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Thursday, April 10, 2025

Congratulations Ramon Malca

The Florida Bar Workers' Compensation Section presented a novel and significant recognition at the 2025 Forum. The MALCA ("Mentorship, Advocacy, Leadership, and Champion Award") was presented to its namesake, Ramon Malca.

Mr. Malca has practiced Florida workers’ compensation law since 1975. He has been Board Certified since the inaugural class in 1988. Mr. Malca has twice served as Chair of the Executive Council of the Workers' Compensation Section of The Florida Bar (1989-1990 and 2005-2006), and has served extensively on the Council. He is a founding member of Florida Workers’ Advocates and a past president of FWA.

He is a recipient of both the W.L. Bud Adams (1992) and Frierson/Colling Professionalism awards (2013). He served on the first dedicated Judicial Nominating Committee (1990-1994).

Ray was inducted in the inaugural class of the Florida Workers' Compensation Institute Hall of Fame in 2012. He is a Fellow of the College of Workers' Compensation Lawyers, and served on the College's Board.

Ray was one of the innovators involved when collective-bargaining opt-out came to Florida in 1994. Since then, he has served as an arbitrator regarding workplace claims by Miami Dolphin players.

Mr. Malca was instrumental in founding the Workers’ Compensation Trial Advocacy Workshop, which first convened in 1990. He went on to chair, conduct, and manage that program in Miami for 34 years. The program has variously been annual and biennial, and was limited to 24 participants, providing ample opportunity for hands-on experience and active mentoring. According to Judge Jeffrey Jacobs, Ray was persistent in stressing "the importance of actually saying the words and asking the questions, not just thinking about it."

At the conclusion of the 2024 Workshop, Mr. Malca stepped down as chair and passed the torch for this program to Judge Jeffrey Jacobs, Mark Touby, and Glen Wieland.


When Ray was inducted into the Florida Workers' Advocates Hall of Fame. It noted that one of his "most enduring legacies is in Ray’s organizing and chairing the Trial Advocacy Workshop on behalf of the Workers Compensation Section of the Florida Bar." 

Ray Malca's service to the workers' compensation community, the Section, and the Workshop was appropriately and gratefully acknowledged at the 2025 Forum with an award noting:





The Numbers - Spring 2025

Last week brought an interesting post to my LinkedIn feed. Joe Paduda, a health and wellness advocate with workers' compensation roots, noted that "serious injuries drop - a lot." The post is here. The header for the post is "Great news indeed." It is always good news that people are not getting injured. I didn't have access to his data points, but I take them on faith.

I ran a quick internet search and found that The Economics Daily of the U.S. Bureau of Labor Statistics says that
"Private industry employers reported 2.6 million nonfatal workplace injuries and illnesses in 2023, down 8.4 percent from 2022."
That is promising indeed.

Property Casualty reported in March that
"Serious injuries and fatalities fell 16% in 2023 when compared to 2022"
This was a return to the "lowest total since 2017," and is "suggesting the start of a downward trajectory."

That is even better news than the decrease in injuries overall. I often pause with such statistics because, whatever they portend, the data being discussed is over a year old. There is hope that 2024 will bear out the characterization of a "trend," but such is never a certainty.

The post got me thinking about whether litigation is up or down in Florida. The 2024 OJCC Annual Report is on the website. It conglomerates a great deal of data for the last decade (older reports can illustrate further into history). In 2024, the OJCC saw "new cases" decrease 1% and petitions increase 7% (p. 15). From the one year, one might see a trend of "increase" in litigation.

But, the figures for petitions were markedly more consistent with each other 2016-17 through 2022-23, notably hovering in and around the low 70 thousands. The "new case" decrease in 2023-24 must be considered in light of the two notable increased in 2021-22 and 2022-23. In truth, the "new case" volume has similarly shown reasonable consistency in the low 30 thousands.


The workers' compensation forum is a persistency of early April. I have been honored to participate in that program on various occasions, and find the experience rewarding. I am often asked about litigation statistics, and the report by The Seer of Syracuse (Mr. Paduda) prompted me to consider the numbers ahead of the conference this year.

The petition volume this fiscal year (with three quarters in the books) appears to be shifting down about 4.2%, while "new cases" are down about 5.4%. The months that show significant decrease in each were October, November, and February. February is harder to explain, but it is practical to consider Hurricanes Helene (September 24-27) and Milton (October 5-10) as impacting injuries, law firms, medical care, and more.

