A Decade

This blog has covered many topics. From opioids to constitutional challenges; from attorney ethics to cybersecurity; from California to Massachusetts; from the Hot Seat to SAWCA; from conferences in Florida, Pennsylvania, Tennessee, West Virginia, Kentucky, Texas, California, Mississippi, Georgia, Virginia, and more. There has been discussion of positive aspects of workers' compensation, challenges, victories, and shortcomings. Undoubtedly, at some point, someone has likely felt criticized or faulted, though I have striven mightily to avoid that. On occasion, a critic or two has made their ire known.

On March 12, 2012, the first Workers' Compensation blog ran on this space. That day began an odyssey, and the post was titled Changes at the OJCC for Fiscal Year 2013 (In Florida, our fiscal year begins July 1). I find myself today a decade older. In all, a total of just under 1,400 posts now litter this little corner of the Internet. Recently, the schedule has been three posts per week, but over the decade it averages to about 2.7. Perhaps one or two have helped someone better understand the law, the role of judges, the professionalism of attorneys, the challenges of medicine, the community of workers' compensation, and perhaps more.

Since I began in this space, I have seen these posts re-posted on sites like WorkersCompensation.com, WorkCompCentral, Comp and Benefits Today, The Florida Bar Workers' Compensation Section, and various law firms, associations, and other websites. Many have been republished in newsletters like the NAWCJ Lex and Verum, which I started for judges in 2009 and edited for over 100 monthly editions over almost a decade. I have never turned down a republication request, and am grateful to have seen these thoughts on those larger platforms. I have forayed periodically onto other platforms in parallel, including articles in The News and 440 Report, The Lex and Verum, and various other journals and magazines. I have written many pieces, made many grammatical errors, and even printed a couple of explanations, but no retractions (see above re ire).

In the decade since 2012, I have been humbled by the overall response to these pages. It is impractical to authenticate how many discrete views or reads these posts have attracted, but calculating conservatively, there have been at least 2.4 million views, and it is likely just over 3 million. The conservative 2.4 million equates to about 1,700 views per post. I strive to ignore the statistics, ignore what topics draw views, avoid clickbait titles, and work to remain true to writing about what I find interesting or informative for this workers' compensation community. In fairness, I primarily write for myself. Despite that, I am pleased when I find others viewing these posts. 

I am comfortable that I am likely less successful as regards statistics than the best major league batters. The best batters in the history of that game struck out more than 60% of the time. In the back of my head as I write this is Lloyd Benson's voice reminding me "Dave" (I never knew Senator Benson, but Dan Quayle always called me "Dave," You can Call me Dave, July 2021), but I digress . . . "Dave, I played with Ty Cobb. I knew Ty Cobb. Ty Cobb was a friend of mine. Dave, you're no Ty Cobb." And, Senator Benson would be right, I am no Ty Cobb. But, perhaps, I occasionally catch the corner of one and eek out a stand-up double on these pages or elsewhere?

It is rare anymore for me to meet someone who does not comment upon some posting here. People have opinions, questions, and comments. Sometimes they are complimentary of these pages, sometimes not so much. One favorite comment came from a Kansas attorney of significant repute who said "I always enjoy reading your blog . . . (long pause) don't always agree with it, but always enjoy reading it." That is fair. It illustrates that perhaps these pages generate comprehension, discussion, and even disagreement. I am persistently surprised that people seem to think disagreement is a bad thing. It is not. I enjoy debate and discussion. My favorite public interactions are with people who hold different views and are willing to say so. 

If you are one of my readers (if you aren't congratulations on receiving this message through other means), I appreciate the time you spend reading these posts. I really appreciate the comments on LinkedIn, the emails, the phone calls, and the personal comments. I hope that this last decade of work has been of value. I am very grateful for the critics, criticisms, compliments, and suggestions. I value those criticisms more highly than you might expect. 

Since 2015, I have averaged three posts per week. There are those of you who express wonder at that volume. I have never been as prolific as the "real" bloggers. David DePaolo one year posted every workday, over 250 posts. Bob Wilson similarly seems to never lack for inspiration and subject matter. Mark Walls has a knack for spotting the essence of any program or presentation and distilling them with an apparent ease. This community has many great writers. They inspired me to try my hand at this a decade ago and to persevere since. Despite perhaps not matching their volume, I am proud of the content here. 

Perhaps one day, after the world has circled the sun several more times, someone will return to these pages after I have moved on and happen upon the perspectives of "that guy that was the deputy chief judge back then." Perhaps there will be some nugget in these ramblings that stands the test of time, or perhaps they will universally be mounds of digital detritus. Either way, I have enjoyed penning them and have grown through the challenges and experience. 

My apologies for the introspection and your likely boredom by this point of the post. I think we all benefit from our own periodic retrospection. Today, I bring nothing new to the table, but merely take stock in the last decade of posts and reflect. I appreciate your patience with my pause and invite your thoughts and criticisms. 

Happy Anniversary

The World is coming along towards a non-COVID-19 comportment. I struggle at times to remember that people around the country continue to struggle through quarantine, isolation, masking, and more. This was brought into stark relief in January when I attended a conference in South Florida. One of the organizers lamented to me in a somewhat exasperated tone: "Florida won't even let us ask if people are vaccinated, we cannot even enforce masking." I replied cordially, "yes." What was surprising and frustrating to this person was, frankly, normal to me. 

Florida got back to business a long time ago. There was a recent gathering of physicians who voiced their thoughts on what we have been through, see Governor DeSantis Closes the Curtain on COVID Theater, republished on the OJCC Regulatory blog. These experts made some interesting points on science, cancel culture, mandates, vaccinations, and more. It is an intriguing read. 

It is somewhat hard to believe that we mark the cotton anniversary of SARS-CoV-2 and COVID-19. For some reason, the Little River Band keeps flashing before my eyes ("Carry on, don't feel concerned," Happy Anniversary, 1977), but I digress. The traditional first-anniversary gift is paper (masks), and the second is cotton (masks). The third year is leather, and that won't make for a decent mask, and neither will fruits and flowers in year four. This pandemic thing needs to end now. 

I remember so vividly in January 2020 when I began warning my college students about the potential for a viral challenge. They rolled their eyes when I put up a PowerPoint slide about Corona beer and the "coronavirus" that January. I thought we had a threat coming, and tried to acclimate them to it. Though I saw it coming early, I admittedly underestimated its impact. It was March 11, 2020, when the Florida State University System transitioned to remote learning. Instructors were cautioned that changes would likely remain "in effect for at least the two weeks following Spring Break and probably through the end of the semester." O.K., I was not the only one that underestimated this thing. 

My first COVID-19 post was on March 10, 2020, on the Announcement Blog, Coronavirus COVID-19. It reminded of the virus that by then was in the news, the procedural rules, the potential for telephonic appearance, and more. Our focus then, and throughout, was to keep the practice functional. On March 14, 2020, I took the unprecedented step of ordering all mediations to telephonic process. There were complaints. I was told we had overreacted. On March 21, 2020, we introduced people to the various video platforms on the Internet and persevered to keep responding to the challenges that this SARS-CoV-2 brought, as well as the challenges caused by reactions to it.  

We were striving to get through what we thought would be a brief and intense situation. We began to hear what this or that local government, school board, or similar thought about locking down, masks, isolation, and more. On March 23, 2020, I reminded the public and the OJCC that the local government had no authority to compel state agencies' processes in our operations. The OJCC is an important state agency and delivers a very critical service to tens of thousands of injured workers and businesses every year. I kept reminding myself that the public needed us to be functional, but let's face it we all benefitted from our determination to be here for you.

