A Great day with WCCP in Bonita

I was honored to speak at the 27th WCCP Conference in Bonita Springs on Monday, June 11, 2018. But this post is perhaps more about the journey than the destination.

All over the Southeast, flights were weather-delayed on Sunday. Not mine. My flight was instead maintenance-delayed, out of the airline’s hub. Somehow, they (1) could not depart to lovely (but wet) Pensacola, and (2) could not predict when they would/could. When something goes wrong with a flight, I have rarely seen airlines provide information that was either accurate or timely. 

The airline delayed the flight for 30 minutes, then another 30, and another. At a gate full of people a lone agent finally laid it bare, “you will not make your connections, it is time to alter plans. See me for assistance.” She had at least 30 lined up as I headed for the ticket desk downstairs and hopefully shorter lines.

I spent an hour there. A kind, frazzled, and seemingly exhausted agent tried every combination she could conceive to get me to, or near, Ft. Myers Sunday. She failed. Nothing would work until "maybe" 10:00 Monday morning. And, the stress was on “maybe.” She fixed my ticket so the return to PNS would not be cancelled because I was about to fail to board the first leg of my outbound (which would have merely stranded me at their hub-airport hotel hundreds of miles further from Ft. Myers than Pensacola.

I walked toward the rental car counter, calling their 800 number as I lined up. I suspected they would be “sold out” because of tourist season and exacerbated by the various cancellations. The 800 number cheerfully changed my pick-up location from Ft. Myers to Pensacola just as I stepped up to the rental agent. “I thought you’d be sold out,” I said and he replied, “technically I am, but central reservations doesn’t know that.” 

I got a car, two-classes upgraded from the self-propelled, tin-can, skateboard the state allows me to reserve. I then saw my options, leave immediately, drive in to Ft. Myers at 04:30, and rent a hotel or catch a few winks and depart later. I elected the latter and drove out at midnight, rolling into Bonita at 9:00 (losing an hour just west of Tallahassee). It was a long night. 

I had some great conversations. I heard feedback on our Florida system, workers comp generally, and specifically the OJCC. I gained perspectives, picked up on some misperceptions, and learned what concerns are primary today for those interested in workers' compensation medicine, legal, claims handling, and more.

At lunch, I got the mike for 5 minutes to discuss Kids Chance. Many don’t know anything about it. In two years we have distributed about $50,000 in scholarships to kids of injured workers in Florida. We have more money on hand. Our struggle is finding kids to award it to. Kids Chance need help from adjusters, attorneys, case managers and more. We need leads on kids that need college help. And, if you know a child that is way too young for college, but whose family has been affected by a serious work injury, it is never to early for a family to know that Kids' Chance exists and may be of service in the future. 

After lunch, I lectured an hour on what is changing in comp. this was no “nuts and bolts” or “how to.” This was a 30,000-foot view of what’s happening today amidst what some call the "fourth industrial revolution." Others call it the technology revolution. Regular readers would find this old hat, but most of the audience were not my regular readers.

We discussed automation (September 2016), artificial intelligence (January 2017), and how the world of work will change. We discussed the mess we are in with opioids, addiction, and death (October 2017). We discussed the untenable yet unfaltering progression of medical inflation. We mixed in some #metoo in the workplace, regulatory efforts (December 2016) at cost control, constitutional challenges (Castellanos (July 2017), Miles (June 2016), Protz (June 2017)), mental health, advocacy-based claims handling, marijuana (January 2016), and the Millennials’ trending primacy in the American workforce (May 2018).

It’s fair to say I was all over the map. It was, in fairness, too much and too fast. For the handful of my readers among the attendees, it was hopefully a connect-the-dots of various issues upon which I have repeatedly written. But for those unfamiliar with this blog, I fear it touched on too much about which to be concerned. I am hopeful they visit now and read, a part of my motivation for this post.

I had the chance for a bottle of water at the conference reception. Various great conversations with lawyers, leaders, and critics. Then I slipped out and hit the airport. The weather continued to influence. I departed Ft. Myers on time but arrived at the airline's hub late. The weather had not delayed us, but had delayed many other flights. Our delay was in the taxiing with all the delayed traffic and ground congestion.

I strode through the building from the arrival gate to departure, two concourses over. I watched mankind's disregard and disrespect that comes from exhaustion and frustration, as people tripped over each other, shoved, and jostled. Each person was minutely focused on their own deadline, their own goal, their own destination. Some were loud (one lady crowed "excuse me" at the top of her lungs about every third step), some were running, and it was at moments chaotic. 

It was not panic, nor desperation. But it was frantic. And as I watched, it reminded me of workers comp. I thought of my afternoon’s audience. Both groups had people who were focused on their own missions individually. It was not that they purposefully ignored big issues or other agendas around them, they merely found themselves with inadequate time, imperfect circumstances, and an overwhelming personal responsibility. And, they struggled to deal with those issues within their own profession, the way those airport patrons focused singularly on their own "next connection," missed flight, or other circumstance. 

I respect that. I am thankful we have so many professionals pursuing their interests, and their professional course. But, we really need to each strive to periodically lift our head out of the furrow we are personally plowing and glimpse the entire field. That helps our perspective, and our appreciation for our own little piece of the big picture. There are so many professions, services, and people that touch any particular workers' compensation claim. A big-picture appreciation for those processes is educational and informative. 

We also have to consistently remind ourselves that this whole thing is about people. Both the employee and the employer, after all, are people; real people who have real problems. The rest of us are hopefully each part of a solution, but that’s something we sometimes forget when we are hyper-focused on our own little furrow, as we ignore the rest of the field. In this trip, I had a ticket agent, and a car rental clerk who managed to try and help me, with varied success, but each remained focused on me as the customer. They were frazzled, tired, and frustrated, but tried patiently and professionally to help me.

I type this on my iPhone as they announce we are on the final approach. A 23.5-hour day of education, feedback, and refocus. I gained perspective today. With any luck, I’m not alone. Once in a while, it is worthwhile to get out of the office for a day and remember the industry in which we are engaged. It is a worthy use of our time to think about more than the day-to-day of our own profession or focus and think about the big-picture issues that may change more than workers' compensation, perhaps even changing what it means to work. 

It was a great day interacting with Florida's workers' compensation community. It left me with much to contemplate. I am hopeful it did the same for them. 

Science, the Right to Privacy and Big Brother

I grew up in a world largely devoid of science. My childhood television programs exhibited detectives that worked on hunches and tips and informants. But, they did not rely on science. Science was not about crime back in the day, it was about going to the moon. That endeavor was repeated and reinforced in class after class. 

After law school, I quickly learned that much of my chosen profession is in fact about science. I came into contact with physicians, chemists, engineers, architects, and more. I learned about the scientific method, experiments, and hypothesis. My practice was dependent upon understanding their science well enough to articulate it to a judge or jury, and being able to interact with the experts whose scientific opinions underlay so much of the law. 

Somewhere in the midst of my personal historical journey, Hollywood likewise evolved. I recall Quincy stumbling into my consciousness, a medical examiner who could see more than those detectives surrounding him. Along came Crime Scene Investigation or "CSI," which morphed into CSI Miami and CSI New York. I watched as Abbie on NCIS was able to perform magic (science) in unravelling the facts of crimes based on otherwise confusing physical evidence. 

Since the 1970s, seemingly, science has become pervasive. At times, it has become miraculous. Diseases have been challenged and in some cases eradicated. Outcomes have become common, which were unthinkable in my youth. And, the law has struggled to keep pace with this changing paradigm. 

The new century brought news that the human genome had been decoded. The complexity of our being laid bare. The very definition of who each of us is expressed in the hundreds of thousands of "pairs" of chemical composition that define us. An incredible feat of science. And it led to legal implications. 