Notably, if the same 9 month period of 2022-23 is compared with 2024-25, then petition volume this year so far is about 2.6% higher than 2022-23. New case volume remains below the 2022-23 pace by about 5.5%.

This all illustrates that snapshots may not tell the whole story, and trends become more apparent after years accumulate. It is difficult to tell if a particular present is a new trend or an outlier. Nonetheless, it appears that litigation in Florida will trend downward when 2024-25 ends June 30, 2025.

Whether that is related to the decrease in "serious" injuries reported by Property Casualty or not remains to be seen. Whether there is a trend or not remains to be seen. Nonetheless, it is interesting to see these figures and to ponder the future of litigation in the Sunshine State. 



Wednesday, April 9, 2025

Part of the Solution?

The Great Pandemic wound down and left much detritus in its wake. Even today, you periodically hear of someone having COVID-19. I was recently reminded of a colleague who passed away after contracting it in the height of the infections and repercussions. Those folks are worthy of our reflection and remembrance. 

There were changes wrought by SARS-CoV-2, and the many actions and reactions from a variety of perspectives and approaches. The video deposition, mediation, and trial are great examples. Those all existed before the Pandemic, but their prevalence in the post-2020 has been remarkable. 

In the new era, we perceived challenges. Professionalism was one, collegiality was another. Long gone are the days when us old folks were young folks, gathered around the proverbial water cooler down at the "comp office," or "division." In those halcyon days, we both learned and taught a great deal. We interacted, commiserated, and grew. 

In 2023, there was a big push on the topic of professionalism and collegiality. The Florida Bar Workers' Compensation Section launched the district office lunches. Kudos to Paolo Longo and the whole team that led us on those gatherings. Kudos too for taking us to speak at law schools for consciousness-raising and more. 

The OJCC jumped into the fray with the OJCC Academy. We envisioned this as a "newer lawyer" opportunity. We recruited some emerging lawyer leaders and launched in the spring of 2023. Response was so overwhelming that we repeated in the fall that year in Tampa. Kudos here go to Judges Kerr, Moneyham, and Pitts for their commitment and leadership. Mediator Ana Fajardo-Gonzalez was also a key driver and organizer. 

We continued with the third iteration in the fall of 2024, and the fourth for October 2025 is being organized now. This program could not have been done without the last two years of leadership and commitment by:

Natalie Cavallaro
Lindsay Koppelman
Javier Melendez
Tara Pachter

Since that first year, Ms. Pachter has rotated off, and we have added the talents of Rachel Givens. We are striving to periodically rotate talent and in the process we are building a great reserve bench of experienced and able folks as a ready-reserve to assure this program succeeds, excels, evolves, and persists. As I have worked with these emerging leaders, I have been nothing short of inspired by their dedication, commitment, and contribution. 

We noticed that this Academy program was phenomenal, but left another group wanting. The more experienced attorneys, the future leaders, and the "tomorrow" of workers' compensation practice in Florida. We decided to launch a program for them, with an eye towards preparing these future leaders to better the grasp and appreciate the breadth and depth of our law, the practice, and the vast array of interactions that are workers' compensation. 

In 2024, we allowed the judges around the state to nominate participants from their geographical region. That regionality was a great idea. We recruited our first group of OJCC Scholars and launched the 2025 program in August 2024. The curriculum is bookended with two live programs and then there are 7 virtual meetings in between. 

It has been a fantastic experience for me. I am confident that I learned as much as anyone. In a future post, I will describe the curriculum and thank our vast spectrum of expert speakers who contributed time, intellect, and practical advice. 

I do not publish this blog on Wednesdays. 

This is an outlier. 

It is published today because the 2025 Scholars will gather at the Workers' Compensation Section/WCCP Forum in Orlando this week. And to kickoff the show, the 2025 Scholars will complete that 18-hour program today. We will hopefully help to propel these promising and accomplished practitioners into a little higher orbit, though they were all high-flyers to begin with. 

I am exceptionally proud of these twelve individuals. I see them as harbingers of a great future for this industry, practice, and community. And, I am pleased to announce that we will soon begin the same selection process for the 2026 Scholars. We are hard at work revising and refining the curriculum, brainstorming the next speakers, and planning for another great group. 

Could it be you, or someone you know? Anyone interested should approach a local JCC, or you may email me david.langham@doah.state.fl.us.  This is predominantly a group of lawyers, but we are interested in collegiality, networking, and different perspectives. The 2025 Scholars included an insurance professional. Could the 2026 Scholars include you?

