The Business of Law

In 2019, Forbes published "What's A Lawyer Now? Law's Shift From Practice To Skill." the theme of the piece has to do with legal skills, but it is also a dismissal of the "practice of law." The author posits that there is a significant "distinction between practicing law and engaging in the delivery of legal services." He explains that the latter is "the business of law."

I have heard that lamentation more than once. The last generation has lectured my own repeatedly about the demise of professionalism. They find indicators in the diminished collegiality and cooperation. They perceived less sense of community and mutual support in the legal community. There have been mentions in this regard of lawyer advertising, proliferation of law schools, intrusions of technology, and more. I hear stories from lawyers about how they do not agree with perceptions of change, while others insist the "practice" is diminishing. 

The Forbes author notes that the practice of law has evolved. The traditional interrelationship of attorney and client remains. But, he contends that "a wide range of . . . prospective industry stakeholders" have been added to the mix, as have various "allied professional programs." He characterizes the changes in legal practice to be "a tectonic shift." The author describes an evolution from a profession "to a tech-enabled, process and data-driven, multi-disciplinary global industry," the "business of law."

There is discussion of changes being affected in lawyer's careers and expectations. The manner in which they engage clients and deliver services is likewise perceived as transforming. The "legal practice is shrinking and the business of delivering legal services is expanding rapidly." In this regard, the author suggests that law schools are inadequately preparing graduates to compete and thrive in the new paradigm. Some would argue that those schools did a pretty poor job of preparing students for any paradigm. What lawyer got a management, marketing, or finance class to prepare her/himself to run a small business?

This indictment is not for education alone. The Forbes piece proceeds to criticize both the appreciation for and adaptation to, the new paradigm among "traditional law firms." Though he concedes some law firms have exhibited at least passing appreciation for the demands and opportunities of a broader approach to legal services, he believes they have learned that such a transition is "easier announced than delivered." He blames this on the firm leadership who is steeped in the structure and practice of the past. Thus, he contends, the law firm partners are struggling to adapt to a broader context business model, distinct from the billable hour and leveraged associate attorneys. 

The article provides an overview of the three "main elements of practice" ("legal expertise, judgment, and persuasion") and the "several elements" of persuasion: "emotional intelligence, credibility, command of the legal craft, and earning trust." The author contends that many lawyers have lost touch with these elements as they have become insulated from the actual client in large firms. He believes many such lawyers became "bored" and "disillusioned" in the process: "high-priced, well-paid cogs in the law firm wheel." 

No one wants to be a cog. A job-posting website published a funny advertisement years ago featuring young people expressing their career goals. Among the best quotes: "I want to climb my way up to middle management," "I want to be underappreciated," and "be replaced on a whim." These are funny but poignant. How about being replaced by a computer? Or, finding that the skills in which you have invested are of limited market value? The realization of those lawyers that find themselves "cogs" may be tempered short-term by the "well paid" adjective. Then, they may become more than disillusioned. 

Ask yourself if you remember a time when each lawyer had multiple staff assigned. That seems to have evolved. I know lawyers today who practice without staff support. Others work in firms where multiple lawyers share the support of one staff person. The secretarial functions have diminished it seems as technology has empowered us all. Dictation has faded from the skill set. Books and libraries have become rare. Evolution is around us. 

The result, according to this article, is clients "migrating work once performed by law firms to new provider sources." The consumer is driving a market change with the support of technology and access to information. What remains, he contends, is a "narrow band of practitioners" in the legal profession who are working "on the highest-value client matters." Other practitioners are not likely to draw the highest earnings. In some jurisdictions the trend is to deregulation of services, allowing more non-lawyers to perform formerly "legal work." In other instances, the author says that "corporate clients are narrowing that list on their own."

This article advocates for "customer-centric, digital, data-based, tech-enabled, diverse, agile, multidisciplinary, and cost-effective" platforms for the delivery of legal services. While this is a change, the author cautions that it is not without precedent. Indeed, he contends that this is merely returning the practice of law to "what it meant to be a lawyer before the ranks of the profession swelled and law firms became highly profitable, undifferentiated big box stores." He contends that the practice of law "is once again becoming the province of those lawyers best equipped to engage in it.

In terms of education, the suggestion appears to endorse obtaining excellent legal skills such as analysis and expression. However, the author suggests that lawyers also develop skills in varied fields such as:

• project management
• data analytics
• deployment of technology
• process design

These are not substitutes for legal knowledge, which is nonetheless required. However, these are amplifiers or compliments of that legal knowledge. How many lawyers ever received training in these fields in law school, continuing education, or even from a law firm mentor? The answer may not be zero, but it may be close. Lawyers simply do not tend to receive big-picture business acumen in school or practice. In my experience, some law firms care about nothing but today, the receivables generated, and collections made. As Puff Daddy reminds, sometimes "it's all about the Benjamins." 

The author contends that now lawyer skills and knowledge will be brought to bear on commercial and other challenges through client retention of large and diverse entities. In those, he sees the collaboration of lawyers, "engineers, data analysts, consultants, technologists, and other allied legal professionals." Through these collaborators' interaction and experience, there is the contention that challenges may be met in a multifaceted approach with a persistent focus on "customer-centricity," and appreciation for the big picture. 

That is perhaps not a real distinction. I had clients with such focus decades ago, they simply brought those perspectives to bear on problems themselves, and I was just one that was brought to the table. The change in this new paradigm is perhaps more from the standpoint of consolidating the perspectives from a unified source. Some might see a potential for such a unified team to become an echo chamber through isolation. Others might question whether such a conglomeration might drift towards its own best interest rather than the clients. Of course, there have been those who said the same about law firms already. It is a challenging set of considerations. 

The author contends there remains value in the skills and knowledge of attorneys. However, he sees those skills more ideally focused in multi-disciplinary businesses that can deliver perspectives and solutions in the business and company setting. It is striking that these novel paradigms seem to ignore the spectrum of litigation attorneys. Certainly, in-house legal decisions may alter the manner in which litigation is assigned, managed, and compensated. Those have been trending for decades. But, do you want a "big box" to be your face in front of a judge or jury as opposed to a local lawyer whose law firm with community roots? Perhaps the actual trial of cases (not the majority of even the best litigator's time) will remain the practice of law?

Even so, it appears that litigation will also continue to evolve in the larger picture. Consider the list above and how knowledge of, compatibility with, those elements would enhance the efficacy of a litigation practice. The world is increasingly dependent upon management. That is driven by efficiencies, specializations, technologies, and marketplace trends. As those who practice law, particularly in litigation, consider the future, there is much to consider. Will the litigators take a page from this discussion and pursue the ancillary skills to enhance their ability to bring value to the client, and thus prolong their practice?

Injuries can Affect the Whole Family

In 2020, I spoke at the Worker’s Compensation Claims Professional (WCCP) Holiday Conference. It was another virtual event. Virtual is was just the way of our world in 2020. With the vaccine in deployment (x3), it is my strident hope that this community returns to normalcy in months to come. 

I was called upon, at the conclusion of my presentation, to say just a few words about Kids Chance of Florida. I was moved by the opportunity. I enjoy reminding people that work injuries affect more than workers. They often impact families, sometimes profoundly. It was a recognition of this that drove the formation of Kids Chance of Georgia some 32 years ago. That spurred the birth of Kid's Chance of America more recently. It is moving to know that Kids Chance of America is now on track to establish an affiliate organization in its fiftieth state. 