Thereafter, the telephonic mediation process was extended more than once. A March 24, 2020 Announcement was amended to keep up with what still looked like a very temporary situation. The month-by-month in that announcement illustrates our hope for resolution of the situation. The Workers' Comp Section was proactive on professionalism about that same time, and with great effect. We republished the Chair's entreaty for compassion and found it compelling. I look back with great pride on how this community pulled together through the worst of times. We adjusted, we persevered, and we never gave up. Much, even most, of the success is on the great lawyers, paralegals, doctors, adjusters, and nurses, that just kept striving to make this system work.

In May we mandated masks in the OJCC offices, and unbeknownst to many, various businesses, organizations, and agencies devolved to fully remote operations. The telephonic mediation mandate expired by June 1, 2020, and yet many parties and lawyers continued to request telephonic attendance. In response to overwhelming volumes of requests for telephonic, and the impact on mediator workload, I reinstituted that mandate on July 1, 2020. It was extended monthly thereafter until March 26, 2021. It is notable that public sentiment and customer service were the primary drivers of the extension from July 2020 through March 2021. As we mark the two-year anniversary of the virus, it is also coincidentally the one-year anniversary of our return to normal operations. 

In the meantime, Florida had moved forward. The Plan for Florida's Recovery was phased in starting in May 2020, with further implementation in June and September. Things began to return to normal in Florida. By October of 2020, I was back to live public appearances. See We're Back! (October 2020). I spoke at a program in Tampa in December 2020, and then at the Workers' Compensation Forum in April 2021, see We're Really Back! (April 2021). By then, I was celebrating the end of masks (the first end) in A Great Hamburger with a Smile (April 2021). The joy of dining out without paternalism and constraints was palpable. 

At the Forum in 2021 I was regaled with tails of how happy and healthy folks had exerted power and influence to cut in the vaccination lines before their turn. Those who celebrated this had seemingly no concern for whose dose they might have taken. It is intriguing in retrospect that there was a time when people sought the vaccine and feared they would be left out. That turned out to be a non-issue, as the vaccine availability was never really a problem. Interestingly, instead, we would come to struggle to get everyone to accept it. I thought it was miraculous, and welcomed it. However, I also respect people who do not wish to have it. See Vaccine Tribulation (February 2021). 

And despite having no vaccination personally in April 2021, I proudly and happily strode the halls of the ChampionsGate Omni maskless. It was great to meet and greet so many that day. There were a few that were reticent. There were requirements and mandates of the hotel. But, in reality, it was very open and social. Some lawyers openly mocked the sanitization efforts. Since then, I have remained free of masks except when visiting authoritarian states and traveling by air. I have never been a big fan of masks, but I wear them when required or requested. In reality, a big part of the mask phenomenon is about doing something that makes other people around you feel better. In that regard, perhaps we really are doing it for others?

Despite not liking them, I do not in any way condone the public's reactions against employees who strive to enforce their employer's or other's mask and other mandates. See Violence in the Workplace (August 2021). I have lamented that behavior and applauded the many who have said to me things like "I won't follow their (airline's) rules, so I just drive." That is fair. Businesses have every right, it seems, to issue mandates. We all have the choice to purchase there or forego it. Some cases are now beginning to reach the bench, and it is possible that the Americans with Disabilities Act and other legalities regarding discrimination may impact that in some regard one day, but not as yet. Legal processes will likely never move with the rapidity of virus spread. 

The overarching point is, it has been a long 24 months. I see recently that the rest of the world is finally awakening from its long slumber of COVID, and I struggle a bit to appreciate the horrible impacts this has had on people, emotionally, economically, socially, and more. I have been so fortunate to have lived through this pandemic. I predicted in April 2020 that we would all likely be connected to someone who would be profoundly affected by the virus. Six Degrees of COVID-19 (April 2020). I said then we were all likely profoundly affected, and on that one, I think I was pretty prescient. If you have neither been impacted nor seen someone close to you impacted, you are indeed fortunate. Way too many of us have lost friends, family, and professional associates to this virus.  

Recently, the Prime Minister of the United Kingdom was making news. The Independent reported that Boris Johnson will "will . . . repeal . . . all of England’s pandemic regulations." The Standard reported that this will "allow Britons to return to normal life." This will "make the UK one of the first countries in the world to formally end all Covid (sic) curbs – despite a backlash from scientists fearful of the emergence of new variants." While that may well be an accurate description of countries, I cannot help but think the UK is largely following Florida's lead. 

Just days before, CNN announced that California would "unveil a plan" that would bring "a specific focus on learning to live with the coronavirus." The Governor there calls this "the ‘SMARTER’ plan," because two years into this pandemic he believes Californians are smarter than when it began. California, it seems, is poised to "treat Covid-19 like any other virus." Gone will be the "state’s (mask) mandate(s)" and it is "transition(ing) to the endemic phase.” California, it seems is ready to transition from being "among the most strict states in imposing Covid-19 health mandates," and get on with the future. Reading that article, I cannot help thinking that in short, California is transitioning to being more like Florida. They can package it and spin it, but that is essentially where they seem headed.

And, I find myself wondering about the months and months of strict constraints and lockdowns across the country and the tribulations through which people have suffered. I mark today the cotton anniversary of this thing's impact on our lives and hope that the progress toward normalcy continues. I am grateful that I have lived through this pandemic in Florida where a great deal of normalcy has prevailed throughout. I am immensely proud of the OJCC team that persevered through it with you. I am encouraged that more of the world is seemingly coming around to the conclusion that an endemic SARS-CoV-2 is now a part of our world and that we must find ways to live with it.  

In that, we must remain conscious that this vicious little virus has been very damaging to life and livelihood. A great many have been infected, affected, and impacted. I reiterated the "six degrees" suggestion that you will undoubtedly know people who have lost someone to this virus, lost livelihood, lost hope. I encourage us, as the world returns to full function, to remember that in our interactions. From the virus or government reactions, people will undoubtedly remain at risk, fragile, and even frayed. As a community, however, we will persevere through. As individuals, we can and should remain respectful of those around us and the losses that they have sustained. 

And, perhaps this will be the last of my COVID-19-related posts. We have a great deal to work on otherwise. Workers' compensation goes on, and deserves our attention and effort.

"Happy anniversary baby, Got you on my mind."

And now, here's something we hope you'll really like.

In the old days, and I mean old days, us kids lacked social media and video games. Evenings were devoted to homework, followed by reasonably predictable television fare with such staples as Gunsmoke, Andy Griffith, and even Candid Camera. Saturday mornings, the three (yes three) television stations catered to kids, and we watched largely mindless fare from Scooby Doo Where are You, Hanna Barbera's The Jetsons and The Flintstones, and of course the Rocky and Bullwinkle show. Mindless patter? perhaps. Many of our juvenile consumption patterns were tied to which cereal had the most appealing (or in retrospect appalling) advertisements. We were actually influenced by "cookoo for Coco Puffs," celebrity endorsements, and even product placements."  

Among the morning cartoons, perhaps the best writing belongs to Rocky and Bullwinkle, in which a hapless Moose (Bullwinkle) and a flying squirrel (Rocky) repeatedly save the world from the evil conspiracies of Boris Badenov and Natasha Fatale (they certainly sounded like soviet or at least eastern block names back in that Cold War). Were we subtly prejudiced against our cold war adversaries by this writing and the characterizations of Boris? Of course, good always prevailed, And, week after week they reappeared, as periodically noted by the writers in a nod to the invincibility of "Moose and Squirrel":

Natasha: "Boris, is Moose you said you killed in previous episode?"

Boris: "Look, it's his show. If he wants to be hard to kill, let him."

Throughout, the show, and particularly its narration, the writers wove a complex and intriguing dialogue. Much or even most of the the wit and witticisms were likely lost on us hapless juvenile viewers, but it included some really snappy repartee. Periodically, the far more intellectual Rocky would transition us through the next segue. Two of my favorites were his "And now, here's something we hope you'll really like" and "And now, here to tell you everything about anything is Mr. Know-It-All." Ironic, iconic, hapless, hopeless, and yet entertaining on multiple levels.