The Gaurdian says that the first criminal conviction using DNA evidence occurred years earlier in 1986. The killer of "a 15-year-old schoolgirl called Dawn Ashworth" was brought to justice in part due to the "fingerprint" of his very existence, his DNA. The Innocence Project arose from a different perspective, the use of DNA to prove the innocence of those already convicted. It says that Kirk Bloodsworth was the first convict cleared in a death penalty case using DNA. The murder for which he was convicted occurred in 1984. Clearly, DNA interpretation and science were being studied and understood long before the complete genome was decoded. 

The new century brought another innovation, promising great benefits. The Internet likewise has been a reality since Albert Gore invented it (a jest) in the 1970s. But it came of age in the 1990s and became ubiquitous this century. It made information more accessible, both good and bad. It changed the way we interact and communicate. The millennial and post-millennial generations were both born and raised not knowing what the world looked like without cell phones, the Internet, Facebook, Twitter, and more. 

More recently, the world has been seemingly surprised (genuinely or not) by the invasion of their privacy by these progressions. In 2018 we have seen allegations that a free-functioning software altered 14 million Facebook users' privacy settings. We learned that Facebook either gave 87 million user's data to a third party or allowed it to be taken. Similarly, we learned that search engines like Google hoards volumes of data regarding our every move across the world wide web, what we look for, look at, shop for, read, and buy. 

The Big Brother world of our choosing (no one has to use the Internet, use Google, or join Facebook) encouraged and enticed us to forgo privacy in exchange for convenience. Other conveniences also made the news. The New York Times reported that an interface device (personal helper) called Alexa had recorded people's conversations in their home, and shared them. That likely did not shock many, because we have already heard that cell phones and webcams can be used to spy on us anywhere. 

With cell phones, webcams, search engines, the Internet, and more, we are gaining convenience, knowledge, and more, but we are potentially sacrificing our privacy. That sacrifice came together recently in two stories that bear thought. 

In May 2018 there came news of the arrest of the Golden State Killer. The Golden State Killer is implicated in 8 killings, and clearly, this is not the first time DNA has led to an arrest. However, the Los Angeles Times reported this police investigation was novel in that it compared crime scene DNA to information that genealogical researchers had voluntarily uploaded to a website-based database. The site user's intention is to find family members, and relations, and better map their personal history. 

But, in this investigation, the police accessed this public information to attempt to find links to a killer. The Times describes 

"This technique, known as 'familial DNA,' has been controversial because of privacy concerns but has been used to solve prominent cases such as the Grim Sleeper as well as cases that barely make the news." 

Thus, "novel" but not unprecedented. The Washington Post was likewise impressed and yet concerned for privacy. As to privacy, it noted that millions have uploaded their DNA information to such websites. However, the Post reported another concern. It reported that "familial DNA searches, in fact, had an 83 percent failure rate in a 2014 British study." It asserts that "false positives" are a risk of familial DNA. In fact, NBC News reports that familial DNA led investigators to a different Golden State Killer suspect in 2017. 

Some ancestral services do not allow police access to their data. The Post reported that "23 and me" does not. However, other cites provide full access to anyone. And, the Golden State Killer is not alone, CBS News recently reported an arrest in an Arizona cold case, "the first mystery to be solved by Arizona police through the use of familial DNA," noted to be "a controversial emerging technique." 

But, in those cases, privacy was given up, if not by the accused then by the family member or distant relation that submitted to the ancestry database. In those instances, actual DNA from the accused was later obtained through other means. Perhaps this is not really different than the requirement for a Breathalyzer (personal DNA) after a traffic stop on other grounds (familial DNA similarity). But are the Dystopian implications broader?

Of course, there are examples of tissue research and use. The most famous is likely the case of Henrietta Lacks, whose cells were taken for diagnostic care in the 1950s. Those cells have been experimented upon for decades, even after her death. She is the source of multiple medical breakthroughs, but the testing was done without her knowledge, as her cells were "bought and sold by the billions," although she was not compensated. It is a "riveting story of the collision between ethics, race, and medicine." 

The Conversation describes government regulation of hospitals and others using your blood and tissue (which would otherwise be discarded) for research. This occurs even without the patient's consent if the "identifying information" is stripped from the "biospecimens." That is, what science currently sees as "identifying." Researchers are being given your blood and tissue to study, and it is highly likely they are documenting its source and more. Remember that it has not been that long that DNA was "identifying." And, there is no telling what we do not know today, that might nonetheless be "identifying" tomorrow. 

Should anyone be able to obtain and maintain information about your blood or tissue? May there come a day when telemedicine and diagnostic testing converge as ancestral research and DNA have? Will there come a day when a family member's voluntary disclosure of tissue or test results might change either the availability or cost of your medical care? Could scientists come to predict the probability or even severity of the disease process so that an actuary could better isolate and assess the risks you present? 

For example, might a twenty-something in seemingly perfect health find her or his insurance access diminish or become more costly because the tissue of an octogenarian relative reveals probabilities of the existence of some malady or process that is costly? The waiver of privacy by some is implicating the lives of others. To what extent should (are) insurance companies be able to document and study what is known or suspected about our person based on diagnostic testing, diagnosis codes, or rendered treatment? 

Certainly, we are impressed by science identifying wrongdoers. Many will struggle to have even a modicum of concern for those who are responsible for atrocities, such as the Golden State Killer, the Night Stalker, and others. As certainly, we have clearly already acquiesced in serious invasions of our privacy whether by our Internet use or voluntary sharing of DNA for our own edification. But, there is a conflict between public good, personal curiosity, and privacy. It is topical and important. 

We must consider the topic in light of what we know, the way science and the world are today. However, we might be well advised to remain conscious that science is changing, the world is changing, and what seems innocuous today may be vastly more informative tomorrow. Will the benefits (Golden State Killer) of DNA databases lead us to begin registrations or collections (why is each child's footprint taken upon birth?) 

The fears expressed regarding tomorrow's use of our blood and tissue is conjecture, Dystopian, and fictional, yes. Some might even say paranoid. But, the path of recent science may be teaching that we have only just begun to understand what Dystopian means. And, if we have learned nothing else from disruptive technology (Uber, Facebook, Amazon) we have learned that the government struggles to regulate apace innovation. Perhaps the time to consider our privacy is now.

Throwback Attorney Story

Lawyers that practice in Florida workers' compensation all have their favorite stories to recount, of a trial, a witness, an opponent, or a judge. I can recall many a day cooling my heels at the "comp office" listening to such stories as we awaited our turn for a hearing. Before our electronic paradigm, lots of time was spent waiting your turn at the comp office. But, often those water-cooler stories become lost and forgotten. That is unless the Florida Supreme Court memorializes it in an opinion. 

Almost thirty years ago (thus a "throwback"), a proceeding against a lawyer revealed and memorialized bizarre actions. In The Florida Bar v. Flinn, 575 So.2d 634 (Fla. 1991), the Court addressed activities dating back to 1986. The records of The Florida Bar reflect that Mr. Flinn was admitted to the practice of law in 1966, and so had been practicing for over 20 years at that time. 

The issues apparently began with Mr. Flinn refusing to accept being fired. Despite being discharged, he "continued to hold himself out as" counsel and "continued to interfere with the claims bill" pending before the Florida legislature. There were also findings related to his claims for cost reimbursement in that case. The findings of the referee who heard the testimony were disturbing, including dishonesty, altering a document, and more. 

But relevant to today's discussion was Mr. Flinn's representation of two workers' compensation claimants in 1986, before Judge of Compensation Claims (JCC) Tomlinson. After a trial in the cause of Marie Nieto, Judge Tomlinson "denied all claims." The Court concluded that this outcome "was due to the lack of preparation, neglect, and incompetence of Mr. Flinn." That year, Mr. Flinn also represented Timothy Moore before Judge Tomlinson. The outcome was not positive for Mr. Moore, and a psychiatrist involved in the case notified The Florida Bar "concerning Mr. Flinn's incompetence." 