With the 50th state affiliate, the reality and impact of Kids Chance have been so successful. Successful? As of December 2020, this organization of various state affiliates has distributed 7,500 scholarships to deserving young people. The total distributed so far is over $24,000,000. This has been a phenomenal Kids' Chance of America effort, with an amazing assortment of volunteers. Yes, successful. That is an aggregation of the efforts of many people in many communities striving to make a difference; recognizing that the kids of injured workers face struggles.

Kids Chance of Florida is but one of the 50. It consistently strives to locate and identify viable scholarship applicants. It is surprising that finding students in need is such a struggle. However, various state affiliates report similar challenges. There is seemingly agreement across the country that more applicants are wanted.

The most effective tool for locating applicants is word of mouth. Certainly, there is social media, the annual awareness week each November, and the periodic display or sign at a conference. But the best manner to reach these deserving kids is for the community to remain aware that injuries impact families. If claims and risk professionals remain attuned to the potential for students in the families of significantly seriously injured workers, they can raise consciousness. 

Claims and risk professionals can: (1) describe to workers that scholarship opportunities are available; (2) visit the Kids' Chance of Florida website or Kids' Chance of America website and refer a student anonymously. Age does not matter. The organizations will monitor and follow students, and then attempt to establish contact again as students reach high school.

Educational goals can be in a variety of pursuits. Kids' Chance of Florida is interested in students with aspirations for state college, university, and vocational school. The point is education, the goal is locating deserving kids who have been impacted by a parent or guardian's workplace injury. The organization's need is for you to help identify these students.

But, a little publicity never hurts either. On March 9, 2020, I am on the highway to Tallahassee, and the sun will not rise for hours. I am headed to a meeting of the Florida Cabinet at which a resolution will recognize these aspiring young people and their educational goals and success. The Cabinet recognizes that work accidents impact students and is helping to remind the public of that with a resolution. It is expected to be a quiet Capitol, with limited access due to COVID. But, it is The Florida Cabinet recognizing the kids. I am grateful to the resolution sponsor, CFO Jimmy Patronis, and all of the Cabinet for their focus on these outstanding young students. I am proud of these students and their academic successes in the face of adversity. 

But, I am also cognizant that none of this would be possible without volunteers, ambassadors, and more locating the students and getting them to apply. Won’t you keep an eye open for a student with aspirations and goals? Make a referral! The class of 2021 is in their last semester of high school. This is an ideal time!

Who is the Employer?

There are periodic disputes in workers' compensation regarding the relationship between parties. There are often contracts by which one entity or person obtains the services of some other entity or person. However, such a relationship of procuring services is not the equivalent of "employment." The relationship in which workers' compensation is implicated is that of "employer" and "employee." The definitions of those terms is helpful for context.

The 2021 Florida Legislative Session promises to be busy. Anyone who has spent time around the legislative process might suggest that all sessions are busy. As yet, there are few mentions heard of workers' compensation. One pair of bills (a new law requires a bill in each of the House of Representatives and the Senate, commonly called "companion bills") suggests implications for evidence and proof in workers' compensation disputes. Before delving into these two bills, however, some reminders of the foundation of workers' compensation will be helpful.

The word "employee" means

"any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors." Section 440.02(15)(a).

As straightforward as that definition may seem, the statute proceeds with (15)(b) and (c) clarifying what "employee includes." There is then a lengthy set of exceptions in (15)(d) of what "employee does not include." There are instances in which the person performing the labor will be an "independent contractor" rather than an "employee."

This has been discussed on these pages before. See Did Dirkson Have it Right (September 2014); Misclassification - What it is (January 2015); Newspaper Carriers and the Independent Contractor (July 2015); What is an Employee (March 2018), Progress of Folly (January 2020), and Epic New Prime (January 2019). The issue is important because rights and duties under the Florida Workers' Compensation Law may well depend upon whether there is or is not an "employee and employer relationship." Determining who the employer is may be critical to issues of both liability and immunity. 

If this is not complex enough, even when a worker is hired by, directed by, scheduled by, and paid by one entity (an "employer"), that worker may become the "borrowed servant" of another through overt means of contract or possibly through the exercise of sufficient control of another. That analysis can become challenging but is well explained in General Crane Inc. v. McNeal, 744 So. 2d 1-62 (Fla 4th DCA 1999).

There are important implications of the determination of "employee" status. A significant benefit employers enjoy from Chapter 440 is the "exclusiveness of liability" found in section 440.11. That shield against non-workers' compensation liability also "extend(s) as well to each employee of the employer." Thus a worker injured on the job will most often be limited to recovering workers' compensation benefits from her/his employer. The worker will not, in most circumstances, be allowed to file a civil claim for damages against the employer or any of her/his coworkers. The "borrowed employee" foundation is found in section 440.11(2).

When a worker is injured on the job, there is the potential for debate, therefore:

1. Was the worker an employee?
2. If the worker was an employee, who is the employer?
3. If the injury was caused by some other person, is that person a co-employee?

The two related bills with implications for determinations of employee status are House Bill 579 "HB579," and Senate Bill 882 "SB882."

Each would create section 448.111 in Chapter 448 General Labor Regulations. The two bills have very similar descriptions of "actions" that one might take in a workplace, particularly as regards actions toward workers. Each says that someone taking those actions

"may not be the basis for determining whether an engaged individual is an employee or an independent contractor or whether an entity is the joint employer of an engaged individual"

The goal seems to be having everyone on a worksite focused upon health and safety for all, without fear that helping someone might later result in some implied employer/employee relationship. This preclusion is applicable

"if such actions were taken during a public health emergency declared pursuant to s. 381.00315 or a state of emergency declared pursuant to s. 252.36:" (Senate), or

"if taken during a public health emergency or other state of emergency declared by the Governor under s. 252.36." (House).

Thus, some distinction remains as to when exactly this would apply. However, each seems focused on the protection of workers during exceptional times of urgency (as we near the end, hopefully, of this pandemic). There are other differences between the two bills. Foremost perhaps is that SB882 provides that preclusion "in a civil proceeding," while HB579 specifically focuses upon

"a civil cause of action brought under s. 440.10, s. 440.192, s. 440.38, s. 440.381, s. 448.103, s. 448.110, s. 448.25, chapter 532, or s. 717.115, or in a civil cause of action, as provided for under general law"

In those situations, the two bills prohibit the following actions from being "the basis for determining whether an engaged individual is an employee or an independent contractor":

(a) Providing financial assistance to engaged individuals who are unable to work because of health or safety concerns; (Senate)

(a) Providing financial assistance to previously engaged individuals who are unable to work because of health and safety concerns. (House; the distinction being "engaged" versus "previously engaged").

(b) Directly providing benefits related to the health and safety of engaged individuals, including, but not limited to, medical or cleaning supplies, personal protective equipment, health checkups, or medical testing; 36 (Senate).

(b) Directly providing benefits that are related to the health and safety of engaged individuals, including medical or cleaning supplies, personal protective equipment, health checks, or medical testing. (House; the distinctions being broader language in the Senate "but not limited to," and verbiage: Senate - "related to," House - "that are related to").

