WCRI 34th Annual Conference - March 2018

The world is changing around us. I had an opportunity to deliver a lecture to college students recently, and we veered from "what is so" into the "what could be." I cannot see the future of course, but I have spent a fair number of hours studying the past. The reality is that markets and occupations will be disrupted by technology and change. And, while we have all experienced this over recent decades, the pace of change in increasing. So, the main points I made with the students were:

Change will happen. 

You cannot prevent change 

Change will affect you 

Successful people will accept and adapt 

The most successful people will leverage change 

I remain unconvinced that there was unanimous acceptance of these points. There were those whose faces seemed to read incredulity and doubt. Some are counting on graduating from college and entering careers that will provide them 40 years of sustenance and a comfortable retirement. They have seen that path traveled by their older family members, and they seemingly cannot doubt they will travel a similar trajectory. It is entirely possible that they are right and I am wrong; it is at least worthy of discussion. 

In March, the Workers' Compensation Research Institute (WCRI) will produce its 34th Annual Issues and Research Conference in Boston, Massachusetts. The last time I attended, the town was covered with snow and some sidewalks were impassable as they strove to pile and store it. I am hopeful that 2018 will offer a warmer, more welcoming climate. I will speak on a panel this year, titled "The World of Work is Changing - Fast. Are you Prepared?" It will be Friday, March 23, 2018 at 11:05, and will be the climactic conclusion to the two-day event. 

There will be four speakers on a panel, moderated by none other than WCRI CEO John Ruser (@John_Ruser). I am fairly confident that he had just been named CEO when I last attended the WCRI Conference in 2015. I seem to recall the significant snowfall precluded his attendance that year, and that we met thereafter at a more temperate opportunity in Florida. But this will be my first experience at WCRI since John took over. 

The panel for this symposium on change will include Denise Algire of Albertsons, Charlie Kingdollar of General Reinsurance, Steve Tolman of the Massachusetts AFL-CIO, and me (@fljcc). And, I am hopeful that in the weeks leading up to this discussion, there might be some discussion on the "Twittosphere" regarding your perceptions of the change technology promises for our future, and your predictions of whether technology will deliver on those promises. Each speaker's Twitter account is listed, and they are all listed together at the end for ease of cutting and pasting. 

Denise Algire is the Director of Risk Initiatives for Albertsons, a grocery and pharmacy retailer founded in 1939 in Idaho. The company is operating in 35 states today under "banners" including Albertsons, Safeway, Super Saver, Supervalu, and Shaw's. With over 2,000 stores and about 265,000 employees, this retailer touches the lives of a vast diversity of Americans who are employees, suppliers, and customers. 

Ms. Algire has written regarding the findings of an extensive survey regarding "cost drivers, claim trends, workforce demographics," and more. The Benchmarking Study provides insight into both change and perceptions. She has also been involved in an evolution (revolution?) in claims practices dubbed the "advocacy-based claims model," a process built upon a foundation of treating the injured worker as an individual, a person, and a consumer of services that are workers' compensation. Ms. Algire's Twitter feed (@denisezoe‏) and LinkedIn include technology, medical care, disruption, and the Opioid crisis. 

Charlie Kingdollar is the Vice President and Emerging Issues Officer at General Reinsurance Corporation (GenRe). GenRe is involved in underwriting risk through reinsurance in the markets of life, health, property, and casualty insurance. Thus, there is an interest in the workers' compensation marketplace, but as a part of a more generalized spectrum of risk assessment and reinsurance. Obviously, his company's products touch a vast assortment of Americans who purchase such coverage for themselves (health, life, auto) or who enjoy the benefits when others purchase such coverage as liability, workers' compensation, health, etc. 

Mr. Kingdollar has been a predictor of the effects technology may impose on the insurance business. This is a complex topic for insurance because technology and artificial intelligence are changing the manner in which insurance is sold and managed (internal change), and it is changing the world of risks that are insured and affecting the definitions and demand for insurance (external change). He has prognosticated on one example, the driverless car, which "will reduce frequency, severity, and likely overall auto premium" in coming years. Mr. Kingdollar's Twitter feed (@ckingdollar) and LinkedIn activity are brimming with news stories regarding technology and disruption. 

Steve Tolman is President of the Massachusetts AFL-CIO. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) is a group in which represents various Central Labor Councils, affiliate unions, and their members. It is involved in striving for policies and goals favorable to workers and constituency groups that promote a labor focus. His Twitter feed (@StevenATolman) is focused on collective bargaining, increasing the minimum wage, and collective bargaining issues. 

Mr. Tolman has been a witness to change, having begun his career working for railroads, including Amtrak, which have seen disruption from deregulation and competition. He has participated in regulatory change serving in both the Massachusetts House and Senate for over a decade. Mr. Tolman's foci included critical workers' compensation issues such as "addictive pain medication and the opiate epidemic." His role in representing workers is intertwined with what disruption will do to (for?) the American workforce. 

And, at the far end of the stage will be the lone voice from Florida (or the south at all, frankly), yours truly. I have been blogging, speaking and writing for more years than I am willing to admit. I recently calculated that I have now delivered over 1,000 professional presentations or lectures, and I am honored to participate in this one. 

I have written about investment in technology (June 2013), automation (November 2017), innovation (June 2016), job loss (May 2015), obsolescence (February 2015), disruption (December 2014), adaptation (April 2015), and government response (November 2015). I am not as prolific as some, but I have published well over 800 blog posts. I believe the fact is that technology is not coming, it is here. In my own lifetime, I have witnessed the demise of the "typing pool," the disappearance of the "pay phone," the advent of the "Internet" and "robotics," and more. I remember an age without cell phones or home computers. Not to put too fine a point on it, but I remember cars without airbags, seatbelts, or even a radio. I also remember the first airbag option, and various dire predictions about how it would never work, or sell for that matter. 

Technology is here. It has its hooks in us in a multitude of ways, and it is infusing itself into our very existence. We are, consciously or not, adapting to it, craving it, and allowing it to change how we both perceive and interact (or not) with our world. 

In Boston, we will attempt to address the issues that this all poses for us. We will remain conscious that we may individually make choices about artificial intelligence, robots, and other technology, but the world around us will evolve with or without our individual permission. The decisions of others, our employers, our peers, and the generations that follow will support evolution even if we individually elect a "head in the sand" posture. This panel will address how we see technology impacting and disrupting our future, our work, and our leisure. 