The investigation that followed revealed evidence of "incompetence between 1986 and 1987," but the Court noted "the evidence was not limited to that time frame." It noted that

"Mr. Flinn repeatedly failed to properly prepare cases, failed to ask proper questions and to address proper issues, continued to ramble and to make little sense, which caused inordinate delays in proceedings."

The Bar proceedings included testimony from other workers' compensation attorneys, who described "Mr. Flinn's incompetence in the area of worker's compensation law," as well as the testimony of four of the five Judges of Compensation Claims in Miami District (John Tomlinson, William Johnson, Judith Nelson, and Alan Kuker). The referee found the testimony of incompetence consistent with the manner in which Mr. Flinn handled his own defense of the Bar complaints. 

The referee found the following behavior examples in the defense of the complaint pertinent:

created unnecessary delays, . . . asking repeated irrelevant and immaterial questions; by asking improper questions . . .; by rambling without any valid reason; . . . by attempting to introduce volumes of irrelevant documents into evidence; by filing what can only be characterized as bizarre motions . . . by filing a written closing argument that rambles and makes little sense; . . . and by filing irrelevant documents that do nothing but clutter the file.

Actions speak louder than words in many contexts. But in the process and challenges of litigation, actions, and activities engaged by lawyers perhaps are the best indicia of competence. I see a fair amount of irrelevant documents and rambling pleadings. I recently read a 20+ page document, the substance of which could have easily fit into 2 pages. It was a prime example of repetition, accusation, and innuendo. It was unprofessional and it reminded me of Mr. Flinn. 

The referee's most critical finding regarding Mr. Flinn, regarding his efforts to defend himself against the Bar complaint, was

"If this were a criminal proceeding and Mr. Flinn were counsel for the accused, and if he would have represented the accused in the same manner that he represented himself, any conviction would have to be set aside for ineffective assistance of counsel."

But, the story then takes a more bizarre turn. Mr. Flinn also alleged that "a conspiracy or many conspiracies" were underway against him. He apparently believed the Miami judges and others were out to get him. The evidence established that the Miami Judges of Compensation Claims had recused themselves (declined to hear) from cases with Mr. Flinn, and those recusals might have fed his perception of persecution.  

In one cited instance, Mr. Flinn failed to appear at trial, instead leaving an affidavit on the JCC's bench accusing the JCC of prejudice and claiming the injured worker "could not receive a fair and unbiased hearing." It was not a motion to disqualify, back to the competency allegations, apparently just an affidavit of accusation.

Mr. Flinn also accused one of the JCCs of bribery. The referee hearing the Bar complaint concluded these were false accusations. Further, the referee found that "clear and convincing evidence" established Mr. Flinn, "falsely and knowingly accused" four JCCs "of bribery and corruption." The referee noted that "there was not one scintilla of evidence presented to support any allegation of bribery or corruption on the part of any worker's compensation judges." The referee concluded that those accusations were made "for base motives."

Lots of lawyers talk about judges. We have all heard it. Maybe there is upset over an outcome, a disagreement over procedure, or a perception of bias? But when those comments are made, are they accusatory? Are they factual? And, what is the motive behind making them?

The referee recommended disbarment, but not without considerable reflection. S/he wrote of struggling with that recommendation and of daily consideration of the case. S/he noted, "It hurts to write negatively about an attorney, but it hurts more to think that conduct such as that demonstrated by Mr. Flinn can be tolerated." That is a sentiment with which I can identify. When lawyers bring motions and raise issues of each other's conduct, judges are asked sometimes to "write negatively about an attorney," and that always hurts. 

The Supreme Court found the referee's findings "fully supported in this record by clear and convincing evidence." It held Mr. Flinn "guilty of violating the Disciplinary Rules of the Code of Professional Responsibility and the Rules Regulating The Florida Bar," and disbarred him.

I never knew Mr. Flinn. However, this case comes to my mind periodically. When I hear allegations that the system is "out to get (someone)," I am reminded of Mr. Flinn's conspiracy allegations. When I hear allegations that a particular judge was not fair, I wonder if such statements might rise to the level of the false allegations made by Mr. Flinn. When I read rambling pleadings, and senseless exchanges between counsel, I think of attorney competence and professionalism; and, I think of Mr. Flinn. When I hear attorneys disparaging and degrading each other in public statements and proceedings (Would you Believe (June 2018)), I think of Mr. Flinn. 

In short, this disbarment proceeding demonstrates a parade of troubling behavior. That parade ended in disbarment, but we need to remember that such parades also start somewhere. Unprofessional behavior, "base motives," and discipline tend to begin with little things: slips, mistakes, and likely stress. The path to disbarment, in my opinion, is not a sudden and unexpected plummet from a precipice, but a slow and gradual descent down a slope. And, I think it is both possible and practical for professionals to notice when one of us is starting such a descent. 

When such a descent begins, it may be because of stress, dependency, or worse. The Florida Bar has refocused us all recently on mental health and professionalism. When we see behavior that may be the start of a descent, we owe it to everyone to act. There is help, see How Can Lawyers Assist Each Other? (April 2014). There are those willing to help. 

Over the years, I have made a few calls that started with "I am hearing from some attorneys that you seem stressed, is everything OK?" That kind of call is perhaps easier for me than for others. I do not have to practice with that lawyer, and, only rarely might they even appear before me. I welcome those referrals because those calls tell me two things: (1) you are paying attention to your peers, and (2) you care enough to do something. 

Several of those calls have seemingly been cathartic, or at least helpful. Some are glad to hear about perceptions, and seemingly just as glad someone cared enough about them to say something. I like to think that I have assisted a few merely by being able to listen to what is stressing them. Perhaps for most of us, a little compassion, patience, and understanding may go a long way.  

Would you Believe . . .

From 1965 to 1970, there was a television series satirizing secret agents. The bumbling Maxwell Smart managed to bring a Lucille Ball slapstick response to the James Bond and Derek Flint. Don Adams did for spying what Ball did for candy making. It was revived in the 2000s with a Steve Carrell and Anne Hathaway combination. 

Maxwell Smart made it a habit to be cornered or captured. When he found himself thus, he would make outlandish statements that included a catchphrase "would you believe," in trying to bluff himself free. They would begin grandiose, and devolve quickly. 

From the 1960s, one is:

Smart: At the moment, seven Coast Guard cutters are converging on us. Would you believe it?
Mr Big: I find that hard to believe.
Smart: Hmmm . . . Would you believe six?
Mr Big: I don't think so.
Smart: How about two cops in a rowboat?

From 2008, one is:

Smart: I think it's only fair to warn you, this facility is surrounded by a highly trained team of 130 Black Op Snipers.
Siegfried: I don't believe you.
Smart: Would you believe two dozen Delta Force Commandos?
Siegfried: No.
Smart: How about Chuck Norris with a BB gun?

The phrase "would you believe" came to me recently when I was reviewing a few depositions provided to me for use in a presentation. I found myself asking "Would you believe" an "attorney would say . . . ?" Reading these exchanges led me to think about a couple of things, stress and professionalism. Certainly, we all strive to be the consummate professional. Various organizations present awards periodically for exceptional professionalism. But, unfortunately, stress and perhaps exhaustion can sometimes cause our tempers to boil over, or our patience to wear thin. 

Thus, I read the following (Would you Believe?):

ATTY ONE: Your letter will speak for itself, counsel.
ATTY TWO: Yes, it will. And your letter will speak for itself, too .
ATTY ONE: Because you drafted it, and he didn't touch it. He only put in a few words.
ATTY TWO: that's a mischaracterization. You drafted your letter, and I prepared a questionnaire, which was a question and answer.
ATTY ONE: okay. I'm not arguing with you. 