(c) Providing training or information related to the health or safety of engaged individuals or the public; or (Senate and House identical).

(d) Taking any action intended to protect public health and safety, including, but not limited to, actions required or suggested by federal, state, or local law. (Senate)

(d) Taking any action, including action required or suggested by any federal, state, or local law, ordinance, order, or directive that is intended to protect public health and safety. (House -very similar language, though expressed slightly differently.

The legislative session convened on March 2, 2021. The process for bills is usually assignment to committee(s) for consideration and to afford opportunities for the public to comment and discuss. If the two bills move forward towards the floor or each respective chamber, there will likely be effort(s) to conform the two sets of language and eventually, they would each be identical. This is generally accomplished in the committee process with amendments proposed to one or both until each has the same language. In the (hopefully) waning days of this pandemic, however, it is difficult to enter the capitol. Committee meetings can be attended virtually, and anyone can express their views on proposed legislation in ways other than appearing at a committee meeting. 

If passed, the effect appears to be encouragement to all involved in a workplace to assist with the needs, protection, and safety of workers in the event of emergent or urgent circumstances such as the COVID-19 pandemic in the midst of which we find ourselves.

Those who wish to remain updated regarding legislative activity should visit the Legislature's websites:

https://www.myfloridahouse.gov/

https://www.flsenate.gov/

Each site has a tool (House "tracking" and Senate "tracker") that afford the opportunity to register for periodic email updates on legislation throughout the session. It is a simple and free tool to remain abreast of the progress of legislation in which one may be interested.

Statutory Interpretation Illustration

The Florida First District recently rendered Mobley v. Fussell, 1D19-4286, regarding the intriguing topic of whether a court clerk might charge someone for copies of public records. Please do not tune out just yet, as the analysis delves far deeper than the seeming banality of copy costs, and is actually a somewhat intriguing and educational expose of the process of statutory analysis.

As an aside, this matter came to the Court as a "mandamus petition." Mandamus is one of the extraordinary writs that are exceptions to the general rule that appellate courts address allegations of error most often following the rendition of a final adjudication by a trial court. These have been discussed in this blog before, see A Law Student and a Series of Dumb Mistakes (2018). Mandamus is a vehicle through which one asks the appellate court to tell the trial court or other official to do something particular.

In this instance, the Mandamus was filed by a pro se person (acting without an attorney), Vincent Mobley. That is not uncommon in the realm of litigation. What some might find interesting in that regard, however, is that this individual pursued his complaint without counsel, against the state, and prevailed. The First District granted the Writ of Mandamus and Mr. Mobley will be provided copies of certain documents free of charge. It is common to hear that people cannot hope to prevail without counsel in today's world of legal intricacies, but Mr. Mobley proved them wrong. 

The process began when he sought those records from the Duval County Clerk of Courts. The documents he wanted were "of his (previous) judgment and sentence." The Clerk received his request and conditioned fulfillment upon his payment of copy costs. That is not uncommon in the world of litigation. There are a variety of sources that maintain records one might wish to review (medical facilities, doctors, government, etc.) and copying requires human time to research, locate, retrieve, duplicate, and deliver. Even in a digital paradigm, there can be significant work involved. In HB1147 and the Electronic Medical Record, the efficiencies of a digital world were discussed. Another point of view was later added to that post for consideration.

In Mobley, the Court brings focus to the method for interpreting statutes, and to the potential for conflict among the various (there are 5) Florida District Courts.

The statute at issue in Mobley has nothing to do with workers' compensation. But, all of workers' compensation in Florida is statutory, and thus statutory interpretation is integral to it. Further, Mobley provides a concise explanation. The statute interpreted is section 940.04, Florida Statutes (2019). It provides for free copies of criminal records for "any applicant for executive clemency . . . required to supply a certified copy of the applicant’s information, indictment, judgment, or sentence." The statute specifically says that when such document(s) is needed by an applicant for this specific relief, the Clerk of Court is to provide it "to the applicant free of charge and without delay." Here, the legislature has provided a specific exception for a particular population of customers. 

The Court explained that there is a "trigger" for the Clerk's responsibility, that "the requesting party must be 'an applicant for executive clemency' and the requested copies must be for records 'required' for the clemency application." Mr. Mobley made such a request and was declined. 

The Court concluded that which records are required for executive clemency are delineated in section 940.03, Florida Statutes (2019). This includes an application and "may require . . . a certified copy of the applicant’s indictment or information, the judgment adjudicating the applicant to be guilty, and the sentence, if sentence has been imposed . . . ." Thus, by statute, a "may," not a "shall." Therefore, the Court turned next to Florida Rule of Executive Clemency 6(B), and concluded that rule formalizes the this and requires ("shall") attachment of "a certified copy of the charging instrument. . . and a certified copy of the judgment and sentence for each felony conviction, or misdemeanor conviction if seeking a pardon for a misdemeanor." The rule essentially builds a requirement ("shall") onto the statutory foundation that allows it ("may"). 

Thus, the Court concluded, that "the plain language of the clemency rule and sections 940.03 and 940.04" renders those document copies “required.” Therefore, the copies should seemingly be provided by the Clerk without charge. However, the Court concluded that the "thornier" issue is what constitutes "'an applicant for executive clemency." That is, "must a person have already completed the clemency application?" And, if so, "may the clerk request a copy of the application (as proof) before producing the requested records?" Or, may someone merely allege they are in the midst of such an application?

The Court noted that it had "previously . . . resolved the question in an unelaborated decision." (Citation omitted). It is not uncommon for appellate courts to effect an outcome in a case without an extensive written opinion and explanation. In that previous decision, the Court concluded that a request might be deficient if it failed to make specific allegations. However, relying upon two decisions in the Third District and the Second Circuit, the Court there described a "'chicken/egg' dilemma." 

It concluded that the certified copies are required to complete an application, and thus it is illogical that an an applicant must present the "completed copy of the clemency application before producing the certified copies." The Court noted a contrary result had been reached by the Fifth District Court. In effect, you cannot complete the application without the records sought and you in this instance Mobley could not get the records sought without a complete application. It is possible, the Court concedes, to interpret the statute in a manner that could potentially preclude anyone from ever exercising the legislature's grant of free court records. 

Therefore, the Court concluded, "that under section 940.04, a person requesting certified copies of records required for a clemency application need only attest that he is applying or has applied for clemency." That allegation is sufficient "to qualify as an 'applicant' and trigger the clerk of court’s duty." Note that the Court did say "attest," rather than merely "allege." Therefore it may not be sufficient for someone to present at a clerk's office and merely say "I need copies for a clemency application." However, whether some signed statement ("attestation") is required by the various clerks will be seen in time. 

Thus, the Court granted Mandamus and ordered the Clerk to provide the copies to Mr. Mobley as requested. He prevailed of his own accord against the State, demonstrating that a pro se litigant can in fact do so. Some will question why one might go to such lengths (appeals can be expensive) rather than simply paying the costs to copy the records, and there is merit in that question. However, there is also merit in standing up for one's rights for both the personal and societal benefits (all those who come after Mobley seeking their rights).