Let us hear from you!

In closing, I note that the success of the Scholars program belongs to those who organized it: Judges Humphries, Kerr, and Walker, as well as Mediator AnnaMarie Kim. For 2026, in the same spirit of team expansion and bench-building, we will add Judge Brian Anthony and mediator Kate Marshman as Judge Kerr and Ms. Kim rotate to emeritus status. And, a special thanks to all the judges who nominated, vetted, and helped recruit the incredible inaugural group!

The organizers and motivators of both of these programs are part of the solution. Everyone that attends the OJCC Academy or Scholars program is part of the solution. Every speaker that donates their time, wisdom, and wit for these programs is part of the solution. What are you? (hint - that is a base appeal to your volunteerism - email me). 

Today, April 9, is an auspicious day, of achievement and closure. It is an exciting day of launching yet another Forum. It is a collegial day of gathering once again to celebrate the community that you are and the things that you bring. 

I look forward to seeing you around the ChampionsGate facility this week.




Tuesday, April 8, 2025

Touring Turing In Fact

The Turing Test is upon us as a measure of our reality. For seventy-five years, it has influenced the dreamers and developers of artificial intelligence (AI)(prior AI articles here) The breadth of Hollywood excursions into AI is incredibly diverse, and many focus on AI becoming sentient. Those have been noted here in various posts, but a good summary of the best was published in Resident. 

The test, according to Britannica involves
"a remote human interrogator, within a fixed time frame, must distinguish between a computer and a human subject based on their replies to various questions posed by the interrogator."
It is "an imitation game," that is played. Britannica acknowledges that "Turing sidestepped the debate about exactly how to define thinking." He dodged the issue of sentience and instead proposed a test of convincing. A machine need not think but must be sufficiently adept at convincing us it has. That is a critical distinction, but perhaps not for mechanics.

According to the Stanford Encyclopedia of Philosophy, the Turing Test:
"refer(s)to a proposal made by Turing (1950) as a way of dealing with the question whether machines can think."
The contentions in that article are challenging and illuminating. Perhaps the roots of Turing's thought may extend to Descartes (1637), and Cartesian de Cordemoy (1668). Descartes suggested that we question our perceptions, beliefs, and conclusions. However, he was seemingly convinced of one universal truth: cogito ergo sum ("I think, therefore I am"). This is history, largely quoted, and perhaps the best or the worst revelation depending on your perspective (some love Descartes, others not so much).


Thus, the Turing test is philosophical. It is subjective, and dependent upon the thoughts and processes of the observer. It is consensus in the basest form and yet is championed as science. See Consensus in the Absence of Proof (January 2021); Tootsie Pops Make You Think (August 2021). I have not necessarily been a persistent fan of consensus. 

In April 2025, the news broke that two AI Large Language Models (LLM) had passed the Turing Test. see Avatars to Replace Lawyers (April 2025). From this, we are asked to conclude they are sentient, that they "think" and perhaps "feel." From this subjective consensus, we are asked to conclude that the AIs are indeed thinking beings. With that will come those who think they are our peers. See Rights for the Toaster (October 2024)

A word of caution, as noted by Futurerism, is that the conclusions in this recent study are currently "awaiting peer review." That is perhaps critical. Peer Review is a specifically subjective consensus process in which various smart people are asked to review the conclusions of other smart people to see if the seconds agrees with the firsts. 

That people are smart does not make the process science, per se. As noted in Consensus in the Absence of Proof (January 2021), consensus did not favor intellects like Copernicus and others. 

Generally speaking, science is not consensus. It is hypothesis, test, measure, and replication. If a million people believe a dumb idea, it is still a dumb idea, despite the consensus. Indeed, the science may perhaps be deemed to exist through replication of the recent tests that have made the news. 

Nonetheless, any repetition is likely to have the same arguably fatal flaws of subjectivity and observer bias that are inherent in the Turing Test. Subjectivity and observer bias are ever-present as challenges in science, study, predictions, conclusions, and more.

In announcing the results of the (as yet) unreviewed testing, the Daily Mail proclaimed
"Robots are now as intelligent as HUMANS"
That is fundamentally flawed because the test is not about intelligence but about sentience. A well-reasoned 2024 Built In article voiced distinction:
"Intelligence is about cognition and the ability to acquire and apply knowledge, while sentience relates to the capacity to feel and have subjective experiences."
In short, intelligence is not synonymous with sentience. Furthermore, sentience, intellect, and humanity come in degrees. Certainly, I am likely as sentient as Turing ever was, but it is unlikely I will ever be as intelligent. 