Channeling Rocky this morning "And now, here's something we hope you'll really like."

Entrepreneur reported recently that Amazon Opens Revolutionary Whole Foods. The store is a first or sorts; it is a "register-free shopping" experience. Robotics are not new to these pages. See Robot in the News (October 2021) and Robotics and Innovation Back in the News (September 2016). I have been a tech follower for many years, and was really awakened to the coming technological revolution in 2015 at the annual NCCI Issue Symposium in Orlando. See A Lifechanging Seminar (May 2015). I have returned to technology with posts like A Button Labelled Codger Mode (June 2017), Running Man from Pensacola (July 2015), and The Coming Automation (November 2017). So, no surprise that the new and improved grocery has opened. 

This new innovation store is in Washington D.C. and is equipped with what has been dubbed the "Just Walk Out system." According to Entrepreneur, you merely "load (your) . . . carts and leave." There is no cashier and no self-service scanning station. In fairness, this is not such a new idea. The story reports some smaller convenience store-sized outlets began using this technology in 2016, as does an Amazon-labelled grocery store that opened in 2021. But, it is the first of its size in the Whole Foods company. 

With a combination of sensors and cameras, this new technology keeps track of what is being placed into your shopping cart. It is technology not unlike self-driving car technology and requires the use of an application and QR code or card reader that identifies the customer at the outset of a shopping venture, tracks him/her through the shopping experience, and assesses the charges at the conclusion. The prediction is that this type of process is the wave of our future, the next step in our progression "from the Flintstones to the Jetsons," which one of the JCCs often uses to describe the workers' compensation litigation transition from stone tablets to electronic filing in the first twenty years of this century. 

This progress is inherently relevant to the world of workers' compensation. For years, I have been warning that the very foundations of the world of work are shifting, and this illustrates again precisely that premonition. The job title "cashier" may disappear from our lexicon entirely. We may strive to make our grandchildren understand the concept of a human scanning bar codes on packages. If we succeed with their understanding of bar codes, we might next try to explain that cashiers used to push down mechanical buttons and hit a mechanical "enter" bar with the side of their hand in order to tabulate the cost of purchases. We have come a long way since those days, only 50 years ago or less.  

Entrepreneur says that this transition to "cashier-less" will eliminate "more than 3 million" jobs in this country alone. And, the article warns us that as jobs evaporate, so does the foundation for "a functioning society." I tried to make that point in Universal Income a Reality Coming? (November 2016). In fairness, no experiment in universal income has succeeded long, nor demonstrated viability as a broad-spectrum societal paradigm. Let's remember that jobs matter, engagement matters, and people matter. This is true economically and socially. One wonders if such a shopping experience will catch on. 

As I came to grips with the progress regarding cashier-less stores, I ran across an article on Business Insider regarding a man's contention that Facebook (n\k\a Meta) cost him "his company and $100 million." The story is not about robots, but about software that may encourage and even manipulate us. The entrepreneur featured in this article says that the extent to which social media algorithms influenced his business "Sends chills down (his) . . . spine," and that business should beware in a broad perspective. 

In fairness, the story suggests that the success of this business was largely due to Facebook algorithms, and their ability to draw people to his web presence. The company foundation was "women-focused" and featured "uplifting content," on a website. The Facebook mathematics drove "90% of organic traffic" that came to that site; 90% of this small business' web traffic was generated by the background functionality of Facebook's algorithms steering people to the "fluffy content" that was produced and provided by this small business. 

The company owner featured in the Business Insider story explained that Facebook became disenchanted with the "fluffy content" and changed the mathematics or algorithm. This change in 2018 "upended the digital news world at large," and "throttled" the traffic to his site. The algorithms began instead to "promote posts that it thought people would engage with the most," with a goal of keeping people on Facebook longer, possibly to increase exposure to advertisements, and to increase "clicks?" The description of growth and then starvation at the hands of the same source, Facebook algorithms, reminded me of the idiom "the Lord giveth and the Lord taketh away," or perhaps Meta does in this context?

The featured company owner also asserts that the algorithm also "began to promote" "violent, false, and divisive content." The contention is that the algorithm and its ability to steer or influence our attention essentially determines what we do or do not read on the web. He explains that the Facebook engagement can thus be a double-edged blade, that the algorithm can bring millions of eyes to a product, site, or service (or opinion), but may as quickly shift attention elsewhere. The story is an intriguing expose of allegations of the manner in which computer programs may entice or discourage our consumption, whether for goods, news, or entertainment. 

And, it is alleged that our proclivities and tendencies are driving some of the decisions. We may be "more apt to click on and engage with sensationalistic and divisive content," which may drive more content creators to produce such content, and more algorithms to drive that content. This will perhaps draw, engage, and retain viewers, to the delight of some advertisers and producers and the consternation of others. Remember, this entrepreneur was not critical of the algorithm process when it was drawing eyes to the "fluffy content," and only became critical of the process when it drew eyes elsewhere. 

It is not so different. perhaps. from the evil plot of Fearless Leader in the live action and animation mixture of The Adventures of Rocky and Bullwinkle (Universal Pictures, 2000). Fearless Leader, for whom Boris and Natasha work, contrives to control people's minds through television. The plot is directed at controlling our desires, and tricking us into behavior. However, Leader's evil plot fails when he cannot control our hero, Bullwinkle. Alas, Bullwinkle's brain is essentially too small to control. But, apparently, some of us are influenced by television ads, even if the purveyor is not some evil genius bent on world domination. 

We might well wish to hear at this point from Mr. Know It All, and an explanation of how we might avoid the mind control or influencing of algorithms and computer programs. We might want to understand how our interaction with our computers are being monitored and even possibly manipulated. As we stride forward into the tomorrow of increasingly technological lives, to what extent are our free will and autonomy real? Perhaps we will all enjoy a cashier-less world, shopping without that pesky human interaction ("Did you find everything you were looking for today")? Or, possibly, some of us will long for the sentimentality of human interaction and content.

In the end, perhaps our emotions remain free of the influence of some algorithm, instruction, or suggestion, and we will ultimately decide for ourselves whether we shop in the newfangled, robotized store of tomorrow (today?) or the old-fashioned, human interaction store of yesterday's nostalgia. We may be influenced by the "progress," or the sentiment, but more likely by the price. In that regard, perhaps we are likely to select the store we find most time-efficient and cost-efficient for our personal preferences. Or, perhaps we will go where the algorithms of social media and television steer us? It is, simply stated, an interesting time in which we live. 

Notice, Due Process, Stare Decisis

California has an interesting process for its courts. Enshrined in the procedural court rules is Rule 8.1115(a) regarding precedent and stare decisis. The Common Law tradition upon which our American legal system is founded relies heavily upon stare decisis, which is merely deciding questions in litigation today consistently with prior decisions. There is a predictability and stability in the dispute process that comes from reliance upon how courts have determined similar questions previously.

Many court decisions in California are not precedent, a conclusions with which some struggle. They are decisions that cannot be cited or relied upon by parties in arguing for or against a similar outcome in their own present disputes. A recent decision of the Third District Court in a California workers' compensation case included a reminder of California's prohibition on stability and predictability:

"California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115."

In such a decision, a court is resolving some issue(s) for the parties to that particular case, but delivering no real edification to the public or to practitioners that may face some similar dispute in their future. The logic of such limitation and constraint admittedly eludes me. I find it antithetical to the foundations of our common law system and frustrating to the predictability of stare decisis. 

In California Correctional Peace Officers Association Benefit Trust Fund v. Workers' Compensation Appeals Board, C093293, January 5, 2022, the Court's opinion was nonetheless instructive on several points. It reminds of the lien system in California, of the challenges of jurisdiction, of the importance of following instructions, and of the imposition of sanctions.