Finally, this case illustrates the process when District Courts do not agree with each other on an issue of law. Here, the First District agreed with the Third and Second Districts. But, it noted the Fifth District has rendered a contrary analysis. Thus, the law is effectively different in various parts of Florida. Therefore the First District also "certif(ied) conflict with that decision" of the Fifth District. This is a formal method of advising the Florida Supreme Court that this difference exists. With such notice, the Court can now decide whether to review this group of cases to bring its statewide clarity and consistency to the legal interpretation.

An interesting analysis, and an educational expose of interpretation, application, and resolution of intra-District conflict. A worthy read for anyone attempting a statutory interpretation, which is often the task in the workers' compensation community. 

The New Florida Rules of General Practice

The Florida Supreme Court adopted significant changes to the Florida Rules of Judicial Administration by order entered January 21, 2021. The changes are effective March 1, 2021. One important change is the title of these rules, They will henceforth be referred to as the “Florida Rules of General Practice and Judicial Administration,” or the “Fla. R. Gen. Prac. & Jud. Admin.” The Court explained that "this change is intended to clarify to Bar members that this chapter of rules is relevant not only to judges." Experience supports that a great many Florida attorneys practice blissfully unaware of these particular rules and the overarching impact they have on issues including calculation of time, schedule conflicts, and more.

The Florida Rules of General Practice and Judicial Administration do not apply to the Florida Office of Judges of Compensation Claims in any general sense. As important as their provisions are to the day-to-day practice of Florida litigators, their impact in workers' compensation is limited. The Fla. R. Gen. Prac. & Jud. Admin. are applicable by their very specific terms "to administrative matters in all courts to which the rules are applicable by their terms." Rule 2.110, Fla. R. Gen. Prac. & Jud. Admin. That reference is not to "administrative law" matters, but rather the broader issue of administration of the courts as in managerial or organizational regulation.

The processes and procedures before the Judges of Compensation Claims are instead governed by statute (notably, among others, by Chapters 440, 112, and 90) and the Rules of Procedure for Workers' Compensation Adjudications, Chapter 60Q-6, Florida Administrative Code. The OJCC is an executive branch office with quasi-judicial authority and responsibility, but it is not a "court." It has never been a court, and the Florida Supreme Court has never had appropriate authority to make rules for this agency, see Amendments to the Fla. Rules of Workers' Comp. Procedure, 891 So. 2d 474, 475 (Fla. 2004).

That the Court cannot impose rules on the OJCC is not conclusory, however. There is no prohibition on the OJCC incorporating Court rules in the Rules of Procedure for Workers' Compensation Adjudications. Those incorporate various Rules of Civil Procedure as regards discovery. And, the Fla. R. Gen. Prac. & Jud. Admin. Rule 2.330 provisions regarding disqualification of trial judges are similarly incorporated in Rule 60Q6.126 ("Any motion for disqualification of a judge shall be made and determined pursuant to Fla. R. Jud. Admin. 2.330.").

Therefore, for the workers' compensation community, the recent Supreme Court decision will be of interest. Beyond changing the name of these Court rules, the decision makes "numerous changes . . . to rule 2.330 (Disqualification of Trial Judges)." The Court explains these changes in detail, as follows.

The changes to "subdivision (a), Application," are not of significant import to judges of compensation claims. However, in the event that disqualification is sought as regards an appellate judge reviewing a workers' compensation case, this clarification is notable. The provisions do not apply to appellate judges. Notably, the title of this section remains unchanged: "Disqualification of Trial Judges." By implication, it would certainly have been logical to discern the section previously had a consistent specific application, but the amendment removes any lingering doubt.

The changes to subdivision (c) are certainly significant. The contents of the motion required specificity and detail to "allege specifically the facts and reasons." That requirement remains. However, the Court has added a requirement that may aid the determination of whether such a motion is timely. The new rule requires the filer to “identify the precise date when the facts constituting the grounds for the motion were discovered.” Thus, when were the circumstances underlying the disqualification known to the filing party? This specificity requirement may bring additional clarity to such a motion.

Furthermore, the amendments to subdivision (c) provide clarity to the process. Added to the requirement that the motion be "sworn" is a new alternative that it may instead be "affirmed."

The Court characterizes other changes as "organizational." In one, it takes two subjects previously addressed and separates them into two newly labeled paragraphs (c)(5) and (d). Paragraph (c)(5) is the requirement that in addition to the party's oath or affirmation in the motion, the attorney must separately provide "certification . . . that the motion and the client’s statements are made in good faith." Paragraph (d) is the requirement that the filing party shall serve the motion upon the judge. This is more pertinent to civil proceedings where there is a greater separation between a Clerk of Courts (where filing is done) and the judge. In workers' compensation, with the electronic filing capabilities and requirements, communication of the motion to the assigned judge is rapid and consistent with the communication of all filings. 

The Court describes changes effected by the addition of the new paragraph (e) as delineating "the nonexclusive grounds upon which a motion to disqualify may be raised." There may be multiple reasons raised in such a motion, and this "require(s) the inclusion in the motion of 'all specific and material facts upon which the judge's impartiality might reasonably be questioned.'” This, like the date of knowledge discussion above, is an enhancement to the requirement of specificity.

A "new subdivision (f)" is directed at "creation of grounds." This new section precludes the filing of a disqualification motion when the only foundation therefore is the appearance of new counsel on a case. Thus, if a case is proceeding before a particular judge ("A") and new co-counsel (perhaps the judge's spouse or child) is associated in the case, it would be inappropriate to then file for the judge's disqualification based upon that new conflict.

The Rule clarifies that such a conflict might still be an appropriate grounds if there were a later change in presiding judge. That is, if the case is proceeding before Judge "B," and the child or spouse of Judge "A" is then associated as co-counsel. If later, the case is reassigned (perhaps Judge "B" retires, is reassigned to some other duty, etc.) to Judge "A," then that relationship between a co-counsel and Judge "A" would remain a valid grounds for such a motion.

A significant change in the rule is effected by the amendment to "Time," which "is now designated subdivision (g)." The party is now entitled to "twenty days," perhaps more permissive; however, it is possible that the rule may now be seen as more restrictive. The rule previously stated only that the motion must be within "10 days after discovery of the facts constituting the grounds." The amendment provides clarity as to "whose" discovery or knowledge, specifying "discovery of the relevant facts by either the party or the party's counsel, whichever is earlier." Thus, the knowledge of each is effectively imputed to the other.

The "Determination — Initial Motion" is relabeled paragraph (h). This section previously explained that in adjudicating the motion the judge would "determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged " The substantive change in this section is the addition of a corollary statement regarding the granting of such a motion. It is consistent with the admonition that the judge does not address the "truth of the facts alleged," and states "a determination that a motion to disqualify is legally sufficient 'does not constitute an acknowledgment that the allegations are true.'” This is clarifying, and consistent with the rule generally.

The final change of particular interest regards the reconsideration of prior trial court rulings. This blog has previously addressed the situation When there is a different Judge (2018). The effect of rulings made by a judge who is later disqualified is discussed in If it is Moot, What Does it Matter? (2018).

Essentially, the Rule provided in subdivision (h) that prior rulings by a judge later disqualified could be reconsidered following reassignment. The amendments to the rule do not change that, although this subdivision is now "redesignated (j)." Further, the time allowed to make such a motion regarding prior determinations is expanded to "thirty, rather than twenty, days of the order of disqualification."