(Would you believe . . . counsel actually was arguing with you, by saying counsel was not?)

ATTY TWO: Objection, asked and answered in different manners and now there's a mischaracterization and the doctor can't even make all of those recommendations. He made two recommendations, and that's it.
ATTY ONE: Do you have a nonspeaking objection to make, counsel?
ATTY TWO: Like yours?
ATTY ONE: That 's your only answer, isn't it? That you can't say I'm sorry, I'm making a speaking objection --
ATTY TWO: You constantly throughout the whole depo made speaking objections. Did you ever apologize?
ATTY ONE: I'm not apologizing.

(Would you believe . . . speaking objections countered by speaking objections? A professional argument of two wrongs making a right?) 

(Would you believe . . . Perhaps that moment might have been ideal for both attorneys to stop, breathe, and apologize to each other?) 

ATTY TWO: Are you finished? I have a few follow-ups.
ATTY ONE: A few? Does that mean an hour, ten minutes?
ATTY TWO: Are you finished?
ATTY ONE: I think so. You have how much longer?
ATTY TWO: Yes or no?
ATTY ONE: I think I'm done.
ATTY TWO: How many times are you going to ask the same question?
ATTY ONE: Really?
ATTY TWO: Yes. Are you done?
ATTY ONE: Ask your questions, attorney TWO.
ATTY TWO: Yes or no? Are you done?
ATTY ONE: I just said yes.
ATTY TWO: No, you did not say yes.

(Would you believe . . . an irrelevant argument about whether one is finished or not, unless one actually says "yes?" A professional's argument of meaningless semantics?) 

ATTY ONE: All right. You just sign forms that you don't know what you sign? I get it, to get out of your lie that you told. And now to try make me look bad.
WITNESS: I'm not lying to you.
ATTY ONE: No, of course not, you're not lying.
WITNESS: I'm not lying.
ATTY ONE: No, of course not. You filled out a form knowing it was wrong to ask for it under Workers' Comp, but you did it anyway.
WITNESS: I did it for her.
ATTY ONE: And I don't care what your motives were. You lied. Why is it so difficult -- why is it --
WITNESS: You're really a jerk.
ATTY ONE: No, you're a jerk, Doctor. You lied on the form 

(Would you believe . . . sarcasm to the doctor, name-calling, accusations?)

(Would you believe . . . a doctor calling an attorney a jerk?)

(Would you believe . . . schoolyard exchanges and pettiness?)

ATTY ONE: How long have you been doing this?
WITNESS: I don't recall.
ATTY ONE: Years?
WITNESS: I don't recall.
ATTY ONE: You don't recall if it's a year, two years, three years?
WITNESS: I don't recall. If you want to talk about -- if you want to talk about
ATTY ONE: Is there something wrong with your memory? No, I want to talk about why you lied on that DWC-25.

(Would you believe . . . like a dog with a bone, just keep digging up that "lie" allegation?)

ATTY TWO: I'm talking-- Claimant's counsel's behavior is unprofessional --
ATTY ONE: You're blocking me from the -- you're blocking me?
ATTY TWO: -- and despicable - -
ATTY ONE: No, I'm sorry, you're not.
ATTY TWO: And I'm going to move--
WITNESS: Do not bump her. Stay over there.
ATTY TWO: -- for sanctions for Claimant's attorneys behavior with Dr. _________.
ATTY ONE: I didn't bump you.
WITNESS: Stay over there.
ATTY ONE: Don't tell me what to do. I'll stand wherever I want.
WITNESS: No, you will not bump anybody.
ATTY ONE: I didn't bump anybody.
WITNESS: You just did.
ATTY ONE: No, I didn't. I stood right next to her.
ATTY TWO: Yes, you did.
ATTY ONE: I stood right next to here.
WITNESS: You stepped right in front her
ATTY ONE: I stood right next to her next to the Court Reporter. Because in case you haven't noticed, she stepped in front of me.
WITNESS: Unless you call standing up behind her, doing the bump and grind like R. Kelly, stay away from her.
ATTY ONE: Doctor, I don't appreciate your mischaracterization of me trying to stand in front of the Court Reporter because she's blocking me.
WITNESS: All right.
ATTY ONE: Maybe you forgot that and didn't manage to say it. Because she stood in front of me.
ATTY TWO: I came next to the Court Reporter so I could get his attention. And you can stop talking.
ATTY ONE: You're blocking me.
ATTY TWO: You can from behind me and brushed me.
ATTY ONE: You're blocking me.
ATTY TWO: We can hear your voice . We don't have to see you. 

(Would you believe . . . an R. Kelly reference, a "bump and grind" in a deposition, a witness defending a lawyer, lawyers arguing over who should stand where?)

(Would you believe . . . two professionals having a "he's touching me" argument reminiscent of the backseat of our collective childhood?)

WITNESS: Really? Hold on. Stop for a second. Just stop. You're being ridiculous.
ATTY ONE: Doctor, no offense, I don't need you to tell me how I am.
WITNESS: You're being ridiculous.

(Would you believe . . . a witness frustrated enough to chastise an attorney for rudeness, and ridiculousness?)

ATTY TWO: We are finished. I'm terminating the deposition  - We're done.
ATTY ONE: No, you're not terminating it. My cross --
ATTY TWO: Yes, I terminated it.
ATTY ONE: No, you're not. Doctor, I'm not -- she's interrupting me. I want to finish my question. Are you going the answer anymore questions?
WITNESS: I 'm going to call 911 on you.
ATTY ONE: Are you going to -- are you going -- are you going to -- are you going to allow me to ask questions?
WITNESS: I'm going to call 911 on you. She's -- (Untranscribable because both counsel and WITNESS are talking over each other.)

(Would you believe . . . a witness threatening to call the police, TWICE, regarding attorney behavior?)

(Would you believe . . . lawyers cutting off each other so neither can be heard?)

Would you believe? Of course, I think most of us would be as skeptical as Mr. Big ("I find that hard to believe"; "I don't think so") or Siegfried ("I don't believe you"; "No"). No, I think there would be natural skepticism about professionals behaving so. Some will no doubt refuse to believe that the excerpts above came from actual depositions taken in an actual case. And, thereafter one of the lawyers thought the transcribed testimony was suitable for filing (perhaps related to a motion for sanctions or to strike?). 

Certainly, arguments might be made at trial about testimony, records, and the why and wherefore of conclusions challenged. That is the place for arguments, before a judge. That is where one might say "the provider lied," the "explanations are not credible," the "answers were evasive," and any number of other reasons for discrediting testimony. But, that is not appropriate before the witness. In the deposition, it is appropriate to establish the fact that answer "A" is not the same as answer "B." It is OK to ask if and answers are different. But calling the witness a liar is neither appropriate nor professional. And, even if a witness or opponent becomes confrontational, "he started it" is no justification for a professional. 

Certainly, there are personalities in this profession with whom we will each struggle. And, they will not all be the same for each of us, because personalities are unique. In fact, the same person may react differently day to day; we all have good and bad days. What grates on you on a particular day may not be something I even notice. But, we will each have people or personalities or traits that annoy us. That is known, and what we must therefore learn is how to both identify those personalities/traits/habits and deal with them (people do not change or just go away because we find them abrasive or annoying). 

And finally, we have to admit there will be times when our lives will be impacted by stress, sleep, illness, and more. There will be days that we will not be our best, despite our best efforts. We must each remember that we cannot control those people and situations that we will encounter, but we can choose how we will respond to them. When we are having "one of those days," the sooner we recognize it, the better we can deal with it. 