And, we will attempt to provide insight as to how these changes will impact this "little corner" of the world that we call workers' compensation. There are implications for workplace safety, elimination of jobs, creation of new careers, demand for training and skills, and much more. Certainly, the technology revolution and disruption will affect our world of workers' compensation. 

Notably, this "little corner" is much ignored and often maligned. But in honesty, it is not little by any stretch of the imagination. This little corner was paying out over $60 billion annually when I last studied it. This little corner is bigger in annual revenue than the NFL, MLB, NBA, NHL and NASCAR combined. Workers' compensation may be unassuming and quiet in the grand scheme of things, but it is undoubtedly "huge." See Langham, Where did it Come From, Where is it Going, and How "Huge" is it Anyway, Lex and Verum, June 2014, p.7-14. 

We who study comp gather, periodically, to discuss workers' compensation. There are a handful of organizations striving to build understanding and comprehension of this little corner and all it affects. I have been honored to work with the best of these, including WCI, NAWCJ, NCCI, WCRI, and more. And, I look forward to Boston in March, and the opportunity to share perspectives, thoughts, and more with a national audience focused on greater understanding and better performance of this little corner of the world, workers' compensation, which we call home.

Tweet us to raise or discuss issues: @John_Ruser @denisezoe‏ @ckingdollar @StevenATolman @fljcc. See you in Boston or on the Twittosphere!

Argo Mock Trial 2018

It was another exciting weekend in January this year. Teams from across the country gathered at the University of West Florida for the 7th Annual Argo Invitational Mock Trial Tournament. I was proud to participate. 

The dispute was centered upon a criminal matter arising in the fictitious jurisdiction of Midland. College students analyzed documentary evidence, witness affidavits, rules, and law. Team members presented opening and closing statements, conducted direct and cross-examination, raised and argued a variety of evidentiary objections. And, in all fairness, they were absolutely incredible. 

A few moments stick indelibly in my mind. At the conclusion of each trial, the judges take a few moments to provide critique and suggestions. I was surprised this year when a student asked if he could add something. He then publicly thanked me for serving as a judge throughout his Mock Trial career. He explained that he attended a local high school, and for four years thereafter that he has traveled to the Argo Invitational. And, in his memory, I have served as his judge in each of the resulting eight years. 

I was flattered by his recognition and gratitude. In fairness, I did not judge in the Sixth Annual Argo, so perception may overcome fact sometimes. But I was impressed by his poise, graciousness, and gratitude. He recognized that it requires a commitment to volunteer an evening or a weekend to participate in a program like the Argo. It is nothing compared to the commitment that is required by these students, to read, to appreciate, to comprehend. It is nothing compared to the heart and soul that they pour into their preparation and their presentation. But, it is commitment and sacrifice nonetheless.

And to what effect? I am proud to report that I saw college students who are ready to speak publicly as professionals. They analyze critically and display an amazing level of poise and professionalism. Some will go to law school, others not. However, they have each gained valuable skills that they can employ in a variety of occupations and public service. They are organized, focused, and persuasive. I cannot overstate their achievement. 

In the end, the top-placing teams were:

University of Florida, Gainesville, Florida

Hamline University, St. Paul, Minnesota

Macalester College, St. Paul, Minnesota

Auburn University, Auburn, Alabama

Florida State University, Tallahassee, Florida

University of Alabama, Tuscaloosa, Alabama

You read that right. There were teams in Pensacola from across the south, but also from as far away as Minnesota! Eighteen teams in all traveled, gave up their three-day weekend (Martin Luther King), and displayed their preparation, skills, and expertise. I was so proud of their energy and dedication. 

I was so proud of the event organizers. For the last seven years, I have marveled at the dedication and organization of UWF's Dr. Kimberly McCorkle and Dr. Susan Harrell. I am certain that there are a great many other Argos whose contributions are at the foundation of the Invitational success. And, there were 42 professionals who gave up a part of their three-day weekend and judged the many rounds, provided the scoring and critique, and made the whole experience the best it could be for all of those students. I have listed their names below. 

Coincidentally, as this is published, the Florida Law Related Education Association High School Mock Trial competition preliminaries are underway here in Pensacola. I was on the bench last night and will be again tonight. First, because I enjoy it. Second, because it is so easy to lament "these kids today" (sounding like my grandfather), but if you take some time to come see these students it will restore your faith in our future. They are your tomorrow and are worthy of your time and investment. 

Thanks to the Argo Invitational Volunteer Judges:

Alan Bookman

Lynn Brauer 

William Brightwell

Chris Crawford

Kathleen Cano

Brandon Caraway

Christine Cook

Shane Dean

Hon. Darlene Dickey

Shekka Drayton

Ed Fleming

Brenton Goodman

Hon. Ross Goodman

Susan Harrell

Ariele L. Harshbarger

Nancy Hartjen

Chris Janes 

Kathy Johnson

Kia Johnson

Rodney Johnson

Elona Jouben

Hon. David Langham

Pamela Langham

Stephen Luongo

Jonathan Mayes 

Chrisandra Nash

Sarah Olive-Smith

Charlie Penrod

Geoffrey Pittman

Valerie Prevatte

Shelley Reynolds

Michele Schamberger

Ralph Schofield

Kellie Sparks

Michael Stallings

Clayton Taylor

John Unzicker 

Luke VanFleteren

Thomas Williams

Greg Wise

Chuck Young

Amanda Ziegler

When it Stinks

The workplace can be a challenge. There is work to be done, deadlines to meet, and challenges to face. And, there are coworkers. Sometimes they assist with the tasks and sometimes they can add to the challenges. Over the years, the subject of perfume and cologne has become the subject of sarcasm and humor. There is even a website devoted to the phrase "nice perfume, must you marinate in it." I have experienced the urge to say that sentence aloud a few times over the years. 

A recent New York appellate decision reminded me of aromas in the workplace. In November, the court decided Boyuk v. Triad Retail Media, 2017 NY Slip Op 08075.  Ms. Boyuk worked as a manager for the employer. She alleged a workplace injury from exposure "to aroma therapy fragrances emitted from a fragrance diffuser in her workplace." She claimed that this exposure led to "asthma, " "lost work time and medical expenses."