There is import and pertinence to the changes in Rule 2.330. Arguably, the rule itself is of perhaps little significance to most attorneys. In the course of practice over a decade, I do not recall ever filing a motion to disqualify a judge. I can recall various instances that would have been meritorious grounds for such a motion but do not recall ever doing so. In conversations over the last twenty years with many attorneys, I have been told a great many of them have likewise never filed such a motion. 

Therefore, in an immediate sense, these changes are perhaps of only passing interest. However, the diligent attorney will make a mental note that the process and requirements are different. Should the need arise for such a motion, the diligent attorney will always be best served by a habit of consulting the applicable rule(s). That they read this post will perhaps encourage such a consultation at that time, as she/he recalls that there have been changes worthy of consideration in this regard. 

Numerous changes are adopted to rule 2.330 (Disqualification of Trial Judges).

First, subdivision (a), Application, is amended to clarify to which judges this rule applies by adding the text “when acting alone as the sole judicial officer in a trial or appellate proceeding.” In addition, a new sentence is added to clarify to whom the rule does not apply.

With respect to subdivision (c), Motion, the more substantial change is the addition to the second numbered paragraph that the motion “identify the precise date when the facts constituting the grounds for the motion were discovered.” The remainder of the amendments are organizational.

Subdivision (d), Grounds, is redesignated (e), and (d) is retitled “Service.”

New subdivision (e), Grounds, is amended to clarify the nonexclusive grounds upon which a motion to disqualify may be raised, and to require the inclusion in the motion of “all specific and material facts upon which the judge's impartiality might reasonably be questioned.”

Next, new subdivision (f), Prohibition Against Creation of Grounds for Disqualification Based Upon Appearance of Substitute or Additional Counsel, is amended in order to eliminate the ability of manipulation by practitioners who create grounds for disqualification through the appearance of substitute or additional counsel. Thus, the provision as amended provides that with the addition of new substitute counsel or additional counsel that that party is prohibited from filing a motion for disqualification based on the new attorney's involvement in the case.

Former subdivision (e), Time, is now designated subdivision (g). The time period within which to file a motion to disqualify after discovery of the facts giving rise to the motion is amended from ten to twenty days. Further, the rule is amended to provide for measuring that time from discovery of the relevant facts by either the party or the party's counsel, whichever is earlier.

Former subdivision (f), Determination — Initial Motion, is redesignated (h). An internal cross-reference is corrected and new language clarifies that a determination that a motion to disqualify is legally sufficient “does not constitute acknowledgment that the allegations are true.”

The remaining subdivisions are redesignated (i)-(l) and the amendments thereto are largely technical. In addition, former subdivision (h), Prior Rulings, now subdivision (j), is amended to require that a motion to reconsider prior rulings by a successor judge must be filed within thirty, rather than twenty, days of the order of disqualification. And former subdivision (i), Judge's Initiative, is now (k), and is retitled “Recusal Upon Judge's Initiative.”

In re Amendments to Fla. Rules of Judicial Admin.-2020 Regular-Cycle Report, No. SC20-165, 2021 WL 208450, at *2 (Fla. Jan. 21, 2021)

Numerous changes are adopted to rule 2.330 (Disqualification of Trial Judges).

First, subdivision (a), Application, is amended to clarify to which judges this rule applies by adding the text “when acting alone as the sole judicial officer in a trial or appellate proceeding.” In addition, a new sentence is added to clarify to whom the rule does not apply.

With respect to subdivision (c), Motion, the more substantial change is the addition to the second numbered paragraph that the motion “identify the precise date when the facts constituting the grounds for the motion were discovered.” The remainder of the amendments are organizational.

Subdivision (d), Grounds, is redesignated (e), and (d) is retitled “Service.”

New subdivision (e), Grounds, is amended to clarify the nonexclusive grounds upon which a motion to disqualify may be raised, and to require the inclusion in the motion of “all specific and material facts upon which the judge's impartiality might reasonably be questioned.”

Next, new subdivision (f), Prohibition Against Creation of Grounds for Disqualification Based Upon Appearance of Substitute or Additional Counsel, is amended in order to eliminate the ability of manipulation by practitioners who create grounds for disqualification through the appearance of substitute or additional counsel. Thus, the provision as amended provides that with the addition of new substitute counsel or additional counsel that that party is prohibited from filing a motion for disqualification based on the new attorney's involvement in the case.

Former subdivision (e), Time, is now designated subdivision (g). The time period within which to file a motion to disqualify after discovery of the facts giving rise to the motion is amended from ten to twenty days. Further, the rule is amended to provide for measuring that time from discovery of the relevant facts by either the party or the party's counsel, whichever is earlier.

Former subdivision (f), Determination — Initial Motion, is redesignated (h). An internal cross-reference is corrected and new language clarifies that a determination that a motion to disqualify is legally sufficient “does not constitute acknowledgment that the allegations are true.”

The remaining subdivisions are redesignated (i)-(l) and the amendments thereto are largely technical. In addition, former subdivision (h), Prior Rulings, now subdivision (j), is amended to require that a motion to reconsider prior rulings by a successor judge must be filed within thirty, rather than twenty, days of the order of disqualification. And former subdivision (i), Judge's Initiative, is now (k), and is retitled “Recusal Upon Judge's Initiative.”

In re Amendments to Fla. Rules of Judicial Admin.-2020 Regular-Cycle Report, No. SC20-165, 2021 WL 208450, at *2 (Fla. Jan. 21, 2021)

Pertinence in Discovery

Discovery can be a tricky subject, even for experienced attorneys. The conduct of discovery in Florida "court" proceedings is governed by various subject-matter-specific rules adopted by the Florida Supreme Court. The OJCC is not a "court" and the Supreme Court does not make rules for workers' compensation proceedings, see Discovery in Workers' Compensation (2019)

That can be confusing. There are periodic questions about why discovery works the way it does (or more often why it does not work the way someone wants it to). A focus of Discovery in Workers' Compensation (2019) is why interrogatories are not allowed as a mode of discovery in those cases. The answer is reasonably simple to state: "because the rules don't allow them." The reason for this "because I'm the mom and I said so" answer is likely deeper, but it is the answer one needs.

When discovery is instigated, the parameters are in Rule 60Q6.114, Rules of Procedure for Workers' Compensation Adjudications. This rule defines timing ("prior to or after invoking the jurisdiction of the judge,") 60Q6.114(1)), and delineates the various available forms:

Interactive testimony under oath (a "deposition" - Rule 60Q6.114(2)(a))

A party is asked to send documents or things to another party (a "request to produce" - Rule 60Q6.114(2)).

A non-party is asked to send documents to a party (a "subpoena" - Rule 60Q6.114(2)).

Rule 60Q6.114 also includes authority for "responses and objections" regarding discovery (Rule 60Q6.114(4) as well as the authority of a judge to sort through both a party's effort to obtain discovery and any objections to discovery (Rule 60Q6.114(5)). And, the Rules of Procedure for Workers' Compensation Adjudications incorporates the Court rules in various specific instances: "as provided in the Florida Rules of Civil Procedure."

There are constraints on evidence that parties should consider. One is relevance; see Interesting Discovery Dispute in the News (2014); Relevance and Perspective (2018); The Opportunity to Be Heard (2017); and, How Do You Litigate (2013). Relevance is important.

