety. Workers' compensation is largely about benefits. Workers' compensation may be as dependent as VA benefits upon truthful reporting of symptoms, complaints, and treatment efficacy. Workers' compensation may be challenged with non-disclosure and even misrepresentation. 

This post could be about workers' compensation

In 2019, The Florida Bar became interested in "destigmatizing" mental health issues. The Florida Bar News proclaimed a proposal to change the Bar rules regarding mental issues. That story reports there was then a lawsuit alleging discrimination against those bar applicants with a history of mental health or substance abuse.

The suit reportedly concluded by settlement with the conclusion that the Florida Board of Bar Examiners "had a reasonable concern" about such history. But, the practice that requiring bar applicants to pay for independent evaluations of mental health would cease. The Bar would contribute to the cost of such examinations in the interest of treating everyone fairly. The cost of investigating someone's status shifted thus from that someone to the state, at least in part. That was approved later in 2019.

The American Bar Association notes that some states (21) make no inquiry into mental health as regards licensing to practice law. Nonetheless, CNN reports that some law students forego mental health treatment because they fear those future questions or inquiries. One student is quoted as concluding that mental health care was not "worth the risk to his dream." Thus, a double-edged sword. People foregoing care to avoid notice may lead to poor clinical and life outcomes. People obtaining care may lead to challenges or at least expense in bar admission.

Is this any different than the pilots? Do pilots risk losing their VA benefits for disability if they admit ability? Should they? Should disability be limited to those who are disabled? Should those who are disabled by emotional issues be flying airplanes full of people around cities full of people? Should FAA medical examinations be making inquiries as regards emotional complaints, impairments, or disabilities? If such inquiry was pursued, would pilots forego and deny it in order to keep flying?

Is there similar danger to the public from lawyers with such a history? Is there a "reasonable concern" that justifies questioning such history? Are the majority of states appropriately inquiring into such emotional history, or are the 21 minority-view states appropriately eschewing such inquiry? Do we want the inquiry, recognizing it may lead to deferred or avoided treatment, or do we want to encourage diagnosis or treatment? Is there any evidence as to how many would seek treatment if no stigma were attached?

This post could be about emotional issues broadly.

This post could be about perceptions of emotional issues.

According to some, Lawyers are eighth on the list of top ten occupations for suicide risk. Pilots are not on that list. There are those who perceive lawyers as prevalent among those suffering with substance abuse issues. That list does not mention pilots. It is easy to see how a pilot takes a person's life in her or his hands with each flight. Is it really any different with a lawyer? 

You might view the two as utterly incongruent. Lawyers responsible for people's lives like pilots? Some might say "absurd." The second appellate brief I ever participated in drafting involved an ineffective assistance of counsel allegation. The lawyer had been "designated" for an indigent and paid almost nothing. The transcript was rife with instances like "please wake up Mr. _________" and "are you with us this morning Mr. _________." 

That lawyer was, we found out in the course of the appeal, suffering terminal cancer and using notable quantities of opioids. There were missed evidentiary objections, arguably incoherent arguments and objections, and essentially ineffective assistance. That lawyer was, in my humble opinion, not competent to represent anyone. His client was found guilty and sentenced to death. While it may not be so clear in every case, legal representation may indeed be life and death. 

There is much to consider. The challenges of mental health in our society are front and center. How do we deal with those who are suffering? How do we deal with those who are doing so in silence to avoid treatment and its professional implications? How do we deal with those who are treating but are also hiding their disability from their employer or others? What are the appropriate responses in regulation, licensing, and beyond?

Some will question if these are all the same. Horace Middlemier* will undoubtedly call me and insist that they are not. His argument is likely to be nuanced and logical. He is likely to see distinction in the immediacy of potential harm. I can almost hear him advocating the fairness angle as regards student's fear of gaining help. But, possibly, he will suggest that emotionally impaired lawyers are a recipe for trouble. The discussion will be intriguing without a doubt. 

This blog is not a legal authority, see Citing Authority (August 2023). Any citation of these ramblings is at the risk of the user.

*Ed. Note Horace is a fictional compilation and literary device. There is no Horace known. Any resemblance to any real person, living or dead, is purely coincidental and unintended.

Inflation

The world of business and working are the foundation of the microcosm of workers' compensation. At its root, workers' comp is one of many adjuncts of the complex relationship between production and labor in what used to be a free market society. The errosion of market forces over decades has rendered the American market increasingly regulated, socialistic, and constrained. 

The economy nonetheless remains one of the critical elements in the employee/employer relationship. In various eras, the government and the people have stepped into that relationship to attempt equity through standards. The Fair Labor Standards Act was passed in 1938 (85 years ago) and attempted to force minimums and maximums on the relationship. The idea included concepts such as minimum wages, workweek definition, child labor, and overtime. 