In the recent testing, which "awaits peer review" (or some additional consensus bias), the foundation, the AI LLM responses, was observations by
"126 undergraduate students from University of California San Diego and 158 people from online data pool Prolific."
Who are these people? What are their qualifications to observe, interact, engage, and evaluate? They are, undoubtedly, mere humans (as am I). Almost half of them are undergraduate students with potentially only a modicum of life experience. It is possible that they are all of average intellect and ability, but then again aren't we all?

In this admittedly subjective and consensus-driven evaluative process, who will be the judges of sentience? As the Turing Test is administered, will the interactions be occupationally evaluated?

In other words, might an AI LLM more likely seem indistinguishable from a "real person" if the evaluator lacks foundation? If the inquiries are about baseball and the evaluator has never played or watched a game, might the result depend more on form than knowledge (how many touchdowns does it take to win a baseball game?).

If the subject matter is medicine, is it logical that the evaluators would be non-physicians?

If the subject matter is law, is it logical that the evaluators would be non-lawyers?

This list could go on for days inquiring about engineering, accounting, management, acting, and virtually anything else. In any event, does it make sense the evaluators of such technical topics would be undergraduate students?

Certainly, there are also people in each of these professions who are perhaps not the most knowledgeable, intellectual, or proficient. They may not be the best trained, or the most engaged. Nonetheless, it is likely the lowest functioning expert in any field is still a bit more qualified there than the randomly selected undergraduate student?

What we gather from Turing's expansion on Descartes is important: exceptionally smart people often build on the work of other exceptionally smart people. It appears probable that Turing did so. AI LLMs will also likely do so. 

Humorists have suggested we similarly need such tests for humans (think "Florida Man"). While that is humorous, it is also a little too close to home perhaps. We do not doubt the human sentience when it makes untoward decisions, errors, and worse. Will that cause us to doubt AI LLMs? 

Nonetheless, the folks at Stanford suggest entities may pass the Turing test, and
"use words (and, perhaps, to act) in just the kind of way that human beings do—and yet to be entirely lacking in intelligence, not possessed of a mind, etc."
Thus, the Turing Test is perhaps largely one of mimicry. We might similarly employ a group of observers to listen to birds. Could they distinguish between a mockingbird and the bird being imitated? If I am the observer, then the answer is a hard "no." But what if the observer has a deep knowledge of birds, including mockingbirds? Then, perhaps the answer is more likely or probably yes.

This will all be critical as human society debates how, where, when, and why we integrate AI, LLMs, Robots, and more into our world. These are scary, exciting, and intriguing times.  


Sunday, April 6, 2025

Avatars to Replace Lawyers?

I have been beating the drum on robotics and artificial intelligence for a few years now. Almost a decade ago, I warned you about AI and the advent of large language models (LLM) in Ross, AI, and the new Paradigm Coming (March 2016), and about their power and abilities in Chatbot Wins 160,000 Legal Cases - the "Future is Now" (June 2016). I have been persistent since that time with posts like Technology Impacting Judging (March 2019). This is all old news.

Credibility is a major challenge for adjudicators. There are a myriad of issues that may affect the demeanor and presence of any witness. I have written on credibility a great deal over the years. See Credibility Again (June 2023) and the posts cited there. Perhaps my favorite and most unfortunate credibility anecdote is The Chair of Truth (February 2018).

There is evidence that computers are far more effective at detecting "liars ... than humans with the naked eye." The University of Buffalo reported in 2012 that computers are correct "more than 80 percent of the time." That was over a decade ago also. 

Make no mistake:

Computers can be more effective than humans at accessing and expressing.

Computers can be effective advocates.

Computers are adept at processing vast data quantities and complexities, in ways we may not even understand.

Computers may make better judges than humans (equivocating, "may" in self-interest).

There are those who are scared of these tools, their evolution, and their impacts on us. In March 2025, a computer tried to represent someone in a court proceeding in New York. Well, in fairness, that is what the Associated Press (AP) headline might lead you to believe:
That is a bit misleading. What factually happened in "the latest bizarre chapter in the awkward arrival of artificial intelligence in the legal world" is just another instance of a litigant using AI. The pro se party asked the Court's permission to "submit a video" instead of presenting an in-person argument.