Relevance returned to mind recently when I ran across a Motion to Compel. The issue in that case regarded the production of documents filed by one party. The opposing party failed (or declined) to file any response or objection to the motion. Thus, the Judge was presented with one side of a story and whatever contest that one side conveyed. In a motion hearing once, a party argued to me that the other side's "motion only tells their side of the story." That is what motions do, they tell one side. If the other party(ies) has a side, it is their obligation to file a response and tell it. 

I have seen many such instances in decades of litigation. Frequently, such a request for relief (essentially, a motion is a request by a party for some relief from the tribunal through the entry of an order, see Rule 60Q6.115(1)) results in the granting of whatever is requested. There is a school of thought that if there were some good reason not to grant the relief then the Judge should hear from the opposing party(ies) in the case as to what that reason is. Absent such objection, an order is entered granting relief.

That did not occur in the present instance. In this case, the Judge instead reviewed the request for the production of documents, for which the motion had been filed to compel compliance. The Judge found the requests were not appropriate, noting:

"it is unfortunate that both claimants and E/Cs (employer/carriers) use preprogrammed in computers requests to produce."

The judge reminded of the importance of pertinence, not relevance. The rules allow the discovery of evidence that is not necessarily relevant itself, but which may reasonably lead to the discovery of admissible (relevant) evidence. But, as regards pertinence, the judge noted that standard ("lead to discoverable evidence").

The Judge concluded:

"these generic requests to produce, by both sides, lead to unnecessary litigation and judicial intervention, time consuming and leading to the resolution of the important issues in the case."

The Judge went on to describe the pending claims in the case, and he characterized them as "medical benefits only." He then described the request to produce as "extensive" and inclusive of items that "have absolutely no bearing on the (medical) issues being litigated." He concluded by denying the Motion to Compel, except as regarded the document requests notably related to the pending medical issues, that is the pertinent requests.

There is perhaps an illustration here of repetition for repetition's sake. It is perhaps simpler in each case to send out the "form" requests than it is to sit down and think about the actual issues for a few minutes? In the 2007 Transformers, the protagonist is asked "is it fear or courage that compels you?" And, in that context, one might similarly ask is it efficiency or laziness that drives such discovery? Is the client benefited because he/she/it is not charged for the request since it is merely a rote printing of a form document that takes only seconds? Or, is the client charged as if legal work were thoughtfully performed?

Certainly, it might be more efficient to send the same request for production in every case. That is, more efficient for the party sending the discovery. But, correspondingly, that might be far less efficient for the party responding in that case. In this, one might conclude that efficiency could be perceived as "zero-sum gain." Those are instances in which the amount one loses is always equal to the amount someone else gains." That is, when one enjoys efficiency or convenience, it is at direct detriment to another. It may be easy for one side to merely print the same old exhaustive list of requested documents in each case, but that may create extensive and useless effort for the other party. 

The purpose of discovery is to enlighten the parties to litigation upon the pending issues, and various elements of evidence relevant to, or pertinent to, those issues. When it devolves into the rote and unthinking propounding of extensive and irrelevant inquiries, followed by objections, motions, responses, orders, and even hearings, it is neither efficient, effective, or appropriate. Is your discovery pertinent to the pending claims? Can you enunciate how your requests are "reasonably calculated to lead to the discovery of admissible evidence?" Or, are you or your staff just generating habitual form pleadings? 

Is there reason, logic, intellect involved or merely rote habit? Are you practicing law or clicking "print?" Is rote habit and repetition the practice of professionals? Would the potential for some manner of sanction decrease the perceived unthinking routine and return the focus to pertinence and relevance? Should it require some sanction for lawyers to sit down and actually perform the tasks for which they are billing their clients? Are you a professional or merely an automaton that unthinkingly follows a set routine or program acting, reacting, and acting again without consideration, intellect, and judgment?

If you are not a professional, is there a path back to that role?

Collections Efforts for Medical Care

On February 12, 2021, the Eleventh Circuit Court of Appeals rendered an affirmance in Kottler v. Gulf Coast Collection Bureau, Inc., No. 20-12239; D.C. Docket No. 0:19-cv-61190-BB. The underlying case was filed in the U.S. District Court for the Southern District of Florida. That tribunal entered a summary judgment in favor of the plaintiff, and the collection bureau sought review.

The plaintiff, Ms. Kottler was injured when shelves fell upon her in February 2018, according to the initial petition filed in the workers' compensation case, 18-005010. As is typical in a work accident, medical care was provided to Ms. Kottler. The statutory framework for Florida workers' compensation medical care has changed various times over the last 86 years, but the general premise remains that medical care is the employer's responsibility. 

For whatever reason, some portion of the bills for Ms. Kottler's medical care were not timely paid. One of the medical care providers referred the balance due to Gulf Coast Collection Bureau, Inc. There was no dispute that Gulf Coast then sent Ms. Kottler a letter regarding the debt and its efforts to collect the money. According to the Court:

"Gulf Coast demanded that Kottler pay her medical bills, but in Florida an 'employee is not liable for payment for medical treatment or services provided,' Fla. Stat. § 440.13(13)(g), and '[a] health care provider may not collect or receive a fee from an injured employee,' id. § 440.13(13)(a). Instead, '[s]uch providers have recourse against the employer or carrier for payment for [medical] services rendered . . . .' Id."

This prohibition on collection actions against injured workers was not in the 1935 statute but has been integral to the Florida Workers' Compensation Law for decades. 

In 1983, the legislature made its first effort regarding the protection of employees in this regard, adding to section 440.13(3):

"The healthcare provider or health care facility providing services pursuant to this section shall be paid for the services solely by the employer or its insurance carrier, except for payments from third parties who have been determined to be liable for such payment."

In 1990, the Legislature added clarifying language to this:

"Subject to the provisions of paragraph (2)(d), the employee is not liable for payment for treatment or services provided pursuant to this section."

Thus for at least thirty years (1990) and arguably longer (1983), the injured worker in a Florida workers' compensation case is not liable for the cost of medical care provided under the workers' compensation law. 

Despite this long-standing prohibition, it has not been uncommon for injured workers to receive such billing. There are a multitude of reasons. First, it must be remembered that human beings are imperfect and make errors. Second, there are likely many injured workers who neither (1) know of this prohibition, nor (2) are comfortable reacting to such a billing to inform a medical provider. Third, the collection efforts regarding such bills are more likely to be pursued by an agent of the medical practice than by the medical practice itself, and the agent's information may be less than ideal. 

The Court in Kottler explained that the Fair Debt Collections Practices Act (FDCPA) does not allow a "debt collector" to make “false representation(s) of the character, amount, or legal status of any debt.” The definition of "false," should one escape our collective agreement is "if an unsophisticated or naïve consumer would be deceived by the statement of the debt collector." The collector may be required to pay damages for improper or untoward collection efforts even if it can demonstrate its actions (the "violation(s)") "are not knowing or intentional.” 

As explained by the Court in Kottler, Gulf Coast sent Kottler "a validation notice" regarding charges for medical care related to her work accident. Gulf Coast thus sought to characterize this letter in an attempt to "verify, not to collect a debt." However, the Court noted that "undisputed evidence established" this was "a dunning letter." It stated the “account . . . had been listed for collection,” and that “[t]his is an attempt to collect a debt." The Court concluded that this "validation" unequivocally "conveyed that Kottler was responsible for and overdue in paying outstanding medical bills." The Court concluded:

"Any consumer in Florida unfamiliar with its worker’s compensation laws who received the letter Kottler received would be misled to think that she was obligated to remit payment for medical bills that were owed by her employer."