Certainly, witnesses can be partial to a point of view or perspective. Witnesses can be advocates for a position, which may be contrary to yours. They can be confrontational and difficult. But, when a witness reaches the point of calling you ridiculous, that may be a time to pause and reflect. When a witness threatens to call the police, perhaps rethink your demeanor. If you find yourself engaged in an argument over who will stand where, who said what, and pedantic points such as whether your questioning is concluded, it may just be time to walk away for the day and try again when your mood and demeanor have calmed. 

If you are having "one of those days," perhaps an off-the-record conversation in the hall might be a good idea. If you are repeatedly having "one of those days" in the same case, or with the same opposing counsel, or the same witness, then maybe it is something more than "one of those days?" Maybe the issue is larger than you first perceive, and discussing it with a law partner, friend, or peer might help with both understanding your emotions and formulating professional reactions?  Sometimes just getting it off your chest is cathartic. 

If the feelings are instead isolated to today, maybe explaining to someone that you are having a difficulty might help you both to better address the challenges of the day? Maybe a quiet conversation about issues, perceptions, and feelings (off the record, and away from the witness) could help both attorneys to remain professional and maintain  each attorney's focus on her/his client instead of personalities? A common idiom is "it takes two to tango," and though it is difficult to embrace that as a child in the backseat, perhaps professionals can embrace it nonetheless?

I am chagrined by the deposition excerpts recited in this post. And, these are merely examples. Attorneys should remain conscious that judges scrupulously read depositions, listen to examinations during hearings, and notice professionalism. What you say will be read or heard. I have been privileged to watch some exceptional attorneys, often in uncomfortable and distressing circumstances. The best rarely or never let emotion overtake their objective of representing their client. They persevere, persist, and press on. They elicit facts and opinions from witnesses and save arguments for the judge. 

I cannot overstate my respect for those professionals, nor my disappointment when I see behavior like that quoted herein. Being an attorney is a hard job, challenges are commonplace, changes and surprises are disconcerting, and suppressing feelings is not always easy. But, the best strive to keep it professional, to control emotion, and to remain focused on the client's best interest. If you struggle to remain focused, I encourage you to find someone to discuss it with.

When There is a Different Judge

The issue of "the new judge" arises periodically in litigation, and workers' compensation is no exception. In the larger world, judges in Florida are re-elected or not, rotated from courthouse to courthouse within a Circuit, and rotated among divisions or assignments within a courthouse. similarly in workers' compensation Judges may be re-appointed or not. Judges periodically transfer from one district to another. In any litigation system, judges can be ill, take vacations, or even retire. 

There are also instances in which a judge may remove her or himself from a case. Judges independently remove her/himself from cases (called "recusal"), or may remove her/himself from cases from a case because one of the parties asks them to (called "disqualification"). In short, there are simply a variety of instances in which parties might find themselves with a "new" judge assigned to a case in the midst of litigation. The parties to a case may thus find themselves in mid-stream when a new captain takes the helm. 

In Florida workers' compensation, there are only 32 judges, but each of the 17 district offices is linked with the others by the OJCC videoteleconference system. Thus, in the event a judge is unable to preside as scheduled, it may be a judge from down the hall will cover and handle a hearing or trial. But, it is not impractical for a judge hundreds of miles distant to similarly step in by video and preside over a hearing or trial. I have done so myself on various occasions. Attorneys must thus be prepared for the potential for a change in adjudicators, sometimes on little notice. 

A reasonably frequent question in those instances regards the procedural status of the case. Litigation is not a destination, but a journey, or path. There is a tendency to think about the trial itself (destination), and certainly a great deal of decision making and process occurs at trial. But in many cases, there is a great deal that occurs before trial (along the path). 

There may be disputes about what discovery is permissible or required. A party might seek an independent medical examination, the appointment of an expert medical advisor, the production of documents, or the examination of a location involved in the accident or dispute. There can be disputes regarding the admissibility of evidence, whether certain documents will be considered, or whether certain witnesses can or cannot testify. There can be debates as to whether expert testimony does or does not meet evidentiary thresholds or standards, such as the so-called Daubert standard (February 2017). These are common examples but by no means an exhaustive list. 

Those decisions, those judicial rulings, may be made weeks or even months before the trial. But, those decisions shape the litigation (what the trial will ultimately include). The decisions can refine the course of the litigation (the timing or sequence of events before and at trial). And, those decisions can have influence beyond their specific subject. For example, a judge might grant a motion in limine preventing one party from raising a particular issue or particular evidence at trial; that decision affects that party. However, opposing parties may then, in reliance on the ruling, elect not to call their own witnesses to discuss or refute that prevented ("excluded") evidence. The judge's orders may be relied upon by all the parties in preparing for trial. 

But, what about the change in judges? Fortunately, that is not a new subject. The Florida Supreme Court addressed the issue in 2009 in Larson & Larson, P.A. v. TSE Indus., 22 So.3d 36, 40 (Fla. 2009). The Court noted that “until final judgment is entered, a trial court may revisit any non-final ruling.” 

The Florida Fifth District Court of Appeal explains 

“as a particular legal matter, an interlocutory trial court order merely granting or denying a motion neither adjudicates or judicially settles questions or issues of fact or law. Certainly it determines nothing conclusively or authoritatively. At best it indicates which way the trial judge is thinking and unless he (or she) changes his mind, which way he (or she) will rule when the subject matter of the motion is judicially determined. Traditionally it has been held that trial judges have the right and authority, at any time before entering a final judgment, to change their minds and to change any prior interlocutory ruling." Bravo Electric Co. v. Carter Electric Co., 522 So.2d 480, 480-481 (Fla. 5th DCA 1988).

Other authority of interest in this regard includes Hunter v. Dennies Contr. Co., 693 So.2d 615 (Fla. 2d DCA 1997); Bettez v. Miami, 510 So.2d 1242 (Fla. 3d DCA 1987); Monte Campbell Crane Co. v. Hancock, 510 So.2d 1104 (Fla. 4th DCA 1987).

It is axiomatic that if a particular judge might change her or his mind about such an issue, certainly a second judge considering an issue might see some issue differently than the first. Thus, when the trial judge changes, any party might seek to have any prior ruling re-evaluated or reconsidered. There may be a perception that the chances for a change in rulings is better with a new judge than such a request for a judge to change her/his own mind. However, such a request may be more complex than thought at first blush. 

The decision regarding re-evaluating a prior ruling has to also include consideration of the due process rights of all of the parties. Due process requires that parties to litigation receive both notice of proceedings and the opportunity to be heard. That opportunity must be meaningful. Therefore the notice must reasonably define what issues or allegations will be heard. That detail allows all the parties to strategize and plan regarding their individual approach to the issues, the witnesses, or documents each might wish to bring, and the legal arguments each might wish to make. 

In Isaac v. Green Iguana, Inc., 871 So.2d 1004 (Fla. 1st DCA 2004), the court held "it was prejudicial to a claimant for the employer/carrier to raise a defense of fraud in the procurement of employment two days before trial." The claimant, in that instance, was called upon to address the fraud defense in order to prevail. However, two days' notice was deemed an insufficient time to appreciate and investigate the allegations, procure or refine evidence regarding the alleged fraud, and to effectively prepare for the trial of the new issue. 

Due process has been raised in various other contexts. See, Knight v. Walgreens, 109 So.3d 1224 (Fla. 1st DCA 2013) (improper to consider defenses not disclosed on pretrial questionnaire); School Dist. of Hillsborough County v. Dickson, 67 So.3d 1080 (Fla. 1st DCA 2011)(judge raised statutory issue at hearing and denied employer/carrier opportunity to present evidence regarding it); Commercial Carrier Corp. v. LaPointe, 723 So.2d 912 (Fla. 1st DCA 1999)("an order that is not in accord with the understanding with which the workers' compensation hearing was undertaken and participated in is a denial of due process and must be reversed"). 