Everyone has experienced aromas that are unwanted and even sickening. Just recently, I have experienced that sensation with the vehicles rented by a certain company. I found myself on the highway one early morning nauseous from the overpowering air freshener that had been put in the vehicle. When I returned the car, I complained. The vendor explained that the cars are non-smoking and when they are returned they sometimes "reek" of smoke and the freshener is used to alleviate that smell. 

Having been a rental car customer for years, I asked "But your contract says the car is non-smoking and that you will charge a $100 fee to clean the vehicle." The manager agreed that is the policy. So, I then asked, "if you charge to clean the vehicle, why don't you clean the vehicle?" And the manager replied, "we use the air freshener to clean the vehicle." So, the apparent bottom line is that the car stinks, they charge the customer $100, keep the money, soak the car in foul-smelling "freshener," and foist it upon the next unwary customer. 

In the New York workers' compensation case, the judge concluded that the employee "had sustained a causally-related occupational injury." However, the Workers' Compensation Board reversed and denied the compensability of the alleged asthma. The Court explained that an employee has the burden to prove two critical points. First "the existence of an occupational injury." That is, there must be evidence of the alleged injury or disease. Second, the employee must prove "that his or her alleged injury is causally related to his or her employment." That is the existence was caused by the work. 

The Court noted that this employee "testified that she is sensitive to fragrances." On the date of injury, a coworker was using "an industrial strength aroma therapy diffuser," which she alleged "caused an adverse respiratory reaction." The employee came under the care of "a physician and allergist," who diagnosed bronchial asthma, based on the results of a "methacholine test." The physician "concluded that claimant had sustained causally related occupational asthma."

A pulmonologist also examined the employee and "conducted pulmonary function tests" and other diagnostic testing in an "independent medical examination of claimant." The pulmonologist found no "objective findings to support a diagnosis of a pulmonary disability or any respiratory impairment." The pulmonologist opined that there was no lung disease evidenced. 

The pulmonologist also reviewed medical records and noted that the employee was first diagnosed with asthma in 2012. Despite this, the employee had completed a form during the present workers' compensation case, denying any prior asthma diagnosis. The pulmonologist noted that the diagnosis in 2012 was sufficiently significant that the employee "was prescribed short and long-term acting bronchodilators" for asthma symptoms.  There is no significant discussion of the legal effects of this in New York, but in Florida, there are significant potential effects for not disclosing an accurate and complete medical history. 

As so often occurs in workers' compensation disputes, conflicting medical evidence was thus presented. The New York Board decided that the pulmonologist's testimony was more compelling or credible, and therefore it was accepted over the allergist. In affirming the Board, the appellate court reiterated that such a determination of fact was appropriately up to the Board. The Court held that the conclusion was supported "by substantial evidence and it will not be disturbed."

Thus, though the smell of that recent rental car was undoubtedly nauseating (ask me, I'll tell ya), there is no evidence that the smell injured me. (coincidentally, I wear no cologne or aftershave; on the day I drove the malodorous car, the stench permeated my clothes sufficiently that I was asked hours later that day "Are you wearing a new cologne"). Had a doctor concluded that the malodorous car had caused an injury, it is possible that a different doctor might reach a contrary conclusion. In these situations, it then becomes a challenge for the judge to determine which expert physician to believe. Determining the credibility of experts can be a challenge, as discussed in Experts and Fakers (September 2016). 

In the end, the best tools for supporting conclusions and opinions is likely the organization and presentation of the process that led to them. In other words, conclusions and diagnosis are important, but more important is explaining how the medical findings support those outcomes. This is described in more detail in Eliciting Effective Testimony (July 2014). It is not practical or perhaps even possible to know what drove the New York Board's conclusion in this case. However, the decision supports that one expert, the pulmonologist, better explained or supported the conclusions regarding either the existence of injury or the relationship to the employment.

It is worth noting that the employee's statement denying prior asthma diagnosis or treatment demonstrated to be false was likely not helpful to her cause. Whether that actually worked against her claims or merely failed to support them, the fact is that providing as accurate a medical history as possible is advisable.

In the end, we realize that the worker was exposed to a stench in the workplace. It is possible to commiserate with the employee, knowing that most of us have likely been similarly exposed to malodorous environments, whether an intentionally soaked rental vehicle or an unwittingly aroma-soaked coworker. We can perhaps all agree that sometimes work stinks. But, whether injury exists and whether that injury is related to work, are points that require medical proof.  

So, smells may annoy or perhaps injure. They could cause airway reaction, or perhaps merely aggravate it. Whether we are injured or not, perhaps we all deserve a workplace that is not saturated in perfume, cologne, body spray, or air freshener?

The Judicial Witness

A case in Texas recently reminded me of some critical constraints on judges and their involvements. Law and Crime reported Judge Teresa Hawthorne was publicly reprimanded regarding a two cases, one involving a family member. 

In one instance, she sent an email to the presiding judge regarding the warrant upon which her nephew had been arrested. Judge Hawthorne then called the presiding judge to request a bond be set. At that time, she assured the presiding judge that "she was allowed to represent members of her family under an unspecified rule." Judge Hawthorne later sent another email requesting that the judge and "District Attorney agree to remove the warrant." 

Judge Hawthorne later testified at her nephew's probation hearing. Voluntarily testified, she was not subpoenaed to testify. During her testimony, she "referenced her judicial position on three separate occasions," and "offered her opinion as to her nephew's character." 

In an unrelated case, "Judge Hawthorne presided over a jury trial." The jury "rendered a guilty verdict, and assessed a prison sentence of 99 years." The judge then elected to meet "with the jurors to discuss their verdict." In that meeting, the judge told the jurors "Quite frankly, I am disturbed. I am disturbed by the way you came back with such a harsh verdict and sentence for this man's life in such a short time." 

She allegedly criticized the jurors, telling them that if she (the judge) had been a juror on the case, "it would have been a hung jury." She allegedly told them she "could not believe that we found the defendant guilty," that they "were extremely harsh," and that they were "too quick to judge the defendant." She also allegedly told them that she "did not believe the victim was raped at all." Judge Hawthorne later denied most of those alleged comments. 

The Texas State Commission on Judicial Conduct cited the Texas Code of Judicial Conduct, specifically Canon 2B, 3B(8) and 3B(4). Those provisions are substantially the same as the corresponding sections of the Florida Code of Judicial Conduct.