According to the Economic Policy Institute, the minimum wage has since ranged between $4.74 and $12.50 in inflation-adjusted value. The $12.50 "adjusted" value was when the stated minimum wage was $1.60 in 1968. Some will struggle with that. How can $1.60 be $12.50? The concept is in measuring the inflation rate and thus appreciating the purchasing value of any particular figure within the market, comparatively, at a fixed moment in time. 

In recent years, we have witnessed an amazing confluence of questionable government action. First, there was a raft of "fair" advocates in both legislative and constitutional propositions that brought us further government intervention in the work relationship. Pay.com documents that minimum wages are increasing across the continent. Such actions force wages upward, beyond what the market forces would support (if the market supported them, there would be no need for legislation). Florida's is currently $11.00 and that is creeping to a constitutionally mandated $15.00 by 2026, see Axios. That was implemented by the people in 2020. 

The law will be annually adjusted starting in 2027 to account for the impacts of inflation. You see, when there are dollars in a marketplace, those dollars will compete for goods. The supply of goods is limited to what can be produced, or at least to what manufacturers will produce. Those who produce goods are predicting what value their goods bring to market, calculating the cost of their supplies and inputs, and setting a price on their goods or services. 

Those goods or services are put into commerce and we consumers judge whether the sticker price is worth our dollars. We decide whether to consume or not. That will always be true. We will each make consumption choices. If our schools were focused on the success of students in the real world, fewer would take calculus and more would take economics. 

If a product becomes too expensive for our taste or budget, we will seek alternative products. There will be inherent competition in the marketplace of both goods and services.  One alternative might be to not consume at all. Yes, abstinence is a viable economic choice for some products or services. Read on. 

The goods are easier to envision. If the price of Beefsteak tomatoes rises, we may switch to Roma as a substitute. Or, we may simply eat our sandwich or salad without tomato. We will make consumption choices that are both individual and influenced by those around us. If we are financially able, and simply enamored with Beefsteak, then we may also just pay the sticker and buy those goods. Ask anyone who is driving a Mercedes, BMW, or Ferrari. 

Services work the same. We might respond to the lure of having someone do our income taxes for us in April. If the price of that service increases, we might decide that we will use an internet service and do our own. The tradeoff is that this decision may cost us a Saturday afternoon. We lose free time at the beach or napping or watching television, but we save the monetary cost of the tax preparer. We are making consumption choices. 

Throughout our existence, we make economic choices and decisions. They are complex. We might avoid paying the tax preparer so that we can afford the Beefsteak tomatoes. There is a persistent and unavoidable friction between our wants and our needs. The Robin Hood solution is for the government to alleviate the perceived unfairness of the market by forcing wages upward. The last decade has seen that solution repeatedly. 

The impact that workers expect is more money in the paycheck, greater flexibility in consumption, and general well-being. The same expectations can be seen in a variety of government interventions in money supply. The government borrows money (more every day) and distributes that money into the market. This is a redistribution of wealth and is intended (perhaps) to benefit those at the lower margin of the income spectrum. 

When the government forgives people's debts, the loans do not disappear. The student loan that someone incurred is not erased. Forgiveness merely makes all of us responsible. We (government) borrow money collectively to pay the ill-advised debt someone agreed to. Various charlatan education institutions talked people into a bad deal. 

They borrowed money to consume it. We get stuck holding the bag for the bad institution's behavior and the poor decision-maker who borrowed the money. In the process, we create debt that the government must service (pay interest) and thus limit the availability of those funds for other government purposes. And, more important as regards inflation, the government injects money into the market.

With no further loan payments to make, the recipient of this government relief now has greater resources. The former debtor can now make decisions between Beefsteak and Roma tomatoes, perhaps different decisions than were possible when debt payments affected total personal resources available. The forgiveness, or any government spending, gifting, or support, increases the supply of money in the market, increases the demand for goods and services, and will inevitably increase prices. 

Inflation. From whence comes inflation? When money supply increases, more money pursues goods and services, demand shifts, and prices rise. Similarly, when the supply of goods and services diminishes, an unchanged and constant supply of money will pursue those goods, demand shifts, and prices rise. We have come to expect it, to anticipate it. and to forgive it. It has become as inevitable as Thanos. 

During the pandemic, according to PandemicOversight.gov, "More than 476 million payments totaling $814 billion in financial relief" was borrowed and injected into the economy. That adds to the money supply. In the last 10 years, 28 states have mandated inflation with increases in minimum wage, according to the Economic Policy Institute. That adds to the money supply. These each influence the amount of money in the marketplace, pursuing goods and services.

But, unfortunately, the cost of labor is one of the "inputs" to the goods and services we all consume. Business is paying more for labor. The "costs" of production or service delivery increase because of labor costs. Business is then, in turn, increasing the price of goods and services. Can we force income to keep pace with prices? There are indicia that argue not. 