The facts are reasonably straightforward. The Benefit Trust Fund paid an injured worker certain benefits and filed a lien in the workers' compensation proceeding. Essentially, it was contending that it owed benefits but that workers' compensation should be deemed the primary payer and thus the Fund should recover some of its outlay from any workers' compensation benefits eventually ordered. Interestingly, the Fund was not represented by counsel, but by a statutorily recognized "representative." That is an intriguing distinction from the Florida litigation process. In Florida, only attorneys may represent others in workers' compensation proceedings.

The injured worker in that case was troubled that the Fund sought reimbursement, and later sought sanctions against the Fund regarding its behavior in the litigation. In response, the Fund then dismissed or withdrew the lien, and in its opinion thereby deprived the Board of jurisdiction over the complaints regarding its behavior. In that allegation, there is a similarity to the Florida system in which jurisdiction is invoked by filing a petition for benefits. Thereafter, an injured worker may largely deprive the Office of Judges of Compensation Claims by dismissing that petition. See Polston v. Hurricane Island Outward Bound, 920 So. 2d 766 (Fla. Dist. Ct. App. 2006).

The Appeals Board in California thereafter convened multiple (4) hearings to consider the claim for sanctions, but the Fund representative did not present for any of them. The representative even wrote to the Board to explain that the Fund would not attend as it was no longer a party to the case, due to the dismissal. Thus, despite being ordered to attend, the Fund elected not to do so. The Board "ultimately affirmed the denial of costs and sanctions," but it awarded "$3,280 in attorney fees against" the Fund and the representative "for the failure to appear at the four hearings." This was calculated based on the 8.2 hours of the injured workers' attorney's time at $400 per hour.

The Fund then sought appellate review and alleged that it was deprived of due process by the imposition of attorney fees. It complained of the method in which proceedings were held telephonically and of how the notice was provided for telephonic participation. Notably, the call-in information for the first hearing was admittedly not included in the original notice of hearing. However, the Board noted that was true for various cases in the early days of the COVID-19 pandemic. Despite those numbers not being included in the notice:

"somehow, every other single participant, for every other hearing, was able to locate the number through the DIR Newsline releases, the DIR website, calling any WCAB office, or lastly, contacting the actual WCAB office where the trial was scheduled."

Certainly, as the pandemic changed processes and procedures, anyone might have struggled to adapt their practice. However, the Court opinion recognizes the parties' obligations, through various means, to remain engaged in proceedings even in the midst of a pandemic (note the Board 4 times to convene proceedings). 

Rather than presuming that all proceedings would be suspended due to the pandemic, the Court suggested "One would think a simple inquiry would certainly have been prudent." In terms of due process, the Court concluded that notice of trial was sufficient. Although the attendance later evolved to telephonic, notice was notice. The general public announcement that all hearings would be telephonic was sufficient, particularly "In light of the considerable pressures placed on courts and administrative bodies caused by the COVID-19 pandemic."

Regarding the alleged evaporation or dissipation of jurisdiction upon dismissal of the lien, the Court conceded that a "General rule" supports that dismissal will deprive an adjudicative body of "jurisdiction to conduct any further proceedings as to him." Similar to Polston in Florida. However, this is not true of the jurisdiction to either award that party attorney fees or to award attorney fees against that party as regards the proceedings in that matter. To conclude otherwise, the Court explained, the dismissal could potentially be "used as a shield for a party acting in bad faith."

The decision is instructive and provides clarification. Notice is notice, and parties must thereafter make efforts to engage and adapt even as methodologies may change. Notice by public announcement may be sufficient in some circumstances, and counsel or representatives would be well served to diligently seek information and clarification. Dismissal is jurisdictional, but not in certain situations such as ordering fees related to the pre-dismissal activities. When ordered to attend a hearing, make an appearance. When objecting to jurisdiction, writing the tribunal a letter is unlikely to serve. So many interesting and useful points in the Third District's opinion. 

None of them, however, might have been argued as controlling in some future situation. In California, the decision of the court controls only the current facts, the current case. There is no application of this decision to future proceedings, in fact, future parties in other cases are prohibited "from citing or relying on" the court's logical and informative decision. It is curious. In a society full of information and data, would not the public's access and resort to such a court decision be positive in any event? If not, what possible harm would result from the people being able to cite and rely on decisions made in their courts?

The Board thought so. It filed a motion with the Court and asked that the opinion be published, and be precedent. Almost a month after deciding the case, WorkCompCentral reported on January 31, 2022, that the Third District had granted the "motion to publish its decision." Therefore, the court's endorsement of actual notice and due diligence, and remote hearings is now subject to citation and argument in other proceedings. Of course, there may remain instances or facts in which a court may conclude otherwise. But, such informative decisions are undoubtedly of great value to those who practice before the California Board, and perhaps those who practice elsewhere. 

A Great Friday in February

The Florida OJCC returned to live programming with its annual free CLE program in Tallahassee on February 25, 2022. The program is co-sponsored by the Workers' Compensation Institute, for which we are grateful. It is always an outstanding day of continuing education, practical tips, and timely information about effective management of workers' compensation generally and the litigation aspects in particular. There is a tradition by which various judges chair the program each year. In the past Judges Humphries, Pitts, Walker, Newman, Anderson, and Lazzara have each taken on that responsibility. There is significant work in identifying program topics and shepherding all the presenters through the accreditation and presenting process. This year, it was Judge Stanton of Gainesville (pictured below) leading the whole program. 

The program included a an hour of effective mediation techniques, which was laced with practical advice on the challenges and benefits of mediation. The OJCC is blessed with a very abled and motivated crew of mediators. There is some tendency to think of adjudications when the OJCC is mentioned, but a great many more cases resolve or progress through the mediation process than through trials or hearings. Mediation came to Florida workers' compensation in a voluntary form in 1989, and became mandatory in the 1994 law. It has been an integral part of our process ever since. This program included (Pictured below, L-R) Dan Gross (PMC), Susan Bisbee (TLH), AnneMarie Kim (ORL), and Bryce Schmidt (GNS). Judge Stanton (GNS) moderated that panel. 

Judge Walker chaired a panel on effective legal writing. While this could have been a program limited to dangling participles, punctuation, and word use, it provided all of that and much more. There were tips and ideas here for the effective presentation of the information necessary for effective preparation of trial memoranda, motions, and more. From the standpoint of better effectiveness and better planning, this hour offered something for everyone involved in the litigation process. It included (Pictured below, L-R) Judges Holley (JAX), Stephenson (WPB), and Walker (PNS).

An appellate practice panel was chaired by Judge Sculco (ORL). There are few cases that ultimately reach the appellate court each year. Out of tens of thousands of petitions filed and hundreds of trials across the state, about 200 cases reach the appellate court. For those who practice appellate law, there is much to learn. But, for everyone in the workers' compensation community, there were practical tips and important information. The methodology with which litigation is managed, evidence is accumulated and introduced, and cases are prepared each have the potential to impact any ultimate appeal. And, more importantly, those points may very well form the foundation that means any particular case will never require such an appeal. The insights of (Pictured L-R) Chief Judge Rowe, Judge Thomas, Nicholas Shannin, Esq., and Judge Sculco provided attendees with valuable advice on the challenges of litigation. 

Judge Grindal moderated a panel on taking effective medical depositions. The vast majority of issues that are intertwined in workers' compensation disputes include some medical evidence. This includes the various foundational facts regarding injury reported, the diagnostic testing, treatment recommendations, and impairment determinations. There is a tremendous volume of medical record review and medical opinion to work through in various disputes. This panel included (pictured L-R) Ryan Knight, Esq., Bryan Greenberg, Esq., Tracey Hyde, Esq., and Judge Grindal.