Thus, two legal maxims find themselves in potential conflict. Lawyers in preparation for trial may bear a striking resemblance to teenage motorists engaged in the proverbial game of chicken. Each has plotted a course, and often a collision appears imminent. However, it is not uncommon that logic overrides emotion and one or both swerve before the collision. The complication with chicken is that each might swerve in the same direction, intending collision avoidance, but accomplishing collision nonetheless. The odds of that seemingly increase the closer each gets before electing to swerve (no driver likely ever swerved when the cars were a mile apart, but as space and time diminish, the likelihood of swerve increases). 

Following that analogy, sound planning and effective action/reaction are perhaps enhanced by possessing time and the opportunity for contemplation and introspection. A tardy change in direction (one driver swerving, one attorney raising a new issue or defense or argument) may leave one's opponent with little or no time for an intellectual or considered reaction; thus, as time decreases the odds of an emotional reaction perhaps increase. And, worse, one's opponent may have already begun a correction of her/his own (a swerve based on the last best-considered perception of one's position, posture, and direction), before perceiving a last-moment swerve of the opponent.

Clearly, a judge may reconsider previous procedural rulings and decisions made along the path to trial. And, as clearly, a judge new to the case for whatever reason is no different. However, any judge must remain conscious of the consequences, intended or otherwise, of such reconsideration. Will that reconsideration result in a material change in the circumstances or beliefs that the parties have labored through and under along that path? Will the change result in a surprise to a party? Will the change mean different or additional witnesses or documents are required for trial? Will the change affect the legal arguments or theories that must be presented?

And, as importantly as the "will" questions mentioned, the judge must consider whether there remains sufficient time, after the reconsideration, for all parties to adjust their strategy, preparation, and plans before trial. The change itself might affect prejudice (harm), but I have long said that in litigation time is often the best salve for prejudice. In this regard, a judge contemplating a reconsideration of prior decisions, a change in course, might well consider also a continuation of the trial to (add time and) afford all the parties a reasonable chance to appreciate and understand the implications of the reconsideration. 

Condemned to Repeat it?

It is worthwhile to remember the past periodically. George Santayana is credited with the now famous quote "those who cannot remember the past are condemned to repeat it." That has been paraphrased repeatedly by others, but the message remains. I thought about this recently when writing a post Can We Make Ourselves Safe(er) (September 2017), which focused on security at hearing sites. 

I remember when there was no security at offices of the Florida Judges of Compensation Claims. That ended in the 1990s shortly after an incident in West Palm Beach, described in Terror, Tragedy At Law Firm. An injured worker was "consumed with rage and pain," the effects of a work accident that he said "took away his job and his strength." The worker hijacked a taxi, entered the law firm representing his employer, and took five hostages. 

The worker called a news outlet, then released some hostages, and hours passed. Eventually, the worker shot himself. When police entered the building they discovered he was not the only victim of his violence. A 38 year old attorney, with a young son and pregnant wife, was also killed. The news reported on the positive attributes of this attorney, his contribution to his firm, family and community. Ironically, neither the murdered attorney nor another that was shot in the arm had anything to do with this worker's case. 

As far as I know, the police never discerned why the shooter chose those two attorneys. The attack left lawyers and others worried and fearful, according to the news report. Fearful of their experience, but as likely fearful of not understanding why there was an attack, and what might lead to another. 

When I wrote Can We Make Ourselves Safe(er), it had been some years since I thought of the West Palm Beach death and the changes it brought to Florida workers' compensation. I had been reminded of it in 2005 when a strange attack occurred at a Pensacola law firm. In that incident, a thirty year old attorney had just been elected to the Florida Bar Young Lawyer Board of Governors. The Florida Bar News reported in Meador murdered at work. His wife was  expecting "the couple's first child" in a few months. He was involved in the Bar, his community, and his firm. 

Mr. Meador returned to his office one day and found his father in law waiting for him. The two went into Meador's office and closed the door. Witnesses reported that "five seconds later the first shot was fired," and "a minute later" the father in law, Mr. Johnson, exited the office and left the building. The story is a bit confusing because Johnson apparently then "ignored police orders to stop," drove away in his car, and "rammed a patrol car arriving at the scene." The presence of police at that time seems confusing in light of the very short times (seconds, a minute) perceived by witnesses. 

When read in 2005, news of the Meador shooting brought back memories of the Edwards shooting. The similarities were striking. Young, well-thought-of attorneys were murdered. There was no convincing explanation for the motivation, if any, behind the shootings. There were at least suggestions that Edwards was not even known to his attacker. Both troubling incidents that struck a bit too close to home perhaps. And, we reflect upon our safety. 

I concluded Can we Make Ourselves Safe(r) questioning whether we think about our safety often enough, questioning what we can do for ourselves. It occurred to me again more recently when I visited a professional office. The subject of safety was on my mind, and I noted an unattended front desk, furniture positioning that would have foreclosed seeing someone approach even if the desk were attended. It was an environment seemingly devoid of any attention to, or concern for, security. 

There are those who conclude carrying their own weapon is an answer to personal security. Following the Ohio courthouse shooting last year, a National Judicial College survey revealed that 26% of responding judges carried a weapon. Others expressed a desire to, but noted some legal restriction preventing it. I have known several judges over the years who either carried a weapon or kept one within reach during proceedings. One carried a small pistol around in a paper lunch bag. Another kept a gun in a hearing room table. Undoubtedly, it is seen as a step by a significant number. 

But, what of everyone else? I was approached at The Florida Bar Workers' Compensation Section Forum in April with that question. An attorney that takes issue with the OJCC weapons policy had questions and complaints. This attorney is licensed for Florida concealed carry, and is disturbed that the OJCC does not allow weapons in our offices. We do provide weapon lockers. Visitors can and do carry weapons to and from our offices, but they are asked to store them upon arrival. Of course, we prefer that visitors store their weapons in their own vehicles instead, but we offer the option. 

Google searches for "how can I look out for my safety" are less than helpful. When I ran that search, my top twenty results included The Men Without Hats singing Safety Dance, but not much about actual safety. A search for "personal safety violence" was more productive, including a National Crime Prevention Council website with links to tips, publications and programming. There are many suggestions, but most you likely learned long ago. Examples include awareness of surroundings, being discreet with valuables, walking in groups when possible, parking in well-lit and well-traveled areas. 

Review of several websites of suggestions and tips reinforced that I have heard many of those suggestions before. And, that leads to the conclusion that perhaps we all know a good deal about personal safety, but perhaps we forget to think about it. The safety in which we live daily perhaps lulls us into complacency about our safety and allows us to focus completely on our daily tasks. Perhaps hearing that the Florida crime rate is the lowest it has been for 47 years instills us with a sense of confidence? Similarly, I am no longer surprised when an attorney admits her/his firm has no formal disaster (think hurricanes, flooding, etc.) policy or plan. 

Which returns me to the recent visit I made to a professional office. I found no one at the front desk, the front door was thus not monitored. Had someone been sitting there, my approach would nonetheless have been difficult to observe because of the arrangement of furniture and a large plant. I was within a few feet of the receptionist's chair before someone sitting there could have seen me (in some part due to the very high counter built into the desk. There were no apparent cameras, nor even doors separating the lobby from the remainder of the business. The business was open, accessible, and utterly unsecured. 

The experience left me pondering whether we remember Mr. Edwards and Mr. Meadors. They were reportedly among the best and brightest, were engaged in their families, communities, and practices. Their murders were shocking and disturbing to so many. But, are they remembered today? Better stated, are the lessons of their deaths remembered today? Are we taking precautions to protect our own safety? Are we conscious of our surroundings and observant as we go through our day? Are we using all those personal safety tips and lessons we have heard over the years? Or, are we complacent and comfortable in a world that perhaps all too often surprises us?