As the video began, a "smiling, youthful-looking man with a sculpted hairdo, button-down shirt and sweater" led with the classic “May it please the court.” The AP says this was stated by "the man" in the video, but there was no man. It was a digital compilation, a computer creation, that looked like a man. This is a far cry from early avatars like Max Headroom which were mere parrots. In reality, they were actors pretending to be the harbingers of our future. 

This photo was conjured by GROK AI and is its interpretation of the prompt "smiling, youthful-looking man with a sculpted hairdo, button-down shirt and sweater." It is not a real person, and any similarity or likeness to any real person, living, dead, sentient, or otherwise is purely coincidental. 

Bad faith?

The Court shut down the video instantly. The pro-se litigant was accused of misleading the Court. The litigant was allowed then to proceed with his argument incorporeal, bodily, physical, and live. He had to have his say from his own mouth. He had to speak his own mind, in person, in fact. 

The Court did not sanction the litigant. But the litigant wrote "an apology to the court." He explained that "he felt the avatar would be able to deliver the presentation" more adequately and effectively than he could personally. He was afraid he would personally present "mumbling, stumbling, and tripping over words."

The litigant conceded after his video attempt, this methodology led the court to be "really upset about it." His perception was that the court "chewed me up pretty good." What were the judges upset by?

Should the Court have been perturbed? If you answer yes, then ask why? The litigant not being frank with the Court is an absolutely appropriate reason for the Court's disappointment, perturbation, or even ire. It is not appropriate to mislead a Court by commission or omission. Hard stop.

If the reason the Court is perturbed is simply that new tech was employed, then perhaps further introspection is warranted. Yes, it is new, unfamiliar, and even alien. Yes, it may be uncomfortable in its novelty. That said, one might wonder how it makes any difference that an avatar reads someone's statement or another human does. In this, might a chatbot represent a litigant? We know that has happened. But we would know, right, should know, right?

All that said, the most recent study seems to suggest that AI LLMs are beginning to pass the Turing Test see X-Files or Poltergeist? (November 2024). This means, in the scope of our expectations and fantasies formed over decades, the "be-all" has occurred in the field of AI; a be-all that has been dreamed of since 1950. 

This does not mean further evolution or revolution does not lurk in our future (it does), but it is a major milestone nonetheless.  It was the impossible dream of Turing, and yet here we are. Having reached this goal line, others will set new goal lines, even as the stragglers catch up to this Turing point. 

The news is that the University of California San Diego says it tested four LLM: "GPT-4o, LLaMa-3, and GPT-4.5 and Eliza." Two of the four passed the Turing Test rather convincingly - LLaMa-3, and GPT-4.5. The two that failed nonetheless still did pretty well, but not quite a passing quality. Focusing back on the thoughts in Is Gartner Helpful on AI? (December 2024), this is indeed "the end of the beginning."

It is significant that the successful Turing test results are attributed in part to having "the synthetic mimics adopt a human persona." In other words, the programmers told the AI LLMs to seem human. That made them more believable. That credibility is exactly what the pro see litigant in New York hoped for and sought with his attempt to use AI as his spokesperson.

As AI evolves into our day-to-day, the power-user will ask it not only to write a brief but to write it in the voice of the judge who will review it. Familiarity and flattery will get you everywhere. 

The power users will evolve from asking an AI to describe a situation to asking it to describe the facts in a manner most sympathetic to one view, side, or perspective. In a future post, I plan to explain more about our predispositions, but the bottom line is that we humans are malleable and manipulable. 

The "end of the beginning indeed." we are off the edge of the map. The tools are increasingly capable and effective. We are unprepared to engage them, use them, and guard against their potential failures or shortcomings. These are strange days indeed. What are you doing to prepare yourself?

Thursday, April 3, 2025

Malicious and Destructive

Some crave "going viral." There is some thrill when the "Friends," "connections," "likes," etc. spiral upward. The brain perceives that as popularity and the Dopamine flows, and perhaps addicts. There is also some contention that performers experience a Dopamine "thrill" when they are on stage, or perhaps on the air? There is some evidence that our culture "seems to reward aggressive and angry behavior," and the bully brain may generate a similar neuro reward to the bully. 

However we get the result, there has always been a desire to be among the "cool kids," and whatever the future of social media, the internet, and AI, that will not change. Unfortunately, one of the ways bullies have evolved in this century is through social media. Perhaps we see it also in on-air personalities?