Judge Newman's panel was first on the program. She and Judges Anthony and Anderson presented the initial hour on the steps for filing, and prevailing on, motions. The community was reminded of the importance of motions and the challenges they present. The topic dovetailed with the panel discussion of effective writing, but also brought an assortment of practical tips involving timing, motion response, and effective argument. There were excellent examples of technique and timing that will be of value to all who work in this community of workers' compensation. Picture below (L-R) are Judges Anthony (TPA), Anderson (DAY), and Newman (TLH).

Judge Moneyham moderated a panel on the practical aspects of technology on the workers' compensation legal process. There were technology descriptions and software tips for the practitioner, paralegal, and adjuster. There are many ways that technology has become intertwined in our world over the last few decades, and we have been witness to many changes and challenges. Unfortunately, I became distracted during this panel and forgot to snap a photo of participants Judge Moneyham (PMC), Judge Sojourner (ORL), Fred Vitale, Esq., William Wieland II, Esq., and Orlando District Staff Jacquelyn Denton.  

The crowds were substantial throughout the day Friday. We had over 120 register for the program, and most sessions were standing room only. The lunchtime conversations and interactions were outstanding (lunches provided by the Workers' Compensation Institute). And, throughout the day, the rotunda of the First District Court was filled with animated small group discussions. The community wanted to be back in a live setting, came out with enthusiasm, and participated as in days of yore. Sure, it was not that long ago that we were oblivious to viruses, but in fact it was only two years. The 2020 OJCC/WCI program proceeded without a hitch in February 2020, just before things, as they say, got weird. We went virtual in 2021, and despite some challenges and my own technology failures, the OJCC team pulled that one off with aplomb. But, it was a great relief to be welcomed back to the Court by Chief Judge Rowe (pictured below). The atmosphere was celebratory and enthusiastic. The material was outstanding. And, we are already planning for the 2023 presentation next February. 

We are well and truly "back to normal" with the winter seminar. Our thanks again to all the presenters, the Workers' Compensation Institute, the Resource Managers Inc. crew that makes it all come together, and the Court of Appeal for being an enthusiastic host, participant, and contributor. We are proud to present the program, and so grateful for those that make it possible. 

Credibility

A recent article in the Washington Post caught my eye, it focuses on the "murky process of judicial bypass" in the realm of abortion. The article is highly critical of the law and those who are charged with interpreting it. Before the reader becomes too distracted, no this is not a column on abortion. However, some pertinent points from the article, from a legal perspective are as follows:

"Doe had testified that she had a B average, but Smith noted that her academic records showed a lower GPA. The inconsistency, he wrote in his decision, suggested 'either a lack of intelligence or credibility.'”

"Making the case for a minor’s maturity is inherently slippery, legal experts say and whether a petitioner can successfully make that argument depends largely on the judge’s discretion and disposition."

"Not all states include criteria for which to judge maturity. Florida does"

"Florida does not establish any rules or guidelines to help judges or attorneys understand the boundaries of judicial bypass for future cases. Rather, the appellate judges seemed to be concerned that the initial judge was 'overly involved' in his questioning."

"The hearings are small affairs and typically go quite fast."

"But that doesn’t mean the process isn’t intimidating for teenagers. It’s not unusual for them to seem 'timid' or 'curt' in their responses."

"the trial judge also referenced her short answers and deference to her lawyer as indicators of her immaturity."

In large measure, one might voice identical or similar conclusions about the workers' compensation benefit litigation process, or any judicial proceeding involving testimony. Cases may turn in large part on the credibility of witnesses, in workers' compensation, often that of the employer or employee. And, without a doubt, conclusions of credibility can be highly subjective and dependent upon the impression a witness makes when testifying. 

That peril is less important perhaps with testimony that has been transcribed, a witness appearing only by deposition, but it remains a peril even there. 

The grade point average example above is a classic example of a factual flaw impacting credibility. Some studies support that eyewitnesses can easily be wrong about various details. Thus, it is not uncommon for a witness to provide testimony about some detail that can be readily contradicted by another witness, some document, or in today's world a short video. See Assume Everyone is Watching (September 2015). Factual contradictions demonstrating one inconsistency may be argued to support a finding that some witness generally lacks candor or credibility. Or, it is possible that the witness merely perceived or recalled some detail mistakenly. 

As regards the judge's discretion, any case may "depend largely" on what evidence the judge allows or does not as various objections are raised. And, it is common for attorneys to either fail or elect not to make some objections. There are challenges with appearing too adversarial, to alienating the court or jury. The abilities of counsel to make objections and to provide lucid and thorough responses may significantly impact what evidence is considered in the end analysis. Relevance and weight of evidence is often subjective and rulings therefore could be difficult to predict in one case or to duplicate in another. Obviously, that may affect the outcome of the particular case. 

The absence of criteria on any topic can be a factor, not merely as to "maturity," as cited in the article. Various cases require findings dictated by the workers' compensation statute, but for which there are similarly no clear-cut criteria. An easy example is what is "for the best interest of the claimant." Another is "as may appear to the judge of compensation claims just and proper." Section 440.16(1)(b)2. These kinds of phrases leave the trial judge with responsibilities, but also to interpret and progress as best one can. With such requirements, but without criteria, the prospect of varying outcomes in various proceedings is perhaps more likely. 

The outcome in the bypass article is also deemed a concern by the author due to the judge being "'overly involved' in his questioning." The Code of Judicial Conduct certainly precludes a judge from becoming partisan, an advocate. Canon 3. But, in a non-adversarial proceeding (no competing parties), a judge may be required by a statute to make determinations such as those in section 440.20(11)(b):

"The judge of compensation claims shall make or cause to be made such investigations as she or he considers necessary"

Thus, despite the Code prohibition on becoming an advocate, a statute may require active judicial participation beyond the usual role of impartial arbiter. In effect, some statutes like this direct the judge to make inquiry in what some could perceive as a partisan, or "involved" manner rather than a purely adjudicative role.

The author of the bypass article finds flaws in the speed with which those hearings proceed ("typically go quite fast") and the fact that such proceedings are nonetheless "intimidating for teenagers." This, it is contended, may lead to a witness' discomfort or disorientation and thus to an appearance of being "'timid' or 'curt' in their responses." Two points may be pertinent.  First, virtually all legal proceedings have the potential to be brief and hurried. Judicial resources and time are persistently limited by the press of a volume of cases. 

Second, the simple fact is that any witness, of any age, may find legal processes alien and intimidating, despite any pace or cadence perceptions. The pressures of mere social situations can lead some to timidity and withdrawal. There is every chance that a legal proceeding will bring perceptions of pressure, discomfort, and even anxiety. Those who serve as advocates are burdened in all litigation striving to develop rapport, ease anxiety, and procure the evidence necessary to prevail. This requires patience, planning, and preparation with each witness. 

The same challenge is presented with the article's reference to a party's or witness' "deference to her lawyer." In the context of the article's topic, these were reportedly seen  "as indicators of" the witness' "immaturity." But, in a larger context, such deference can be viewed as a more simple lack of candor. When a party cannot or will not relate facts without the persistent prompting of an attorney, credibility can be impaired. This is perhaps less true on serial events (a question may be required regarding each medical specialist visited), than on singular events such as a description of the witnesses' workday activities leading to the moment of a workplace injury. The complexity and order of a series of events may challenge the memory, and thus require greater attorney detail, persistence, and guidance. If a witness is challenged, it is best to reveal that at the outset, e.g. "are you nervous today," or "is this your first time in a legal hearing." 

In short, the article points out perceptions of flaws in a specific legal process and the challenges judges face therein. However, such challenges may face the judge in conducting any legal proceeding, and therefore similarly challenge the witness(es) and attorney(s). Those who would represent themselves, or represent others, would do well to consider the potential impacts of testimony, witnesses, and demeanor may have on the progress and outcome of any evidentiary proceeding. Testimony should be carefully prepared and presented with the various potentials for credibility perceptions in mind. 