Inflation. The price of goods and services is increasing. If government injects more money into the market, prices will rise. If government or voters mandate higher wagers, prices will rise. The cycle is intriguing and perhaps inevitable. As prices rise, workers and benefit recipients will expect and request cost of living adjustments, and thus costs will rise again as will money supply in the market. Demand will shift, and prices will rise. Any action on prices or money supply will impact inflation. 

What is amazing, perhaps, is how elementary this concept is. Regardless of the economic model, the supply and demand of the markets dictates performance. Sure, the government can limit the price of bread to $1.00 per loaf. But if the cost of producing a loaf exceeds some profitable parameter, or exceeds $1.00, then the product cannot be rationally produced. The government could force it, but that force would only shift the burden of the shortfall, it would not erase it. 

Despite the increases in wages, CNBC recently reported that "As of July, 61% of adults still said they are living paycheck to paycheck." That is more than made the claim in a similar survey a year ago. CNBC noted that "the soaring inflation of a year ago" is perhaps easing. The consumers have nonetheless "been squeezed by higher prices." Inflation, according to experts “remains too high,” and further interest rate hikes are perhaps likely but at least possible. 

Interest rates are currently at "the highest level in more than 22 years." There are significant efforts to constrain the money supply in hopes of checking inflation. Following large infusions of money into the market, the inevitable resulting inflation is lamented. 

CNBC notes that the "lower-income workers have been the hardest hit by higher prices." Those at whom a higher minimum wage was directed are facing challenges from inflation. Those living "paycheck to paycheck" are more likely to be in lower-income strata. Despite that, "70% of Americans admit to being stressed about finances." The inflation, rising prices, and financial stress seem to have reached pandemic levels. 

And those challenges are either attributable to an increased supply of money or a decreased supply of goods. In the wake of COVID-19, there is a sound argument for some constraint on supply. Granted. Fewer goods are being produced, they are getting to market less smoothly, and everyone in the supply chain is struggling for ready and willing workers. Granted. The supply side cannot be ignored. But, the supply of money is still problematic. Too much money leads to inflation. Granted. 

Perhaps more government spending and regulation to increase wages will be the proposed solution? Let's raise the minimum wage to $100 per hour. That will fix all our problems! We are "standing in a bucket and trying to lift ourselves by the handle." As ridiculous as that must look, no one is laughing. I somehow cannot get Albert Einstein out of my mind this morning. 

Labor Day 2023

According to the Department of Labor, our day off this week is

"rooted in the late nineteenth century, when labor activists pushed for a federal holiday to recognize the many contributions workers have made to America’s strength, prosperity, and well-being."

That seems a bit of an undersell. We start our summer each year by recognizing our nation's fallen on Memorial Day. The tragedy of workplace injury has also led to an annual April recognition of Workers' Memorial Day. See Happy Memorial Day (April 2022). Those fallen are to be revered and our very existence is owed to their heroic service. 

But the first Monday in September each year we celebrate Labor Day. It is a fine opportunity for many across the country to mark the end of summer. There will be a great deal of family reunions, picnics, beaches, boats, parks, naps, and more. There is a great tendency or even proclivity for relaxation on Labor Day. In another era, there was a penchant for parades, but that has waned. 

Come to think of it, parades seem less prevalent overall in America. There seem to be far thinner crowds on occasions like Thanksgiving, Veteran's Day, and similar. Back in the Stone Age, we attended parades in droves. Perhaps the parades were better then? Or, perhaps we simply did not have anything else to do? 

How do we celebrate labor on Labor Day?

There will be sales. I thought of supporting that base contention with some links, but then decided it would be untoward. There are so many. It seems that every holiday now is associated with sales and promotions. A day missed from work is a shopping event, or at least the retailers want it to be. The world is increasingly materialistic it seems. Everybody wants more, bigger, better. And the more I want, the more money I need to make.

The exchange of labor for income is nothing new. Labor markets have persisted for eons and with them, there has been friction. Employers wish to minimize the cost of all inputs to production. That includes the materials, the labor, and the effort. The goal is to produce the good or service at the lowest possible cost and then to convey it through another exchange for the highest possible price. The result is profit. In our economic system, profit is king. 

The worker is similarly seeking profit. The analysis is not as simple, perhaps, but the analogy holds. The worker wants to make as much income as possible, generally for as little effort or investment as possible. We all strive to preserve our time for other things, whether it be family, hobbies, or other distractions. We may see "profit" as spending less time or making more money. There is a level of jealousy when labor sees the employer profiting, and perceptions of contribution and participation in that income can become fractious and disruptive (she/he is getting rich, I'm doing all the work).