Do we "remember the past" or are we "condemned to repeat it?" And, how do we get Safety Dance out of our heads for the rest of the day ("Cause your friends don't dance and if they don't dance, Well they're are no friends of mine")?

Approaches to Data

Statistics are fascinating. Statistics are often the subject of quips and criticism. Disraeli said, "There are three types of lies - - lies, damn lies, and statistics." Twain said that "facts are stubborn things, but statistics are pliable." And, though it is possible that pliability is a reality, I wonder if the real flexibility of statistics comes down to our individual perspectives?

There was a cacophony last summer when our consciousness realized that American death rates were increasing. There was increased reporting in 2017, but the news had broken in 2016, as reported by the New York Times. The Times hinted at drug overdose, suicide, Alzheimer's disease, and heart disease. It cautioned that the figures were preliminary. 

In 2017, the focus had cleared somewhat. The "primary causes" of increasing death rates were "drug overdoses and alcohol-related deaths," according to the Washington Post. The Post noted that before 2010 "Opioid and alcohol-related deaths were primarily observed among whites who lived in small cities and rural areas." But, since 2010 death rates for "urban demographics" including "whites, blacks and Hispanics" increased. 

Similarly, in 2017 the Washington Post noted that the U.S. fertility rate in 2016 "hit a historic low." That article noted a perceived trend in declining birth rates, particularly among "teens and twenty-somethings." Conversely, "the birthrate for women in their 30s and 40s increased." The paper predicted potential "economic and cultural turmoil" if the trend continued. It noted, without citing any supporting evidence or source, that the goal should be a "replacement level" of births so that the population overall "neither grows nor shrinks." 

Recently, CBS news reported that the trend continued in 2017 with birth rates declining for "women in their teens, 20s and - surprisingly - their 30s." While CBS acknowledged that decreases have been the trend since 2014, it noted that "2017 saw the greatest year-to-year drop." So, U.S. birth rates have purportedly dropped to levels not seen since 1987. 

CBS prognosticated that millennials may be to blame (must we always blame everything on the millennials?). It suggests that generation has "shifting attitudes" regarding starting families. It also suggested that "changes in the immigrant population" could be a cause. It noted that "Asians are making up a larger proportion of immigrants, and they have typically had fewer children." CBS mentioned the "replacement level," concluding that the "U.S. now stands less than the standard benchmark for replacement." 

Early in 2018, the New York Times reported that the fertility "replacement rate in developed countries is around 2.1." That story noted the U.S. rate for a period ending September 2017 was 1.77, but acknowledged the U.S. rate's "most recent peak" was "2.12 in 2007." The Times blames the postponement of marriage (perhaps a veiled Millennial dig). But, it contends that fertility rates "have not changed very much over the last 15 years" when the analysis is "controlled for marital status." The Times also credits contraception (noting that "emergency contraception" use has increased, a process "some consider to be abortions but are not counted in official abortion statistics"). 

A commentator on Fox News opined that "those having the most children are least able to pay for their upbringing," citing 2015 birth rate statistics delineating rates among various income strata. The commentator concedes that income does not equate to quality parenting, but contends that low income may mean "struggle," and that there may be reliance on "taxpayers to finance their upbringing." 

Though one of those is admittedly an "opinion" piece, perhaps they each bring a perspective without doing the topic justice. Pew research brings yet another perspective. In its January 2018 analysis Is U.S. Fertility at an All-Time Low? It Depends. Pew suggests that "hand-wringing" may be premature, and explains that the analysis of fertility rate is "complicated," more so than perhaps news media has explained. Pew outlines three different fertility measures, and concedes that none is " 'right' or 'wrong,' but each tells a different story." None of the measures is affected by the population volume (each measures birth against population, resulting in a percentage). 

Pew notes that the "general fertility rate," or GFR, "is affected by changes in the age distribution among women of childbearing age." This measure will be higher when the "share of women in their peak childbearing years" is higher (and vice versa). And, it notes that the GFR has decreased "in part" due to the "great recession" that we borrowed, stimulated, and TARPed our way through 2007-2015. In other words, Pew hypothesizes that the economy has contributed to lower birth rates among younger Americans. Younger Americans are at the beginning of their economic independence, recession experienced, and wary. Pew seems to put this on younger people's experience, and not on their "Millennial" label. 

Pew also encourages us to focus on a second measure of the fertility rate, the "completed fertility rate," or CFR. This one ignores the age of the mother at the time of birth. The CFR measures "the number of children a woman has in her lifetime." That measure demonstrated its recent American nadir in 2006. Thus, the CFR does not support that U.S. fertility is currently at the "30-year low" proclaimed by CBS News. 

The third measure is more important, perhaps. Pew explains that the "total fertility rate," or TFR, is an "estimate of lifetime fertility." This one does not count per se but instead uses current fertility patterns to estimate or forecast what birthrates will be. And, it is this TFR that is "most commonly used to characterize “replacement fertility.” Thus, while some reports have perhaps been focused on the GFR and perhaps "hand-wringing" about the "replacement level," there has been a seeming disconnect. The news has perhaps mixed two concepts, but at least has not explained well that it is TFR and "replacement level" that generally go together. None of the cited news stories explain the GFR/TFR distinction, nor that "replacement level" is more related to TFR (a prognostication, not fact). 

Pew contends that TFR has been overestimated at times, including during the "baby boom." Likewise, it suggests that "today’s TFRs may be underestimating what completed fertility" will actually look like. Pew notes that while GFR and TFR have been decreasing, the CFR in America "has risen slightly." Pew suggests that overall, during child-bearing years, the rate of birth may not be decreasing as portrayed. The age-defined measure, and the prognostication, are decreasing, while the actual volume of births (CFR) is not decreasing. 

This analysis supports that current birth figures are decreasing, but that over time births will perhaps be consistent with historic figures. The Pew perspective suggests that those births will merely occur later in the mother's life, thus leading to lower rates today (while these mothers-to-be are younger) and a later demonstration of higher rates. 

The entire discussion illustrates some critical points on statistical analysis. First, deciding what to count is critical. An example is the inclusion or non-inclusion of emergency contraception in the abortion statistics. Second, there may be more than one way to analyze data even after the data set is defined. The example is the three postulates explained by Pew. Third, reporting may be disconnected or mis-connected. An example is the news media "hand-wringing" over "replacement level," based on a metric (GFR) that is not "most commonly" used for "replacement level." 

A final note worthy of consideration is that Pew, and the news stories, attempt to delineate social contributors ("Millennials"), economic factors (Great Recession), demographics (ethnicity, marital status, etc), and science (birth control, emergency or not). Thus, the statisticians are identifying trends, and striving to connect their mathematical conclusions to human and emotional foundations. But, understanding math is perhaps far simpler than understanding and predicting individual human emotions and decisions? 

Both the birth and death rate and analysis of the media strive to combine social analysis with statistical analysis. The statistical analysis is capable of measuring only what is, and perhaps conjecturing thereon what is likely to be. The social analysis is an attempt to understand why the counts and calculations are what they are. 

The figures are mathematically precise, but nonetheless amenable to misinterpretation. How many are born and how many die can be counted. It should be precise and scientific, though Pew instructs us it is not. But more so, perhaps the interpretation of statistics, the "why" is so dependent upon sociology, perspective, and definition that Twain perceived them as "pliable," or flexible, and, Disraeli derided them as somehow worse than "damn lies?" And, there is a suggestion of the conclusion that some measure of the "why" evolves for some from perceptions, prejudices, and oversimplified social conclusions.

AWW, Equity, the Law and why Facts Matter

The Maryland Court of Appeals recently rendered an interesting decision in Beavers Construction v. Wagstaff, No 1977 (March 1, 2018). 