Shocking Diabetes Findings

The Center for Disease Control (CDC) has been warning of increased rates of diabetes in America for sometime. It refers to this as "prevalence," and in 1958 the "prevalence of diagnosed diabetes" was less than one percent. In 2015, it was 7.40%. One difficult question may be how much has actual prevalence increased, as the use of "diagnosed" suggests that some population may have suffered that disease in silence in the earlier period or even still. So, either diagnosis or the disease itself is notably increasing. This is particularly important because it is a percentage of population, which is also increasing. The raw numbers were 1.6 million in 1958 and 23.4 million in 2015.

That is of concern for a variety of reasons. First, diabetes is potentially debilitating. It is listed "in the Social Security Administration's impairment listing manual," or "Blue Book." The diagnosis alone is not sufficient to be determined disabled, but the results of the disease may rise to that level. Beyond disability, diabetes is expensive. The CDC says that $237 billion is spent annually on "direct medical costs and another $90 billion on reduced productivity." It is, according to the CDC, "the most expensive chronic condition in our nation."

Early in the pandemic, there were many reports of comorbidities that were noted in the delivery of care for those infected by SARS-CoV-2, COVID-19. In August 2020, Role of comorbidities like diabetes on severe acute respiratory syndrome coronavirus-2: A review was published in the Journal of Life Science. This article acknowledged that hypertension, cardiovascular disease, and chronic obstructive pulmonary disease (COPD) were major worries as regards COVID-19.

However, researchers also noted that

"The severity of COVID-19 disease intensifies in patients with elevated glucose level probably via amplified pro-inflammatory cytokine response, poor innate immunity, and downregulated angiotensin-converting enzyme 2."

In short, people with diabetes, particularly those who were not in that moment in control of their blood sugar, faced risk of a more severe bodily reaction to COVID-19. The journal articles were of academic interest to many. In a true "whose ox" or "whose backyard" mindset, I heard one speaker address this threat with simply "so only diabetics would be interested in that." False. I found the speaker's inclination to disinterest quite intriguing.

So, in summary, diabetes or diagnosis of diabetes has been increasing for decades, the disease is notably expensive, and those who have it potentially faced serious challenges from COVID-19.

But, in 2022, surprising news of a corollary nature. The CDC in 2022 published a study in which it monitored "more than half a million children under the age of 18." That is what they call a large study population, see Understanding Study Size. The conclusion in the CDC study is that "children who had COVID were more likely to be diagnosed with diabetes compared to those who have not had it." As yet, there has been no similar corollary regarding "hypertension, cardiovascular disease, and chronic obstructive pulmonary disease." In other words, having hypertension is potentially problematic if you contract COVID-19, but as yet there is no suggestion that if you contract COVID-19 you are more likely to be later diagnosed with hypertension.

In some part, this recent CDC finding regarding increased risk of suffering diabetes is tied in with the concept of the "long COVID." I noted the potential for a regressive impact of COVID-19 in COVID-19 Regressive Impact (May 2020), and further in Always on My Mind (February 2021). I was worried about its potential early and persistently. The idea that SARS-CoV-2 infection could produce lasting effects is absolutely not new. But, the suggestion that such an infection might predispose people, particularly young people, to a life-long disease process like diabetes is an intriguing and somewhat scary discussion.

Worse still, the CDC report documents the potential for an intensive care stay for such children with COVID-19 related to diabetes is also more likely. The treatment of their diabetes, it seems, is more challenging if the diagnosis or onset follows after a COVID-19 infection. From various perspectives, this news is significantly troubling. 

First, the prevalence of infection with the Omicron variant is predicted to lead to the conclusion that "Most Americans eventually will be infected with the virus." That may be the "classic" COVID-19 or the "new" COVID-19 (at whatever point the infection occurs, we may be out of Greek letters by then). Possibly, some variants may produce less severe symptoms and perhaps will be less likely to predispose to diabetes, but the risks remain potentially significant. 

Second, the rates of diabetes are increasing (or the diagnosis is) already. The increase in the volume of patients will drive greater volumes of necessary treatment and therefore expense. Notably, the CDC says that 60% of all diabetic costs are for people "mainly paid by Medicare." Thus, the expense is for us all. It represents a significant public health challenge, rates of diagnosis are increasing, and this pandemic is increasing the chances of the young suffering the disease; a disease they will likely then live with and treat for many years as they age and mature. 

Finally, in the realm of workers' compensation, the CDC study regarding diabetes may suggest a heretofore unpredicted propensity for "long COVID" implications and expense. A result of COVID-19 as a workplace condition may result in a lifetime of treatment and benefits related to diabetes if a scientific cause and effect is demonstrated appropriately. In this regard, it is as important that we are less than two years into this pandemic. So, whether SARS-CoV-2 infection is similarly a cause of other more familiar disease process diagnoses, as is not seemingly suspected. But, it is possible that other diseases will have some tie back to COVID-19 as effects are researched in the coming years of study and research.

At a minimum, there will likely be increasing volumes of diabetic Americans. There will be more American workers suffering from this condition, and the potential that can present for comorbidity with workplace injuries cannot be ignored. Its presence in the workplace, as a potential aggravator of symptomatology for an injured worker, cannot be ignored by those who predict and price risk through workers' compensation insurance premiums. 

So, does COVID-19 damage the pancreas in some manner and "cause" diabetes onset? Is there some underlying genetics that is somehow prone to diabetes and are triggered by the virus or the body's reaction to it? It is an intriguing consideration, added to our already growing list of questions we have about this virus and our futures.

A Judge Inducted to the College

This morning, I write to celebrate Judge Eduardo Almeyda. Next week in New Orleans, the College of Workers' Compensation Lawyers will recognize him by inducting him as a fellow of the College. It is a proud day indeed, for Judge Almeyda and for this Office in which he serves. He joins the ranks of Judges John Lazzara (ret.), Neal Pitts, and Richard Thompson (ret.), along with a great many long-time workers' compensation community attorneys, and legends, like Richard Sicking, Ramon Malca, Dawn Traverso, and more.

Back in the day, the labelling of superlatives was a normal part of the ritual surrounding high school graduation. There were the obvious "most likely to succeed," "friendliest," "class clown," and more. Back in 2011, the National Public Radio published an article criticizing the superlative practice - suggesting that such accolades may put too much pressure on people. I struggle with anyone that says compliments put too much pressure on a person. Compliments and recognitions are a celebration of the human spirit.

At the risk of similarly creating pressure, today I write about Judge Eduardo Almeyda, who has served in the Miami District Office for fifteen years. He started there as a state mediator, and served for six years. In 2013, he was appointed judge of compensation claims. In candor, Judge Almeyda is at times, the "friendliest," or even "the class clown." He brings humor and long experience in the workers' compensation community to the job daily, and does so with an indefatigable spirit and a twinkle in his eye. I have no doubt he will not be burdened by the pressure of his acceptance of this honor. 

His history in this space is indeed extensive. He was a claims adjuster in workers' compensation when he decided to go to law school. He was admitted to the Bar in 1973, and is just shy of earning his 50 year member recognition. Throughout that time, he has focused in the workers' compensation area, while straying at times into other areas such as corporate, aviation, and civil defense work. Over the many years, he has engaged this community, including various lectures on substantive legal topics in workers' compensation and the mediation process. He authored an extensive textbook, THE ADJUSTER’S MANUAL FOR WORKER’S COMPENSATION, which he intended as a roadmap for the difficult and challenging role of a claims professional. I am proud that the College has seen fit to recognize so many of the lawyers who practice workers' compensation in Florida. It is humbling to see so many of them as fellows of this collegial group.