Canon 2B precludes a judge from lending "the prestige of judicial office to advance private interests." This includes a prohibition on testifying "voluntarily as a character witness." Canon 3B(8) says a judge shall not "initiate, permit, or consider ex parte communications." And, Canon 3B(4) requires that judges "shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others."

The Commission found fault with Judge Hawthorne on three points. It concluded she violated the Code by communicating ex-parte with the judge presiding over her nephew's case and testifying on behalf of her nephew. In a more general sense, the Commission concluded that in both instances, she "used the prestige of her judicial office to help resolve her nephew's" case. The Commission concluded also that the Judge's comments to the jury in the second case were also inappropriate, and that she "shamed and reprimanded" the jurors. The Commission therefore publicly reprimanded the judge. 

Ex-parte communication is not appropriate. This is discussed in Judicial Behavior and Ex Parte (October 2015) and What is Ex Parte (January 2018). A judge should not communicate with one side of a case; conversely, no party should communicate with the judge, or attempt to, without including all the parties in the communication. The premise is simple, what the judge hears from any party should be heard by all the parties. This is the foundational reason that "notice" is provided for proceedings, so that anyone involved may be present, see Notice is Notice (August 2017). 

There are instances of ex-parte communication. Unrepresented parties sometimes send the judge a letter. Judges have to be aware of that, and should immediately alert all the parties when it occurs. Unfortunately, lawyers also sometimes make that mistake, through inadvertence usually. The simple fact is that everyone makes mistakes. But, this is the first case I recall when a judge "forgot" the rules and made ex parte contact with the assigned judge, representing a family member. 

Back to the "unspecified rule" the judge believed allowed her to "represent members of her family." It is permissible for a judge to provide uncompensated limited legal services to a family member. Canon 5(G) of the Florida Code of Judicial Conduct specifically addresses this:

G. Practice of Law. A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family.

The Texas code is similar or identical. Note that this is a broad prohibition that "shall not practice law," with a specific exception for providing "legal advice" or "review(ing) documents." There appears to be no exception "to represent members" or "advocate on behalf" of the judge's family. The broader exception to "act pro se" might allow a judge to actually represent her/himself in a legal proceeding, a nod to the individual right to personal freedom of expression. However, there appears no provision in the Code allowing a judge to "represent" a family member. 

It is unlikely in most workers' compensation proceedings that the jury criticism circumstance would arise (seemingly, only Alabama currently has juries in primary workers' compensation proceedings, though other states have jury trials in their appellate process). But, this disciplinary proceeding is an opportunity to appreciate the broad implications of Canon 3B(4), which requires that judges "shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others." It is not the Judge's business to criticize personality or person. The judge may have to criticize evidence, testimony, and conclusions as part of the ruling, but not the person generally. 

The Texas judge was found to have been inappropriate with the jurors in the second case, but similar conclusions might be reached if critical or discourteous communication was directed in a workers' compensation proceeding to the parties, witnesses, or lawyers. This prohibition has been cited as impeding communication between judges and lawyers, as lamentably impeding the mentoring that was once prevalent between bench and bar. There was a time when a judge would ask a young lawyer to "stay after" a hearing and we were provided critique and advice. But, that was in private and in the spirit of professional growth and development (mentoring). And, that was done courteously, not harshly (in my experience). 

There is no prohibition in this rule on communication with counsel. That communication should not be ex parte (at least while a particular case is pending). But there is no prohibition on communication that is critical or instructive ("perhaps you shouldn't have . . . " or "it might have worked better if you had . . . "). Such communication opens dialogue and perhaps leads to better advocacy (mentoring). The prohibition is that such communication should be "patient, dignified and courteous." Surely, we are all capable of communicating in a "patient, dignified and courteous" manner, even when that communication may be critical, disagreement, or dissent? 

Judge Hawthorne's reprimand helps with reminders of the scope of judicial activity. But perhaps its greatest lesson is this last one. Everyone involved in the legal process is entitled (not a word I use frequently or lightly) to patience, dignity, and courtesy. Wouldn't it be a better world if those standards were the guide for us all? If you agree, remember you can impose them on yourself, no rule is required. The very best litigators I have seen in years on the bench are the ones who keep their cool, remain focused on their point or goal, and who treat even the most obsequious witness with dignity and respect. The very best make their point with cool, measured professionalism (and sometimes the adverse witness does not even seem to notice they are helping). 

Judges and lawyers can all take a lesson from the reprimand of Judge Hawthorne. And, that is the point of making it public. If we learn from the mistakes of others, we need not make them all ourselves. And, we can all be thankful for a mentor. If you were lucky enough to have one, pick up the phone today and reach out to say thanks. It is the right thing to do when someone helps you.

Discovery Sanctions

It has been a few years since I took the bench in Pensacola, over 16 of them to be precise. A great deal has changed in Florida workers' compensation over that period. And, perhaps some things recur. Through intent or inadvertence, possibly the same disputes and conflicts arise repeatedly? 

One area that seems to generate a fair amount of dispute is the seemingly simple task of discovery. Discovery is the process that litigants go through to learn more about the claims or defenses of their opponent(s). Once a dispute arises, the path of litigation begins, and these two (or more) parties will travel that path for some distance. Some will travel to the end of the path, which is a judge deciding the merits of their claims and defenses. 

The majority will not travel the full length of the path. They will gain perspective, and accumulate knowledge, and most will reach some resolution to their disputes before trial. How they glean that knowledge may be in a variety of ways, from examining documents, from interacting with a mediator who presents a different perspective, from accumulating more information through medical examinations and expert opinions. However information or perspective is gleaned, the accumulation of information often leads to resolution. 

Over time, the quantity and quality of information may change. The perspectives of the parties involved in the litigation may change. And, the influence of the passage of that time itself may change the way a party feels about the dispute. Time has a way of wearing people down sometimes. 

Discovery in Florida workers' compensation is governed by the Florida Rules of Civil Procedure. Not because The Florida Supreme Court (which adopted those rules) can dictate process in our administrative process, it cannot. However, the administrative rules in this process have adopted the civil rules for this purpose. See Rule 60Q6.114. Anyone litigating a workers' compensation claim would be well advised to read Civil Rules 1.280 through 1.390, but ignoring 1.340 "interrogatories" and 1.370 "requests for admissions" as those are not used in workers' compensation proceedings. 