Despite the potential for such good feelings, the world of the internet and social media is a place of great peril. There are demons there, trolls, and worse. In basements around the planet, there lurk keyboard warriors who are quick with a joke, a profanity, or an attack. They pile on, demean, and insult. 

They relish anonymity and seemingly have no filter. See Keyboard Attacks (October 2024) and the posts linked there. Goodness knows what their mothers would do/say if they found out what was being typed in their basements by these anonymous great lame obnoxious basement slugs (GLOBS©).

But no person is limited to what the social media world perceives or believes. We are each worthwhile, despite any perceptions of others. Maggie Lindemann had a viral hit with Pretty Girl (300 Entertainment, 2016). The lyrics, after an expression of contempt for some accouterments of feminity, remind us that
"I'm not just a pretty girl
I'm more than just a picture
I'm a daughter and a sister
Sometimes it's hard for me to show
That I'm more than just a rumour
Or a song on your computer
There's more to me than people know"
She means that there is a life behind each face. There are stories and emotions, depth, concerns, and humanity. People are not just some profile, story, wall, or photo.

Those lyrics came to me when I read of an Old Miss student who was driven into isolation and hiding by the internet and the GLOBS who strive for its popularity, rush, and unfortunately, it was likely all about the money. Money comes from clicks, and clicks come from controversy. The story likely hit my feed because I pay some attention to the news of Lafayette County. See I Never Knew Oxford Had a Comma (March 2017).
 
It appears that some popular broadcasters have said some salacious and unfortunate things about an 18-year-old Old Miss Freshman. They apparently made their comments based on what they read on social media ("you can't put it on the internet if its not true" - hint, yes you can). The allegations went "viral on X" (f\k\a "Twitter"). In addition to maligning the Freshman, there are troubling and salacious comments about others in the story. Lives have been profoundly affected.  

The Freshman accuses ESPN network, Pat McAfee, Doug Vaughn, Jack Mack, Antonio Brown, and others of spreading rumors over the airwaves and perhaps social media. It appears that some of their expression, accusations, or innuendo have also fed the furor of the GLOBS, who have attacked with remarkable ferocity and enthusiasm. There may be some bullies involved or perhaps there is ignorance and indifference. 
 
At 18 years old this Freshman finds her name tarnished, her safety threatened, and her world in turmoil. She has been driven from her own life by GLOBS and ghouls she never met. Her offense? The best I can find is that she is a "pretty girl," and therefore somehow the target of envy, jealousy, ire, projection, pettiness, and exploitation. But, she is "more than just a rumor." She is, apparently, an innocent victim of some purposeless assault. 
 
The news is replete with stories about it. Neither her name nor the salacious nonsense spouted on the air bears repeating here. What bears noting is that the accusations and rumors broadcast by the broadcasters and GLOBS have no factual basis. Glamour concludes that "there is absolutely no evidence" to support the allegations.

To all present appearances, these pundits and basement-dwellers have simply jumped on the bandwagon and ruined someone's life for the mere fun and profit of it.  If hurting others makes you feel good, that is beyond sad. People who thrive on the pain of others are bullies. Get some help. Many people make mistakes, even bullies, but bullies never apologize.

The young lady has allegedly been accosted both on campus and digitally. She says she has lost sleep, health, and peace of mind. She has been followed, screamed at, belittled, insulted, maligned, doxed, and defamed. As far as I can find, none of the public figures or GLOBS have:
  1. retracted their statements
  2. apologized for any mistake or misstatement
  3. taken a modicum of responsibility for the impacts of their words
  4. Offered her assistance in any regard
At the end of the analysis, per Ms. Lindemann, this young lady is more than "just a pretty girl." She is, like virtually all the others in the world, "more than just a picture," in fact "a daughter and a sister." She is a person. She has worth. She has not been proven to have committed any wrong. What is the fascination with tearing her down?  

In that, it is perhaps important that she is not a public person who ascends some stage or outlet and seeks the world's attention. We have long afforded such "public persons" less defamation protection than others. Give New York Times v. Sullivan, 376 U.S. 254 (1964) a read sometime. Despite various attempts, that decision remains a demarcation for the public person v. private person and defamation. There is room to debate whether anyone is a private person in the age of social media, but that is for another day. 
 