This year it is worth considering where the employee/employer relationship stands and what course is likely in coming days. The Great Panic certainly contributed to recent challenges, and eventually a Great Resignation (December 2021). Labor decided that the post-panic moment was an auspicious time to seek different employment, to leverage tight labor and high demand for greater participation in the employment construct; to seek greater profit.

Alternatively, we saw people abandon work altogether. Some who had resources elected early retirement. Some who lacked resources searched for ways to subsist without them. The government was free with distributions of its (our) borrowed money, and the labor market struggled. It appears that the government will spend $1.6 trillion on welfare programs in 2023, up from about $1.3 trillion in 2022. 

Thus, we have seen changes in the employee/employer relationship. See Quiet Quitting (September 2022); Hip to Be Square (August 2023); Quiet Firing (November 2022);  Productivity is Down (December 2022); Quitting Remote (May 2023). That is nothing new. This is a relationship of long-standing, and it has persistently and consistently evolved. 

And the experience that was the Great Panic is officially over in at least one regard of employment. The Great Resignation is officially over, according to Investopedia. Days ago, it announced that "The rate of quitting fell back to its pre-pandemic level in July (2023)." Three years on, and the workforce is beginning to stabilize.

Declining job openings have rendered the outlook "bleaker for workers." There is less tendency to seek new challenges and a present alternative of essentially hunkering down to ride this out. Inflation is eating wealth, challenging consumption, and seemingly unstoppable. More on that in a future post.

The Great Panic has also impacted the future worker. Floridians struggle to understand, but in a great many states schools closed and education suffered in recent years. More broadly, schools have been challenged significantly as distractions have been allowed to prevail over the elements long accepted as critical such as reading, writing, and arithmetic. Some of us have long preached returning to the basics, but the distractions remain.

Schoolchildren are struggling with the aftereffects of the Panic. The AP reports that reading is a major concern. That article likewise mentions challenges with math. There are deficits that need to be overcome, and innovation, energy, and focus are being brought to bear. No, I don't mean Yogi.

Brookings reports that students are suffering from the quarantines, staff shortages, absenteeism, and closures. There is, from any perspective, an element of cause and effect. The University of Miami in 2021 noted that teachers (1) wanted more money, and (2) largely intended to leave the profession early. Thus the disatisfaction with the economic exchange and the Great Resignation each impacted teaching.

The Washington Post notes that "The quality of classroom teaching plunged during the" Panic. It notes that test scores since have demonstrated declining performance. The teachers, it concludes, are suffering. The result of "disrupted work conditions, student behavior challenges and high needs." That the student is suffering seems implied. That the nation will suffer, we each will suffer, is largely ignored. 

In the end, teaching is a microcosm of the world of work. The students are both input and output. Poor output from Grade One (unsatisfactory completion of learning objectives) means challenging input for Grade Two. A variety of factors are contributing to poor student engagement and focus, but the result is singular - poor outcomes. 

We might blame the teachers. They are like all other workers, they want more money for less labor. Can we really blame them for being as selfish as we all are? Employees are not altruistic, we all seek better compensation and less work. Unfortunately for teachers and education. leaders allowed poor science and conjecture to drive a Panic with dire consequences for teachers, students, and outcomes.

Dire? Schools are reopened and virtual engagement largely ceased. But, the impacts lingered here as elsewhere. Employees largely do not want to return to the workplace in person. Teachers are no different. I have instructed both live and virtual. There is no doubt about two facts (1) virtual is easier on the teacher by far, and (2) the in-person experience is of far greater value and impact for the student. Virtual is better than nothing, but is not close to equaling in-person.

At last, I come around to the end of this long discussion of various strands in the employment challenge. Workers want more, as do employers. American workers are competing with each other and with labor inputs across the world. Wage compression at home will be persistently driven by foreign competition.

Much of that foreign competition is not protected by the likes of OSHA, FMLA, ADA, Title VII, Title IX, or workers' compensation. The cost of labor is lower offshore. The wealth of workers is lower offshore. The challenges of production are less offshore. And the labor relationship is less complex for management offshore. The offshore producers will enjoy inherent and significant comparative advantages in economics. 

Unfortunately, American labor (all of us who work) will have to compete with those forces. Coming generations must be prepared, educated, and motivated. As the workplace returns to pre-Panic, and the realities of economics impact us all, the truths will be that government cannot provide welfare for all, the workplace will never be minimal work for exceptional pay for all, the real world will need well-educated, disciplined, and productive participants.

As you pause on your Labor Day 2023 and ponder the condition of the employee/employer construct, it may be a prime time to consider how we might reinforce our schools, motivate students and workers, build healthier work/life constructs, and evolve from the Great Panic into stronger employee/employer relationships, motivations, and mutual rewards.

The work relationship is, after all, symbiotic. Employers and employees need each other. Or will technology mean that they don't?