Among the most common discovery tools is the production of documents. In workers' compensation, an injured worker may want to review the employer's payroll records to ensure a proper calculation of pre-injury wages, an employer may want to review medical reports the worker possesses. Not all of the documents that are reviewed will prove anything; they will not all be relevant to an issue in the case. However, to determine whether relevant or not, the documents will have to be exchanged and reviewed. That is a large part of the process that is discovery. 

An important aspect of this exchange of information is that it usually all occurs with no involvement if the assigned judge. When the parties to a case cannot accomplish this exchange of information they may seek "relief" from the assigned judge by filing a motion. See Rule 60Q6.115(1). This may be because someone will not provide the information requested (Motion to Compel), or because someone does not believe they should have to provide some information (Motion for Protective Order). This may be to resolve any dispute that the parties have regarding discovery. The parties should discuss these disputes. If they find they must file a motion, they should provide details and legal authority for why an order should be entered favoring their argument or position. 

When the parties require judicial assistance with the discovery process, when a motion must be filed, that may involve expenses. Time is required to research and draft a motion regarding discovery. The Civil Rules contemplate that in Rule 1.380(4). This rule allows the judge to order a party to both produce the requested documents, or answer the questions, and to 

pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees,

Thus, the party that has to file a motion and seek the involvement of the judge may be paid attorney fees and/or other expenses by the party (or counsel) that has failed or neglected to participate in discovery and thus required a motion to be filed. An important caveat of that "sanction" is that a judge may not order such payment (sanction) if the judge finds: 

(1) movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, (2) that the opposition to the motion was substantially justified, or (3) that other circumstances make an award of expenses unjust.

Just because a motion is filed does not mean that the party filing it will be awarded attorney fees. The rule does not mandate the order of fees but permits such an order. A party that fails to participate in discovery may be ordered to pay the attorney fees associated with compelling that discovery.  

However, such a sanction may be imposed only "after opportunity for hearing." Rule 1.380(4). So, before a party is ordered to pay such attorney fees or other expenses as a sanction for discovery, that party will have an opportunity to explain to the judge what circumstances or facts might support the judge making a different decision. An award of sanctions must involve an "opportunity for hearing."

And, that returns me back to my first day presiding over the motion calendar in Pensacola. Motions back then were primarily set for hearings on Thursday afternoons. It was a busy docket, and lawyers would begin gathering during the lunch hour, prepared for a 1:00 start. On many Thursdays, there would be dozens of motions scheduled for hearing; they were busy days. 

A number of those disputes were about discovery, and in many, there was a request for payment of attorney fees as a "sanction." In some, there was no excuse for having failed to produce documents. Certainly, people overlook things, forget, and become overwhelmed. In those circumstances, a hearing is rarely required because when a motion is filed or when "a good faith effort was made" to obtain the documents, the other attorney would be reminded and the discovery would proceed. It is troublesome that people forget things, but we are all human and we have to accept that we forget things. 

In some, there was no excuse for the complained-of failure to comply with a discovery request. There had been a request for documents; the attorney had called and followed up when they were not received; a motion had been prepared and served; a motion hearing had been noticed. And, after that series of reminders and the passage of significant time, the response was often "My client has just not provided me the documents judge." 

In other instances, there are valid objections or reasons why discovery has not occurred. I remember one case vividly. I heard from one party about the simple request for documents they had sent, and their efforts to follow-up. The documents were not extraordinary or exotic. The requesting party had asked, reminded, cajoled, and pled. When the other party spoke, they described how Hurricane Katrina had struck their office, they provided a picture of a foundation where their office had been, and they said they had no idea where any of their former possessions were. The storm had wiped out their records, furniture, everything. They had no paper to produce. 

In some instances, sanctions may be appropriate. In other circumstances, not so much. The argument over the Katrina-destroyed office has stuck with me over the years. 

By the time the motion gets to a judge, there should have been a discussion between the parties or attorneys. The rule requires that "a good faith effort was made." Hopefully, motions are not filed or needed when someone simply forgets, or when documents simply do not exist. And, hopefully, everyone involved is dealing with one another in a professional and communicative manner. Parties and their attorneys need to speak to one another and discuss their differences before they proceed with a motion. Over years of litigation experience, I think that maintaining communication and mutual respect are among the most critical roles of an attorney. 

But despite those best efforts, sometimes it is necessary for a judge to become involved in a discovery dispute. It is important to remember that in such a dispute a party may ask for attorney's fees or other expenses as a "sanction," and that in some circumstances a judge may find that appropriate and grant that request, after the due process of an opportunity to be heard about that imposition of sanctions.  

The critical point is not that sanctions "will" occur. The point is that they "can" occur. When counsel and parties remain diligent and communicate with each other professionally, they may never be needed. Unfortunately, however, there may be circumstances in which they are necessary. When they are necessary, they should be specific to the behavior that is inappropriate, and should be "limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated." Rule 60Q6.125(5). In other words, in those rare instances when sanctions are needed, they should be enough but should be just enough to deter the behavior. 

Volunteering and Participating

In November, WorkCompCentral reported an Officer Fights for Benefits for Injury Sustained During a Charity Basketball Game, The litigation is in Alabama, which provides some uniqueness. However, the issue of volunteer activity off the clock comes up periodically in many workers' compensation systems. 

The uniqueness in Alabama is that there is no administrative hearing process there. Workers' compensation claims in Alabama are heard by the courts of general jurisdiction, like other cases such as torts, criminal, family, probate, and more. Alabama may be the last such state without an administrative process in workers' compensation. Tennessee and Oklahoma made the transition to administrative systems recently. 

Whether or not an injury or accident is compensable in workers' compensation comes down in many jurisdictions to a two-part examination of whether the accident was in the "course and scope" of employment, and whether the injury "arose out of" that work. These were discussed in this blog in Police Officers and Course and Scope (January 2017), and Volunteer and Scope (October 2017). I received several contacts after Volunteer. Consistently, contacts, after posts are published, raise similar issues and alternative outcomes. And, sometimes they provide insightful perspectives.