Second, Gulf Coast argued that the letter it sent was "attributable to a bona fide error," and thus should therefore be insufficient to render it liable (the lack of intent, a simple mistake). The Court explained this is "a bona fide error defense." To avoid liability on this basis, the debt collector must demonstrate the mistake “occurred despite the maintenance of procedures reasonably adapted to avoid any such error.” That is collector procedures, not the referring medical provider's procedures. 

The Court explained that a debt collector must 

“'actually employ[] or implement[] . . . procedures to avoid errors,' and then ensure those procedures were 'reasonably adapted to avoid the specific error at issue.'” 

It concluded that Gulf Coast's were not "reasonably tailored to identify a debt covered by the worker’s compensation law." Instead, the collector merely "relied on its clients to provide data that identified possible worker’s compensation coverage." The evidence supported that "Gulf Coast used no additional screening procedures to detect if a debt was subject to worker’s compensation." Thus, it inappropriately "relegated “its oversight task to its creditor[s]” and "was not entitled to avoid liability for a bona fide error."

Finally, Gulf Coast argued, "that Kottler suffered no concrete injury to give her standing to sue." The Court explained that "injury in fact" is required for standing, consisting of four elements: (1) "the injury must invade a legally protected interest and be (2) concrete, (3) particularized, and (4) imminent." Thus, the allegations of false statements in the letter and phone calls, Ms. Kottler's testimony regarding her reactions to these communications, and her resulting fears, were collectively sufficient to afford her standing under the applicable requirements. Stated differently, "Kottler was entitled to avoid communication concerning (debt) collection . . . she expended time addressing unwarranted collection calls . . ., and those calls upset her."

As an aside, the Court addressed the process of summary judgment. The process for this tool is set forth in the various rules of court and may differ from jurisdiction to jurisdiction. Recently, the Florida Supreme Court announced that the Florida process will soon (perhaps in May or June) be interpreted more similarly to the process in federal courts. The Eleventh Circuit's explanation of summary judgment is therefore of pertinence to Floridians, as the state transitions to the analysis explained. 

The Kottler Court explained summary judgment:

"is appropriate when there exists no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a)."

It affirmed the conclusion of the District Court granting summary judgment in favor of Ms. Kottler. The reader should take from this:

(1) injured workers should not be subject to collection efforts regarding treatment for workers' compensation injuries.

(2) whether such billing is or is not appropriate may depend upon whether a claimed injury is or is not deemed compensable.

(3) those who collect such debts should take independent steps to verify whether billed treatment was for such a compensable workers' compensation injury. 

Preposterous or Incoherent

An intriguing decision was rendered by the New Jersey Superior Court Appellate Decision in October 2020: Anesthesia Associates v. Weinstein Supply, A-5033-18T4 and A-5718-18T4. The case consolidates for appeal two decisions of New Jersey workers' compensation judges regarding jurisdiction over medical billing disputes. It is intriguing for its analysis of jurisdiction, its reliance upon secondary authority, and for its defense of workers' compensation judges.

A side element of intrigue in many workers' compensation opinions is the volume of abbreviation engaged by the court; this is a great example. Essentially, the Court said:

the WCA is interpreted as regards the jurisdiction over AAM and SJC MPCs. There is involvement of the PABWC, as well as the PDOLI in one case and WCBNY in the other. Each  MPC was instigated by an MPAP under the WCA.

The opinion explains each of these abbreviations (many do not). However, the use of abbreviations may nonetheless be confusing or even confounding. We are periodically reminded that there is a language of workers' compensation, which we should strive to avoid for the benefit of those who visit this topic area. 

In each of the two cases, an individual injured elsewhere (Pennsylvania and New York) received a minimal volume of medical service in New Jersey. The New Jersey medical providers (Anesthesia Associates - AAM and Surgicare of Jersey City - SJC) received reimbursement through those other jurisdictions: PDOLI (Pennsylvania Department of Labor and Industry) and WCBNY (Workers' Compensation Board of New York). Dissatisfied with the reimbursement, each filed a Medical Provider Claim (MPC) under the New Jersey Workers' Compensation Act (WCA) by submitting a Medical Provider Application for Payment (MPAP).

In neither instance had the injured worker invoked the jurisdiction of the New Jersey Division of Workers' Compensation by filing a claim. However, the medical providers contended that the Division nonetheless had subject matter jurisdiction independent of such a worker-filed claim. These medical providers essentially argued that the Medical Provider Claim is a "separate cause of action," which is "rooted in breach of contract" and subject to the jurisdiction of New Jersey's Division. 

In the Anesthesia Associates claim, the Court noted that payment had been made pursuant to the Pennsylvania fee schedule, and the provider was seeking greater reimbursement in New Jersey. Notably, states continue to engage various methods for constraining medical costs, the court noted that "New Jersey bases payment on the 'usual and customary charges'" rather than a fixed fee schedule. Thus, it is practical to conclude that these providers envisioned greater reimbursement under New Jersey law. 

A worthy discussion point as regards the Medical Provider Application for Payment (MPAP) forms is language pre-printed upon them. These forms state that: 

"the Employee sustained an injury by an accident arising out of and in the course of his/her employment with Respondent, [that was] compensable under [the WCA]."

Thus, the allegations include contention by the party seeking relief that there is, or could be, a New Jersey workers' compensation claim as regards that particular worker. One might wonder whether the filing of such a form in the absence of a worker-filed claim, or at least the opportunity for one, would amount to a misrepresentation of fact?

The jurisdictional issue in these two cases was one of "connection between New Jersey and the injured employee(s)." Clearly, the medical care providers had ties to, were located in, New Jersey. However, that was not the critical question. Rather than relying upon analysis of the New Jersey law, the Court instead turned to a secondary authority known in the workers' compensation community: Larsons. It explained that this author's "proper jurisdictional analysis" had been adopted by the New Jersey Supreme Court in 2003. Rather than rely upon the Court, this opinion quotes the secondary authority, which is curious. The Court concluded that the trial judges had properly engaged that six-element test in their conclusions that New Jersey lacked jurisdiction.  

In the second claim, the medical provider alleged that, absent jurisdiction in New Jersey, it was "left without any forum to recover." Reaching back literally to the birth of our nation (the Constitution was ratified in June 1788), Surgicare asserted that Marbury v. Madison, 5 U.S. 137 (1803) compelled New Jersey to find jurisdiction to cure this alleged absence of any forum. That analysis does contain many references to jurisdiction but is most famous for its holding regarding judicial review and the role of the U.S. Supreme Court. 

The New Jersey Court was unpersuaded by Marbury, however. It noted that New Jersey's declining jurisdiction did not leave Surgicenter without recourse entirely, but merely relegated it to the forum offered by the state of New York. Despite Surgicenter being dissatisfied by the outcome of proceeding in New York, that is application of the New York reimbursement constraints, the sound conclusion was that New York indeed offered a forum. 

The Superior Court Appellate Decision affirmed both trial judge's declining of jurisdiction regarding these reimbursement disputes. 