Though I have thus known Judge Almeyda for several years, he is better known to others. In fact, in the course of his practice, he has been directly connected to other luminaries in this community. He practiced law with Judge Charles Hill (ret.), Judge Medina-Shore (MIA), and Judge Iiana Forte (FTL). Over the years, he has been a friend and mentor to many. I asked Judges Forte and Medina-Shore to share some thoughts on Judge Almeyda as we mark his induction.

Judge Forte wrote:

Judge Almeyda was my mentor and a long-time personal friend. Practicing with him was anything but boring. I recall being a young lawyer, going with him to a pretrial hearing (at that time pretrial hearings were live), and him telling me to write down the defense as the “Tuesday” defense. When I asked him what the Tuesday defense was, he replied - well since we don’t have a defense, and the case was denied on Tuesday, that’s the defense. He was especially proud of a button he wore around the office that said “Kiss me I’m Cuban.” He loved boating, but the boat spent more time at the mechanic’s shop than in the water. Above all - he has a huge heart and loves his work. Congratulations Eddie on your induction to the College of Workers’ Compensation Lawyers – you’ve made us all very PROUD!

Judge Medina-Shore wrote:

Prior to joining the law firm of Almeyda & Hill in 1991, I did not have any knowledge or experience in workers’ compensation. My law school did not offer a course in it and my experience was limited to insolvencies.

I had two interviews for the Associate position: the first one with Chick (Charles Hill) and the second one with Ed Almeyda and Iliana Forte. I vividly remember them although many years have passed. The interview with Chick was calm and instructive as to workers’ compensation law. My second interview was at lunch with Ed and Iliana which I felt was a whirlwind. Their thinking and discussion was at warp speed in a language (IMEs, Vocs, etc.) which I did not understand. In between their discussion, Ed would ask me general questions about medicine and the law. I left the interview in a daze and questioning whether I could withstand the training by Ed.

As a new Associate, I looked to Ed for quick answers. After all, I knew he was board certified and he authored a book for proper adjusting of workers compensation cases. On every occasion, Ed would kindly respond that he did not know the answer and suggested I research it. At first I was perplexed how a legal authority like Ed did not know the answers to my simple questions. After a while, I caught on and researched the issues prior to discussing any pending questions with Ed. Ed always had time to discuss the law with me (which I enjoyed) and pushed me to grow as a lawyer.

He introduced me to the workers’ compensation community and taught me that every person has a valuable role to play. He expected all the lawyers in his firm to be professional and have compassion toward other people. On one occasion, Ed and I were taking several depositions in a case going to trial within 2 days. Ed received a phone call that one of our colleague (a claimant’s attorney) was hospitalized due to a heart attack. At a break, we drove straight to the hospital. We couldn’t stay for long but our brief visit lightened our colleague’s day. At that moment, I learned from Ed that while earning a living and being successful at your profession is important, visiting a friend/colleague in need was way more important.

Ed was great in dealing with mistakes. On one occasion, we were going to a doctor’s deposition in downtown Miami. We were walking and I was leading the way. I did not know where I was going and we became very lost. Ed laughed and said that I was walking with such confidence that he had confidence in me!

Lastly, while we worked long hours, like many other firms, Ed fostered a family environment in our firm. We worked together and had fun together. We celebrated our successes as well as shared our disappointments. Without even knowing it (perhaps), Ed helped instill in all of us (Chick, Iliana, Millie Powell-Rodriguez-circuit court judge and I) the love for the workers' compensation law and encouraged attributes so very sought after for the position of a Judge.

Judge Almeyda is indeed fortunate to count such jurists as friends.

I am proud to be in New Orleans next week to celebrate the induction of Judge Eduardo Almeyda. He is a force in the Florida workers' compensation community and has been for over 50 years. His persistence in this practice and his influencing and mentoring of others are inspirational and worthy. Many a practitioner could view his experience and aspire to one day look back on such a career and achievement. It is difficult to comprehend that he is only now joining the fellows of the College, but it is a welcome achievement nonetheless. Congratulations Judge!

Remediating

An interesting and troubling story from the British Broadcasting Corporation (BBC) out of Great Britain illustrates the potential for broader concerns from SARS-CoV-2 and the COVID-19 it causes. This relates the circumstances of a death by suicide resulting from isolation. The headline caught my attention: Covid left Manchester student who took own life 'literally isolated'.

Recently, I noted in a post that we likely do not know what is going on in people's lives. See Starfish (February 2022). I cited a deeply troubling suicide example involving a celebrity who seemingly had everything together and epitomized success. I encouraged us in that post to strive for better awareness of the challenges that surround us, and to try to reach out more often, share more openly, and support our community and its members. The BBC story illustrates that such support maybe even more of a struggle in a virtual world.  

There is a great deal in our lives these days that may be virtual. In the litigation realm, it appears a great many lawyers are preferring virtual discovery, some still prefer virtual mediation though they admit it is losing its luster and effect, and some even say they prefer virtual hearings. The headline struck me, however, because I cannot envision "virtual isolation"; it seems that isolation might seemingly always be literal?

The young person in question had no outward signs of emotional issues. Having completed secondary school, he had an opportunity many never will and was traveling south-east Asia as part of a "gap year." Back in the day, no one I know had the money to take a "gap year," and if such had been suggested the first response from any parent would have been "get a job."

But, this student's "gap year" was truncated by COVID. He spent his summer of 2020 at home, described by his mother as "miserable." She reported that she believed he was nonetheless "looking forward to the next stage of his life" when he reported to (the) University in the fall of 2020. COVID may have a way of compounding impact upon impact. Each may be small, even inconsequential in itself: a favorite restaurant closed, a distraction such as a social club suspended, or a product temporarily unavailable at the grocery store. Each may be trivial, but in aggregate troubling.

In the BBC story, almost immediately after arriving on campus, a student in this young person's building was diagnosed with COVID and everyone was ordered to isolate. The University transitioned to virtual classes ("tutorials"). As a result, this student "didn't really leave his room very much at all." Isolation may be facilitated by the very innovation and enthusiasm that fans of virtual proceedings may relish. It is not just suicide. The Centers for Disease Control recently noted:

"Social isolation significantly increased a person’s risk of premature death from all causes, a risk that may rival those of smoking, obesity, and physical inactivity"

Being alone can hurt you as much as smoking? That is sobering and somewhat scary.

The University in the BBC story strove to maintain some level of contact. On September 30, the student attended a "Zoom session" with university academic staff. Other than that, "no evidence was provided that the 19-year-old was either seen or spoken to during his self-isolation." He was found dead on October 8, 2020, when his family raised concerns. The isolation period was two days from the conclusion.

The Coroner concluded this was a suicide. There were conclusions drawn regarding the effects of the pandemic as to the student's travels, and the isolation. Notably, this student had prior emotional issues. A prior diagnosis of anxiety was not disclosed to the university on its admission paperwork, though those forms were not necessarily specific regarding inquiry into emotional issues. The focus of the forms was more akin to the issues of any existing "disability or special need." But, when asked about a "special need," the student did not disclose it. 

The story suggests that greater university knowledge of challenges might have been more appropriate. Denying that the form wording played any role in the death, the school appears to be interested in pursuing more complete pre-admission inquiries. Some will undoubtedly see such inquiry as invasive and even abrasive. There will likely be struggle and friction between the need to predict challenges and prevent tragedy and the student's right to privacy.

What it returns to is the simple conclusion that no one knows what others are going through. Whether from some event, some cascade of experiences, or otherwise, people suffering from challenges surround us. Some of them will only cross our paths virtually, and their isolation in that regard may itself be a significant challenge. To what extent will we remain conscious of that? What will we do to acknowledge that? How will community and business meet the challenges of that as normalcy nonetheless returns to the commonplace? 

How do we acknowledge the challenges that people face and have overcome? As the world comes back to full activity, "normalcy," and the viral concerns fade, how do we remain conscious of what people have been through, or are perhaps going through each day?