The Alabama police officer case illustrates an interesting conundrum. This officer claims to have suffered a "career-ending knee injury," while playing basketball. That sentence alone might cause pause among some. What is the job of police officers? Playing basketball? Well, that activity might be seen in a variety of settings.

Last year, a Florida police officer responded to a noise complaint, Finding a group of kids noisily playing ball, the officer joined in. When the officer later returned for a rematch, he brought "backup" in the form of former NBA player Shaquille O'Neal, as CNN reported. There is no shortage of stories involving police officers engaging with youth and sports. See it in Wisconsin, New York, Michigan, and South Dakota. The New York officers did not have Shaq, but it is my favorite example just because it is unique. Some characterize these interactions as "community policing." They are actually "on duty" basketball games. Would an injury in that setting be treated differently?

But the situation in Alabama is slightly different. The Alabama officer was playing while off-duty and out of uniform, in "a charity basketball game" in 2015. There does not appear to be any dispute that the officer was in the game, or that he was injured. It is not uncommon for workers' compensation disputes to resolve around facts such as whether something happened (an "accident") and whether such an event caused the need for medical care or treatment (an "injury"). But in this instance, it appears the only real dispute is whether the officer was at work during this game.

That is a critical point. Workers' compensation is a system of benefits that provides medical care and wage replacement when someone is injured "on the job." Thus, the question raised in this case is whether the basketball injury in 2015 "occurred in the course and scope of" employment. The officer contends that it did, and his employer denies that. 

In a similar setting, a Florida policeman was not entitled to workers' compensation in 1983. The court there applied a "three-part test" espoused by a commentator. Using that analysis, the court concluded the employer was not a sponsor of the game, and the city was not shown to be promoting either the game or the officer's participation. Uniforms were not provided by the city, the game was not during working hours, and "far more police officers did not participate in the softball game than those who did." So, the court concluded the officer did not prove the city "impliedly required participation" or "made the game a part of" the employment. Brockman v. City of Dania, 428 So,2d 745 (Fla 1st DCA 1983). 

Almost ten years later in Highlands County v. Savage, 609 So.2d 133 (Fla 1st DCA 1992), the court addressed another sports injury. This was suffered by a teacher during a fundraising event. The court noted that the Florida Legislature had addressed recreational activity injuries by enacting section 440.092 in 1990. That section provides:

(1) RECREATIONAL AND SOCIAL ACTIVITIES.—Recreational or social activities are not compensable unless such recreational or social activities are an expressly required incident of employment and produce a substantial direct benefit to the employer beyond improvement in employee health and morale that is common to all kinds of recreation and social life.

The court then analyzed the teacher's claim for benefits. It affirmed the trial judge's conclusion that this basketball game was not a recreational or social activity. However, the employer required the attendance at, and participation in, this event by teachers (such as the injured worker). The purpose of the event was "developing community awareness by requiring students to participate in a community service project." Thus, the court affirmed the conclusion that it was not social or recreational. 

However, the court continued, that even if the event were either social or recreational and subject to the exclusion of the (then) recently enacted exclusion, that the worker would still be entitled to benefits. The court noted that the evidence at trial supported both that the game was “an expressly required incident of employment” and that there was "a substantial direct benefit to the employer beyond improvement in employee health and morale.” Thus, even if a social or recreational event, the evidence supported it was a mandatory and beneficial (to the employer) social or recreational event. 

These two cases illustrate outcomes with which individual perspectives may rationally disagree. There is merit in the belief that off-duty police officers playing in a public athletic event benefits a town and builds community. There is also merit in the belief that a teacher (not a coach or athlete) is not acting as a teacher when engaged in a sporting event. Some would argue that because there is merit in the courts' analysis they are "right," or that because there is merit in a different outcome the cases are "wrong." 

The law struggles with these kinds of injuries. The analysis illustrated, with or without section 440.092, is based largely upon decision-making. Did the employer make the decision that an employee would/should attend, would/should participate? Did the employer directly, or implicitly, make the event part of the work? The other element is the benefit to the employer. Was there or was there not some benefit to the employer? Arguably, both Brockman and Savage turn on these same elements, whether section 440.092 is analyzed or not. 

This subject is of course more complex in various settings. There are instances in which the evidence is more equivocal, and there are disagreements about facts and conclusions. The net result, to some, is a decrease in the American paradigm of a "company" softball team. There are employers who now eschew such activity because of the potential that sponsorship and participation could lead to litigation as described in these cases. It is possible that the Florida statute makes the analysis simpler with its requirements "expressly required" and "substantial direct benefit?" But, that predictability is not enough to encourage some employers to have a "company team."

Notably, when there is doubt regarding compensability, then it is perhaps not uncommon for a 2015 event to be litigated in 2017 or 2018 as is playing out in Alabama. One seeming consistency across the country is that these disputes take time. And while they are resolved lives and livelihoods may be on hold. 

Tennessee Exposure Lesson

A recent Tennessee Supreme Court case affirmed death benefits awarded to a widow. Holbert v. JBM Incorporated, E2017-00324-SC-R3-WC, is interesting as an illustration of occupational exposure. It is also an interesting illustration of the requirements of proving entitlement to benefits in workers' compensation. 

The trial court concluded that the widow had proven that her husband's death was caused by an exposure at work. She was awarded death benefits and medical benefits. Both the employer and widow appealed. The employer contended that causation had not been proven. The widow contended that claimed and awarded medical benefits should not have been subject to the Tennessee workers' compensation fee schedule.

The employee in Holbert was a supervisor overseeing construction of a steel building in Pennsylvania. A coworker testified that he and the employee left a casino together and that Holbert was complaining of being "chilly." As he did not feel well, Holbert waited in the vehicle "while the other crew members dined" that evening. The coworker testified that Holbert continued to suffer symptoms thereafter and that it interfered with his work. 

Holbert presented at a clinic within days of these complaints beginning, and described symptoms including cough, congestion, headache, fatigue, and chills." The clinic documented normal examinations of the lungs and abdomen, and he was provided prescription antibiotics for a diagnosis of sinusitis. Days later a coworker took Holbert to the hospital. He was unable to provide the physicians there with a history and deteriorated from critical condition to life support as he entered a coma. 

After an extended hospital stay, Holbert passed away. An autopsy determined the death was caused by "acute gastric hemorrhage of a gastric ulcer" and a fungal infection. 