Mr. Wagstaff was hired to work at a rate of $18.95 per hour, and the expectation was that he would work a 40-hour workweek. Because of the nature of the employer's business, he was instructed not to report to work "on days when it was raining or snowing." Thus, for the six weeks he worked, he "often worked full, eight-hour days. However, he "worked an average of only 16.75 hours per week" due to the weather exception described. He averaged $317.41 per week in earnings. I briefly worked in construction, and weather can be a real challenge. 

On April 1, 2013, he was injured by accident. A serious fall resulted in a variety of injuries to his head, face, spine, shoulder, and knee. The employer paid his maximum wages (40 hours times $18.95) for a time. When the payments ceased, the claimant filed for workers' compensation, claiming his "gross weekly wages" as $758.00 (40 hours times $18.95). 

The employer contended that the appropriate average weekly wage (AWW) was $317.41, the amount actually earned. The Maryland Workers' Compensation Commission initially agreed with that calculation. Later, the Commission held a hearing and concluded that the appropriate AWW was $758.00. The employer appealed that decision to the Circuit Court, contending that actual earnings should control. The Circuit Court affirmed the Commission. In the opinion cited above, the Appeals Court also affirmed that outcome. 

In doing so, the Court noted that the Maryland Workers' Compensation Act "should not be strictly construed,” but instead "should be construed to carry out its general purpose.” That is, to "equitably distribute the burden of workplace accidents among the State, taxpayers, employees, and employers.” The Maryland law is one in which the balancing of equities is thus specifically referenced. Furthermore, the Maryland Court had previously held the law "is 'remedial' in nature and 'that it should be construed as liberally in favor of the injured employees as its provisions will permit in order to effectuate its benevolent purposes.’” 

The Court also noted that "the current version of the" law does not include a "formal definition of" AWW. Instead, the law merely says that the AWW should be computed using the wages "when the covered employee is working full time" and "at the time of the accident." The Court also noted that existing precedent support that in Maryland, AWW "has always suggested, to some extent, a projection of what an employee would have gone on to earn if not for the accidental injury." 

The employer argued that the Court should “endorse a uniform and predictable basis for calculating average weekly wage” to simplify the process and to afford the ability to anticipate liability. The "projecting," it argued, was speculative and hypothetical. The Court disagreed. 

The Florida statute does not allow as much flexibility as Maryland's thus does. Florida requires that the calculation of an AWW is mandatory, in Section Fla. Stat. §440.14(1):

"Except as otherwise provided in this chapter, the average weekly wages of the injured employee on the date of the accident shall be taken as the basis upon which to compute compensation and shall be determined, subject to the limitations of s. 440.12(2), as follows:" (emphasis added).

There follow various methods for this calculation. The Courts have interpreted this statutory structure to require the Florida Judge to examine each section sequentially. Thus, if the first subsection can be appropriately used, the analysis ends. If not, then the second subsection is considered, etc. 

The first consideration is whether the "employee has worked in the employment in which she or he was working on the date of the accident . . . during substantially the whole of 13 weeks immediately preceding the accident." If so, then the AWW "shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks." Section 440.14(1)(a), F.S. Substantially the whole means "not less than 75 percent of the total customary hours of employment." So, if the Maryland claimant were in Florida, he could not utilize this section as he worked only about 6 weeks. Had he worked 13 weeks, the applicability might still be inappropriate if his weekly hours were consistent ("only 16.75 hours per week").

The second statutory alternative is not addressed unless the first is inapplicable (has not worked the substantial whole). The second alternative, when the worker has not worked "substantially the whole of 13 weeks" prior to the accident, is "the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used." Section 440.14(1)(b), F.S. In Florida, the question would therefore next be whether there was some other "similar" employee with the same pay, hours, and responsibilities (generally) as the Claimant. The term "similar" can lead to long legal arguments and disagreement (am I "similar" to someone just because we each have two arms and two legs?). 

The third alternative is used only if the first two cannot be used (did not work the substantial whole of the 13 weeks and there is no "similar employee"). And, for the third alternative to be used, the employee must be "a seasonal worker." In that instance, then the "employee may use . . . the calendar year or the 52 weeks immediately preceding the accident." Section 440.14(1)(c), F.S. There is nothing in the Maryland decision to suggest the claimant was "seasonal." Though this third option is provided it is apparently not employed very often. 

The fourth alternative is used only if the first three "cannot reasonably and fairly be applied." In that event, then "the full-time weekly wages of the injured employee shall be used" unless the employee is "under 22 years of age" or is "a part-time worker" or had "adopted part-time employment as a customary practice." Section 440.14(1)(d), F.S. Those two exceptions are discussed more in Section 440.14(1)(e) and (f), F.S. Thus, the analysis in Florida would likely be under section (d). Under that section, the Florida Judge has "broad discretion" and "considerable latitude" in determining the AWW. See, Mauranssi v. Centerline Utilities Contract Co., 685 So.2d 66 (Fla. 1st DCA 1996). But, that section neither discusses "equity" nor proclaims a "benevolent purpose." 

Thus, the analysis in this case might have been decided similarly had Florida been the jurisdiction, but much depends on that "similar employee" analysis in (2). Though the outcome could well have been similar, a prospective or "actual earnings" analysis, the path to that outcome is nonetheless markedly different in Florida. Florida does not have equity as its first stop on the AWW question. Legal definitions are considered and analyzed in Florida. Only when those legal parameters fail to allow a valid calculation does the more equitable, only then does the discretion and latitude become real.

The analysis from Maryland is instructive to the market. It is notable that those who take risks may struggle to quantify it (by selling a policy of insurance, a carrier receives income and takes upon itself the risk of a loss). An auto insurance carrier wants to know, in the event of an accident, whether it will be replacing a Ferrari or a Ford Fiesta. It will tend to charge more to insure the Ferrari, because the cost of replacement and likely repair, are higher. The risk assumed is higher, thus the premium is higher. 

Equity is not always about mathematics. Equitable damages under the law are typically engaged when the legal remedies are seen as insufficient. The Maryland goal to "equitably distribute the burden" of workplace injury, thus introduces an element of uncertainty. When determining equity, courts are often deciding what is "fair," an uncertain standard that is often as dependent upon the observer's perspective or interest. Equity or fairness may be in the eye of the beholder, hard to quantify, and perhaps impractical to predict in advance. 

As an aside, the Florida courts have eschewed equity, holding that "Workers' compensation is purely a creature of statute. McDade v. Palm Beach County Sch. Dist., 898 So.2d 126, 127 (Fla. 1st DCA 2005). However, equity has been discussed periodically by the courts. Crown Life Ins. Co. v. McBride, 517 So.2d 660 (Fla.1987); Rosenthal, Levy & Simon, P.A. v. Scott, 17 So.3d 872, 876 (Fla. 1st DCA2009). 

But, actual risk is perhaps no more predictable in the Florida "legal" construct than in Maryland's equitable process. In Maryland's analysis, the carrier became equitably liable for a "promised" or "projected" earning amount, while in Florida it could likely have been liable for some other ("similar") employee's earning amount or a similar "projected" wage effected by "broad discretion" and "considerable latitude" in the Florida legal construct. 

Thus, predictability may exist in either context, but may nevertheless be a challenge. That predictability may have to focus upon the "worst case," with a focus on the potential wages (everyone might be a ("Ferrari") that could be used in a later calculation, in the event of injury. True, this may extend beyond the mundane accounting of what is (today's actual payroll). However, that calculation is nonetheless capable of mathematical calculation (promised maximum weekly hours multiplied by promised rate). 

What this discussion most aptly demonstrates is that various determinations in workers' compensation require factual determinations. Whether in a sequential legal analysis (Florida) or an "equitable" measuring of "fairness," factual findings regarding what was paid, what was promised, and what is, therefore, appropriate are required. And, it is worthy of note those factual findings depend upon the careful, competent presentation of evidence, and the patience and attention of focused adjudicators.