A Miserable Example

The local ABC affiliate in Phoenix, Arizona recently published an expose of "astonishing and horrific conduct by judge." It is an interesting read, and reminded me of Victor Hugo and Les Miserables, which he wrote in 1862 depicting injustice in the nineteenth century. He noted "I'm not totally useless. I can be used as a bad example.” And, as Don Henley reminded in his Driving with your Eyes Closed (1984), "everybody got to have a purpose in this world." It is alleged that an Arizona judge has possibly found hers. If you are tempted to click the link and read the original story, note the station's warning that it "contains words and images that are graphic and cruel."

The story is about "mock(ing) and ridicul(ing) people during hearings and trials." The Judge and staff allegedly sent emails back and forth with "cruel and obscene statements, jokes, and memes" about "defendants, their families, jurors, witnesses, attorneys, even other court employees and top court officials." They apparently were, one might say, equal opportunity offenders. The foregoing should be shocking as regards any public servant. And, one might readily think of the Arizona Code of Judicial Conduct, and its imperatives, guidance, and constraints. 

That Code, similarly to others, speaks of "promoting confidence in the judiciary," "decorum and demeanor," "bias, prejudice, and harassment," "judicial statements," "supervisory duties," and even "ex parte communications," a subject that has graced these pages a few times. See Judicial Behavior and Ex Parte Communication (October 2015); What is Ex Parte (January 2018); and Ex Parte Yet Again (September 2019). If the reader has not caught the theme on ex parte, stated simply: ex parte is bad. 

Of note, the Arizona Commission in this instance did not conclude there was sufficient proof of ex parte communication, but it was merely alleged. Ex parte was alleged because in addition to the allegations of making fun of and demeaning people, the judge "and her staff were also accused of regularly having inappropriate contact and communication with defendants."

The judge was a prosecutor before appointment as a Court Commissioner in 2012 and was appointed judge in 2016. While the allegations against the judge were under investigation, the judge was quietly "allowed to resign" in 2020. The ABC affiliate noted that the Arizona officials conducting the investigation did not impose any sanction or punishment and that the former judge who now works as a prosecutor "declined to be interviewed" for the story. 

What many do not think of is the limited authority of state authorities that investigate judges. In many instances, that authority evaporates when one ceases to be a judge. Thus, the station's "allowed" may be more suggestive than real. The panel may not have had any authority to impose any sanction once the resignation occurred. That could leave it to the state licensing authority, such as the bar association, to impose sanctions as The Florida Bar did following the resignation of a judge discussed in Judicial Behavior and Ex Parte (October 2015).

A clerk in this bad example's court made the allegations noted above in 2019. She described the behavior she alleged as bullying, and described being ashamed of her personal tolerance of the behavior before coming forward. She contends that if you "watched someone bullied and do nothing, you’re as bad as the bully.” That is an excellent point, worthy of reflection. If we tolerate it, are we not equally guilty?

The complaint that was eventually filed is said to "outline() many examples of alleged misconduct." The ABC Affiliate reports that it "independently verified many of the allegations in the complaint filed with the commission." While that is a resounding statement, the reader must remain conscious that "verified" may nonetheless fall short of the burden of proof in such situations. For example, one independent witness verifying an allegation may well be "verification," but not be sufficient to convince the discipline authority that the allegation is "highly and substantially more likely to be true than untrue," which is what the "clear and convincing" burden means according to the Nolo Legal Encyclopedia.

The judge is alleged to have dismissed a juror who described a medical excuse from service, after which a bailiff circulated to the judge an others "a cruel and graphic meme to mock her medical condition." The affiliate reports there are "dozens of examples" of such "mocking and ridiculing of people in court," which took place "over years." Images were published in the original story. The complainant in the case alleged "it was an 'almost daily” occurrence.'" Some of the derogations were allegedly "printed . . . laminated . . . and hung . . . on the wall in the division." One law professor was quoted equating the behavior to what "you normally associate with high schoolers.”

In March 2021, the Arizona Commission on Judicial Conduct dismissed the 2019 complaint against the judge. The order is said to have "acknowledged the improper memes and emails but did not address any of the other serious allegations alleged in the underlying complaint." It noted that the Arizona Bar had likewise not taken any action, but reported those officials claimed "they were never notified." As a result of the news inquiry, perhaps the Arizona Bar will undertake an investigation now. Its inquiry may be governed by a "clear and convincing" standard, or perhaps not. Its' authority may similarly be truncated by a resignation, or not. Those issues are all likely to be particular to Arizona law. 

The ABC Affiliate also expresses concerns about the former judge's new role as a prosecutor and the timing of discussions that led to that position. It notes the potential for conflict of interest, saying the judge "presid(ed) over at least one capital case while talking with (the prosecutor's office) about a job prosecuting capital cases." It is not clear whether that allegation was ever raised with the Commission, or whether it will be with the bar association.

The judge provided a statement to the ABC Affiliate and stressed that she was found to have "failed to appropriately supervise my staff," but that all "other allegations were unfounded and dismissed." As to the emails and memes, the judge "admit(ed) that I did not handle that in the best way and have taken full responsibility for it." The judge adamantly denied "participat(ing) in ex parte communications" or keeping a collection of "memes and photos” in the division, either posted on the wall or in some collection or book.

According to a "confidential letter" from the Commission, provided by the judge, the standard for judicial conduct in Arizona is "clear and convincing" evidence. That means that

"the evidence is highly and substantially more likely to be true than untrue; the trier of fact must have an abiding conviction that the truth of the factual contention is highly probable. (Colorado v. New Mexico, 467 U.S. 310 (1984)."

According to the letter provided by the judge, the Commission did not find such "highly and substantially" convincing evidence to support any of the allegations other than the obligation of a judge to be "courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others," and to require judicial staff to be likewise. In short, it appears that this judge essentially lost her position over allowing a cruel and intolerant bailiff to ridicule and demean people. 

Certainly, the "clear and convincing" is a somewhat lofty standard, beyond the "preponderance of the evidence" standard that applies in civil court proceedings (facts must be determined to be more likely than not). The clear and convincing standard is similarly not nearly as demanding as the "beyond a reasonable doubt" that prevails in criminal proceedings. However, the point remains that in this country those who are accused are presumed innocent until proven otherwise. These "standards" define how much proof is necessary. In this instances, that standard was met as regards only one set of facts, albeit a fairly disturbing set of facts about the memes, photos, and disrespect, and then the judge divested the authorities of jurisdiction by resigning. 

Certainly, it is not clear whether the Bar will investigate or take further action. It is possible that this lawyer will continue to serve as a prosecutor, or perhaps a private attorney, in the Arizona justice system. Time will tell if further inquiry is undertaken.

What is clear from the story, and the admissions by this judge, is that the Code of Judicial Conduct demands respect and courtesy for all that participate in any judicial proceeding. That such respect is afforded is the responsibility of all involved, including the judge. We must remember as judges that in these regards the behavior of everyone else in the proceedings is our responsibility. The temperament and tone of each and every proceeding, chamber or division, and hearing room is up to the judge presiding. 

Coincidentally, the NY Daily News recently reported that workplace bullying is not appropriate in other workspaces either. A "top science advisor" in the federal government recently apologized "for "Browbeating staff," and then resigned. His boss reportedly said "I hear you treat another colleague with disrespect, talk down to someone, I promise you I will fire you on the spot.” And yet, again, a resignation not termination. And, not on the spot, but after a lengthy investigation during which 14 current and former staffers described a toxic workplace." 

By example first, and other means when necessary, the judge has a duty to maintain an appropriate tone of decorum, civility, and respect for all involved (before, during, and after) in judicial proceedings. In any workplace, everyone has the right to be treated better than the normal fare served by playground bullies. Lest anyone be tempted to forget that, refer back to this particular miserable example. Judges should make it their purpose to be an example, but a good one.