One physician testified at trial that Holbert was able at the time of his hospital admission to describe his medical history including "high blood pressure and high cholesterol." He described his presence for work, but was "unable to give ... a detailed history of what he had been exposed to." The admitting physician testified that "no test exists to identify specific particles to which someone has been exposed." She testified that because she found no evidence of "infectious pathogens," then it was "reasonable to attribute" death to Holbert's "environmental exposures" at work. 

Another physician, specializing in infectious disease, evaluated Holbert during the same hospitalization. He concluded that Holbert's "illness and death were precipitated by occupational inhalation." This was based in part on various tests that were not successful in finding any "definite infectious etiology." The infectious specialist based his conclusion of occupational causation on Holbert's reported history of "breathing in grout and epoxy-type substances at his work before the onset of symptoms." The specialist opined that "something" triggers an inflammatory response, and "that can lower your resistance to the point where then you become susceptible to other things .... " But, the specialist was unable to identify what substance Holbert worked with or inhaled. 

A third physician performed a review of medical records for the employer. He opined that the "triggering event" was an abdominal process, "which then affected other organ systems," and resulted in system failure and death. He noted that there was "no evidence of inhalational injury" found on autopsy. Thus, there was no unanimity among the physicians as to whether, when, or what Holbert was exposed.

Medical evidence from a physical shortly before Holbert went to Pennsylvania documented no complaints or symptoms. Holbert's family members denied him exhibiting symptoms before the trip, but a coworker at the employer described Holbert having symptoms "a nagging cough .... like allergies" before the trip. That perception was also described by one of the employer's owners. 

A co-worker in Pennsylvania described Holbert as "occasionally coughing and sneezing," but his "condition worsened after the casino visit." Another coworker testified that "he first noticed Decedent's symptoms after visiting the casino," and Holbert then looked increasingly ill each day. 

The Supreme Court noted that the "employee seeking to recover workers' compensation benefits bears the burden of proof," and that "proof of the causal connection may not be speculative, conjectural, or uncertain." However, the Court noted that Tennessee law requires that "reasonable doubt must be resolved in favor of the employee." In Tennessee, "benefits may be properly awarded to an employee who presents medical evidence showing ... the employment could or might have been the cause of his or her injury when lay testimony reasonably suggests causation." (Emphasis added). 

The Court also noted that because the death occurred before the 2014 statutory changes, it was "required to construe the workers' compensation law liberally in favor of an injured employee." In discussing the trial judge's analysis of the case, the Court noted that "ultimately, the trial court looked to the then-in-effect statutory directive to liberally construe the workers' compensation law," and "the judicial directive to resolve reasonable doubts in favor of the employee." On these two premises, the trial judge concluded: "death was caused by workplace inhalation of some chemical that caused an allergic reaction that lead to the spiraling effect that lead to his death."

The employer essentially asked the appellate court to re-weigh the evidence and to accept the opinions of its expert. They argued that the opinions of the other experts, regarding the existence of and extent of exposure were "speculative." because no evidence was presented as to "substance types, toxicity, and work environment." The Court declined to reweigh the evidence 

This case illustrates a common circumstance in workers' compensation cases. Witnesses have different perceptions and reach different conclusions. In this instance, there were disputes about facts (was Holbert coughing before leaving for Pennsylvania) and opinions (did a work exposure result in the illness). Those disputes are usually resolved by the trial judge, and many appellate courts are reluctant to re-weigh the evidence, see Reweighing Evidence and Appellate Review (November 2017).

Was there a work exposure? Was there some exposure at the casino? To what substance was Holbert exposed? These questions were seemingly not fully resolved by the trial judge or the Supreme Court. And, that illustrates another somewhat common circumstance in litigation. Generally, one party or the other has the "burden of proof." That party has to prove the facts upon which they seek recovery or exoneration, damages, or workers' compensation benefits. 

The law in Tennessee used to require the court "to construe the workers' compensation law liberally in favor of an injured employee." This statutory language created a presumption of sorts in favor of injured workers. This is essentially a legislative determination that if all else is equal, then the injured worker prevails. 

The Tennessee Court referenced a change in Holbert, but better explained in Willis v. All Staff, No. M2016-01143-SC-R3-WC (2017). 

Tennessee Code Annotated section 50-6-116, which previously required a liberal construction of the workers’ compensation law, has been amended to now provide that the workers’ compensation statutes “shall not be remedially or liberally construed but shall be construed fairly, impartially, and in accordance with basic principles of statutory construction[,] and this chapter shall not be construed in a manner favoring either the employee or the employer.”

Last year, the Florida First District Court explained a similar Florida presumption, formerly in section 440.26, Fla. Stat., in City of Jacksonville v. Ratliff, 217 So.3d 183 (Fla. 1st DCA 2017). This was similarly "a presumption in favor of a claimant in “any proceeding for the enforcement of a claim for compensation.” But, Florida repealed that presumption and enacted section 440.015, Fla. Stat. in 1990. That provision places parties in Florida workers' compensation proceedings on equal footing:

In addition, it is the intent of the Legislature that the facts in a workers' compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer.

Equal, that is in many instances, but not all. Florida has enacted presumptions regarding specific conditions and occupations. 

The effect of such statutory definitions is intriguing. Had Holbert been exposed (presuming that he was) in August 2014, instead of August 2012, the outcome in Holbert v. JBM Inc. might have been different. This is not because the evidence or the facts would have been different, but because the law would have been. The law in 2012 presumed the worker's injury would be compensable (related to work), but in 2014 the law no longer made that presumption. 

The remainder of Holbert, as illustrated by the Florida Court's similar discussion of section 440.26, is simply that the party provided a statutory presumption will prevail, absent proof to the contrary. And, appellate courts are unlikely to reweigh that evidence once a trial judge has made valid credibility determinations. 

Sleuthing Addressed Again

I recently noted issues with the independent investigation by a judge in The Sleuthing Judge (October 2017). I have also previously written about the prevalence of appellate decisions citing such dubious sources as Wikipedia. That has become somewhat common. There are even experts advising attorneys on how to reference Wikipedia in appellate briefs. 