The Superior Court also noted that the disappointed medical providers' appellate statements were less than complimentary of the trial judges in these cases. One described the trial judge's decision as "an 'extraordinarily brazen, unsupportable misuse of authority.'" The other described the "decision in its case [w]as 'incoherent,' and 'preposterous.'"

The Court addressed these comments and accusations. It found those statements to be "pejorative attacks on the judges" and "to be totally unwarranted and disrespectful." The Court noted that 

"the  judges of the court of compensation, like other judges, are dedicated public servants who strive each day to properly assess the cases before them after giving due regard to the facts and the applicable law."

This judicial effort most often results, according to the Court, "legally correct decisions." It admitted that there are times when "lawyers and appellate courts might disagree with them, or they might have made a mistake." However, even such error "does not render their thoughtful consideration of the case to be in any manner an abuse of their power, preposterous(,) or incoherent." The Court admonished the medical providers warning "such characterizations do little to advance a client's position and unjustifiably undermines the public's confidence in the judiciary."

Litigants in all forums, regardless of the law being argued, might be well advised to remember that.

Vaccination Tribulation

For whatever reason, there are a fair number of people who have little interest in a vaccine for SARS-CoV-2/COVID-19. I have spoken to some who are ambivalent and others who are fearful. I heard from one who is beyond those, expressing downright opposition to vaccination, and not just personally. That individual feels that vaccines should be avoided societally. These conversations have reminded me that "people are different," as Florida Georgia Line reminded with their 2019 release. 

There are interesting observations about vaccines, their efficacy, and herd immunity in the recent post Vaccinations Implications (2021). That post also discusses the perceptions of some in the medical community regarding the SARS-CoV-2 vaccine. Suffice it to say that there is not 100% acceptance even among that population. Significant numbers of medical professionals have either declined the vaccination or are delaying their own inoculation for the time being. What do we lay-people conclude from their reticence or delay?

May we assume that everyone recognizes the benefits of vaccination? No, we may not. May we assume that everyone concedes that there are at least some benefit to vaccination? No, we may not. May we assume that on any topic in America today we can find both ardent proponents and violent opposition? Well, that seems reasonably likely lately. I had one person express surprise at my openness to vaccines, and was asked "don't you remember Thalidomide?" That seems a bit over-the-top. Perhaps there are some topics upon which we might unanimously agree as a society, but I am not sure what the topics would be. 

It is not just an American conflict, this vaccine. The British Broadcasting Corporation (BBC) reports that in Australia there are protests about the vaccine even before its distribution has begun. Pfizer's vaccine is set for immediate delivery, and the "Oxford" vaccine (AstraZeneca) is expected to be delivered within weeks. Protest participants chanted privacy-referenced slogans such as "my body, my choice." Their reticence is curious, as the Australian plan provides free inoculation, but is said to be entirely voluntary. One strives to understand how such a plan violates anyone's personal freedom or privacy.

So, there are some folks who are unwilling to accept the vaccine, at this time. 

But, there are various reports of others who are very eager to obtain an injection (or two). In Polk County Florida, the winner of "Paramedic of the Year" was arrested for stealing the vaccine. That story makes references to "falsified" documents, and others who may have been aware of, or involved in, the diversion of vaccines. CBS News reports that a Fire Captain in Polk County was also arrested in that investigation.

CNN reported recently about a vehicle theft at the "Strawberry Festival Grounds in Plant City (Florida)." There were vials of the vaccine in the car (which was reportedly left unattended and running; side note, not a wise maneuver). The reports are not clear regarding whether the intended target was a vaccine or merely the car. KTLA reported the vaccine was worth approximately $10,000.

The Tallahassee Democrat reported theft of the vaccine from Florida State Hospital in Chattahoochee. That theft was of two vials, also reportedly worth about $10,000.

There have been reports of people selling fake vaccine in Washington, Mexico, China, and even the otherwise pristine bastion of truth and integrity, social media. When we cannot trust Facebook, where are we as a society?

WLKY in Louisville reported recently on a "substantial lack of morality" as noted by the Clark County Health Department as Indiana transitioned to a new phase of vaccine eligibility based on age. The Health Department says "People are lying about their residence, about their job location or duties, and about their age as they hand us their driver’s license." It continues that "some have been turned away. Some have been caught only after sending their less-able-to-lie-convincingly co-workers to the site after they were successful."

Remember when people lied about their age for such mundane and banal reasons as obtaining alcohol?

In California, it was lying teachers. In Canada, it was "wealthy people." Elsewhere, it was allegedly "rich, white New Yorkers." National Public Radio suggests that the absence of immediate "universal access" to the vaccines places people "in the position where they are encountering moral dilemmas." NPR concludes that the whole process "can all seem pretty unfair." Why is it that only rich people get Ferraris and Lamborghinis? I have always wanted one, and that I don't have one seems "pretty unfair" sometimes. 

Back in third grade, I remember Mrs. Hutchinson telling us all that she perceived we generally live in circumstances that are less than fair. She suggested that we get used to it. Maybe it is a good thing that the world is finally now evolving to a place of undeniable human equity and egalitarianism? Perhaps all human suffering and injustice will fade to the annals of history as we enter the new age of utopia? Or, is Bill Gates correct (whether he said it or not) in echoing Mrs. Hutchinson: "get used to it?" An intriguing suggestion from Travis Bradberry is that perhaps recitations on fairness say more of the speaker than of the fairness.

"Everyone knows that life isn't fair. Saying it's not fair suggests that you think life is supposed to be fair, which makes you look immature and naïve."

However, my favorite news story on theft comes from Florida. NPR reports that two women in Florida posed as "grannies" in order to obtain the vaccine. They allegedly wore "the bonnets, the gloves, the glasses, the whole thing." Their actual ages were allegedly 34 and 44. One official quoted in the story lamented that this is not exceptional, with an official noting: "some people could squeeze in, so it's (deception) probably higher than we suspect."

Florida sometimes makes international news. This "grannies" story has. It has been featured in India, the United Kingdom, and Canada. Some outlets quoted claims that this disguise scheme was the same as having "stolen a vaccine."

Thus, we find ourselves in an intriguing dichotomy. A great many people who are entitled to the vaccine are not taking the opportunity for whatever reason. A fair few others who are not entitled to the vaccine are striving through imagination, obfuscation, and even criminality to obtain it. Seemingly, some stand on the deck of the Titanic denying and others are dressing as old ladies to sneak into the lifeboats. It is an interesting time, this utopia in which we live. 

Where would you come down? If you are eligible, will you line up? If the random chance arises, as it reportedly did in early January for two in Washington, would you take the shot? Suddenly, the eligibility in Miami changed yesterday with the announcement of availability for those 55 years old (instead of 65), if the person suffers from one of thirteen medical diagnoses (with a note from your doctor). If you had such a condition, would you jump at this new chance?

If through some happenstance you have the opportunity, how will you react? These are interesting times. Many are pent-up, frustrated, and scared. But, taking a COVID-19 vaccine at this time necessarily means one of your neighbors may go without. How are we equipped for this moral dilemma? Can we individually, collectively, and societally do what is "fair?" Or, will each of us act in our own best interest? As the song reminds us, "People are Different," maybe we just have to accept that in our new, utopian, even brave world? Things simply become curiouser and curiouser.