The Texas Supreme Court blog refers to Wikipedia favorably as "the largest single compendium of human knowledge ever assembled." Wikipedia is also accepted as a definitive authority by the Florida First District Court of Appeal, see Truje-Perez v. Arry's Roofing. Despite the awe of Wikipedia's size, the fact remains it is a compendium of thoughts and conclusions (opinions, perhaps instead of facts?) of a great many individuals, submitting and editing on their own, largely without standards, verification, or professional oversight. It may be large, but its authoritative nature is open to debate, despite it being relied upon by judges. 

The American Bar Association, a voluntary organization in which some 410,000 lawyers, law students, and others are purportedly members (note that I am citing Wikipedia for that membership size), recently entered the debate of judicial sleuthing with May judges search the internet for facts? ABA ethics opinion sees problems. 

The ABA concludes that it is appropriate for judges to conduct legal research, exploring legal theories and precedent, which was "not cited by the parties." Similarly, the Florida First District Court has held that the trial judge has an obligation to perform independent legal research, even when the parties to the case make unsubstantiated arguments and provide no precedent or authority in support of their arguments. In the Court's view, it is the trial judge, not the parties, that has the obligation to research and homogenize the potential legal authorities that could potentially support either party's arguments. 

However, the ABA ethics opinion concluded that a court "finding adjudicative facts” about a "case online is generally prohibited by the ABA Model Code of Judicial Conduct." See ABA Formal Opinion 478. The opinion draws a distinction and expresses "an exception" for judges to do such fact-finding or sleuthing online regarding "facts that are subject to judicial notice" under an applicable evidentiary rule or code "because they are generally known and not subject to reasonable dispute."

That phraseology seems similar to Florida's Evidence Code and rules, Section 90.202(11), which says a "court may take judicial notice of the following matters":

(11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.

The ABA contends that "judges’ decisions must be based on evidence presented on the record or in open court." That conclusion is consistent with the legal concept of confrontation. Confrontation leads us to have evidence presented in an open hearing. Witness testimony can be subjected to the test of cross-examination, and a finder of fact can assess credibility and reach unbiased and impartial conclusions about what has happened, when, and where. As importantly, the "so what" questions can be addressed (what are the results, the damages that are needed to rectify the situation). It does not happen in back rooms or alleys, it happens in the sunshine, on the record, and everyone involved has the opportunity to speak to the issues and questions. 

The ABA contends that "judges should not combine the role of advocate, witness, and judge," citing Model Rule 2.9(C) of the Model Code of Judicial Conduct. The Model Code, as the name suggests is a template or recommendation of this voluntary organization. Each state decides what its own Code of Judicial Conduct will say, sometimes adopting the recommendations of the Model, and sometimes not. This was previously discussed in The Code of Judicial Conduct and Scouting (March 2015).

The Model Code section 2.9(C) has not been adopted in Florida. It states:

A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

That appears to be a fairly clear statement that would apply to any "judge," not just a trial judge. Perhaps that language is broad enough to preclude an appellate judge from investigating Wikipedia (or Wikipedia-like) information on the internet, information that has not been debated in an open hearing and subjected to the prohibitions and restrictions on evidence. This would suggest that appellate judges should stick to the evidence in the record. 

The Model provides hypothetical situations, as well as some broad guidelines. The ABA contends that if additional information is needed to decide a case, then it "must be provided by the parties or the lawyers, or must be subject to judicial notice." And that if anything case-specific is needed, to "corroborate facts, discredit facts, or fill a factual gap in the record," then "it is improper for the judge to do the research." If the judge is seeking "background" about the parties or the subject of the case, then that data gathering and consideration "must be subject to the adversary process." 

If these are not true, then one could perhaps validly question what the purpose is of trial. Lawyers and parties work hard to prepare and present their case for adjudication. They will make strategic decisions about what evidence to adduce, what questions to ask, and what sleeping dogs to leave sleeping. When the judge begins independently sleuthing, researching, and questioning, s/he is overriding those strategic decisions, focusing the case on what the judge feels is important rather than upon what the parties have decided to bring forward for adjudication.

The parties' decisions and choices should be respected. It may be that the nature and quantity of evidence the parties have chosen is not enough to prevail. That is lamentable. But, that decision was the party's choice. When the judge seeks to explore different or further evidence, the judge slips the confines of an adjudicator and becomes instead an advocate (and as the decision-maker, a powerful advocate indeed). With that adoption of the advocate role, the impartial and unbiased adjudicator role is abandoned, in whole or in part. 

The ABA suggests a second narrow exception to the broad sleuthing prohibition. It suggests that the judge may appropriately look "for general or educational information needed for a better understanding of a subject." However, that need for information or knowledge must be "unrelated to a pending or impending case." In other words, there is nothing wrong with a judge expanding knowledge, learning, reading, and growing. But not in pursuit of determining a particular case. 

The Model Code seems to support my earlier discussion of the inappropriateness of judicial sleuthing. However, a particular state code may or may not adopt this specific Model Code provision (2.9(C)). Is the absence of that provision from a specific state Code, such as the Florida Code of Judicial Conduct, demonstrative of a belief that such sleuthing is permitted? Or, is the absence of this clear prohibition instead evidence that state officials believe existing Code provisions already suggest or dictate the same non-sleuthing outcome?

It seems important to remember the overarching statement of Canon 3 of The Florida Code:

A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently

And, Canon 2 of The Florida Code:

A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities

Similarly, Canon 1 of the Model Code states:

A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Do these provisions direct one to the same conclusion of sleuthing that Section 2.9(C) of the Model Code? 

Is it possible to be a sleuthing judge, researching issues not raised or presented, and remain impartial? Are the suggestions of the Model Code of general assistance in this regard, or is the presence or absence of an adopted version of Model Rule 2.9(C) critical to the analysis? And, should the analysis be different for an appellate court than for a trial judge? Is it appropriate for appellate judges to unilaterally supplement the record (fill in missing information) with Wikipedia facts to substantiate their decision? If it is only appropriate when facts are not subject to dispute, then what benefit does Wikipedia provide anyway. If the fact is that well known, then why is it necessary to cite any source or authority?

The American judicial system must be respected. The people need to both understand what judges do and be comfortable in following their conclusions. That outcome is encouraged when judges stick to the role of adjudicator when judges and courts let the parties try their case, and when dubious sources like Wikipedia are avoided. Academics and educators distrust it, and may even penalize a student for using it. And, despite that appellate courts proudly use it in support of their conclusions.