Are the various, and to all appearances unwarranted, attacks on this college Freshman actionable? It is incomprehensible how deep the impact might be, or how long it will persist. Does anyone deserve to become a meme or punchline? Well, if you claim fame then perhaps so. But if you are dragged, kicking, and screaming into the spotlight? Imagine the rest of your life becoming a punchline because some bullies and GLOBS made you their dopamine path of the day? 

Time will tell. This Old Miss Freshman has hired a lawyer and proposes some recovery of damages from those she accuses of maligning her; the broadcasters, not the anonymous GLOBS. It may be that GLOBS are never identified or pursued. Nonetheless, the New York Post quotes a family member proposing that the proceeds of any lawsuit would be:
“used to provide seed capital establishing a foundation focused on helping innocent victims of similar defamatory cyber attacks.”
Wow. From victimization to striving to help others. There is more to this Freshman; this reaction is admirable. 

There is some groundswell of indignation. Some have suggested that ESPN must fire McAfee. There have been multiple Twitter posts urging that outcome. Some have been more virulent than others. Some of those attacks are similarly from the GLOBS community. The tendency to pile-on is intriguing, troubling, and yet seemingly persistent.

One might expect a measure of empathy or restraint. As The Athlete Lifestyle reported, Mr. McAfee retreated from the stress of Super Bowl coverage to take his wife and daughter to Disney in a private jet recently. Yes, "daughter" as in a young lady. Mr. McAfee is a father, with a daughter. One might conjecture about his reaction if a national broadcaster one day elected to spread salacious rumors about his daughter as she innocently navigates college? 

Empathy. 

One day? Perhaps what he is traversing presently would bring empathy. Mr. McAfee shared in March that he was being called out and threatened by GLOBS about unrelated public comments. Bleacher Report says he has received death threats directed at himself and "his infant daughter." That is likewise atrocious. 

The implications of that are as atrocious and inappropriate as what the young lady at Old Miss faces. Death threats are way past the line. And yet, so is a great deal more.  

It might surprise, but there is some evidence that bullies are more likely to have also been bullied. In this bullying could be self-perpetuating. That bears some consideration. 

Where is the empathy? When is the apology? When is the admission that what was said had no basis in fact? When will the megaphone that started this assault on the young lady engage to retract it? When will that megaphone instead celebrate her and her composure in the face of their assault?

Everybody makes errors. Each of us has said things we should not. We have all been responsible for someone's pain, exclusion, or perceptions, intended or not. When our words or actions injure, we apologize. There are lessons here. 

In the context of workers' compensation, the fact is that poorly worded statements happen often in litigation. By intent or not, people's feelings are hurt. Actions are misperceived, words are misinterpreted, and reputations may be implicated. There is heat-of-the-moment, frustration, anxiety, and much more woven into litigation. We will have human reactions, sometimes regrettably. 

When we find out we have damaged, we apologize. Humans are not inherently malicious and destructive. We are flawed, stressed, anxious, and more. We will damage. When we do, we must apologize, mean it, and hope to move on. We could all do a better job of ignoring the salacious, avoiding the bandwagon, and rejecting the bullies and GLOBS.

Being a bully does not make you a "cool kid." Neither does insulting, belittling, or maligning. Empathy makes you a "cool kid," and will allow you to improve and benefit your community. We could all take a lesson in dignity from a Freshman at Old Miss.

Tuesday, April 1, 2025

Could it be a Trait?

You may as well smile. Life is periodically going to give you lemons. What you do with them is your business though. Jenna Raine takes the metaphorical "lemonade" posture and sets it to music in It is what it is () which begins with a recitation of life's little problems and then hits a bit with the refrain:
Hey! Lemons make lemonade, 
Flowers bloom in the rain
Growing up is a pain, And it is what it is
Okay! It's not the end of the world, 
There's always light where it burns
Just remember the words, 
And it goes like this 
It is what it is, what it is, what it is, what it is It is what it is, what it is, what it is, what it is
A sound mental health outlook. Some things just happen.

The lyrics returned to me recently when I read about the young lady arrested in Georgia for speeding. You read that right, arrested for speeding. You must drive pretty fast in Florida to get arrested for speeding, but my curiosity was piqued. The headline about her smiling mugshot was a draw, but the addition of "Locked up Miss America" made it a "must-click."

The story is somewhat amusing because she was not just pulled over, but pulled over "twice in a matter of minutes." To be fair, I have been pulled over twice in one day before, but that is a whole other story. On this lady's first stop, she was ticketed "for going 79 mph in a 55 mph zone." Ticket in hand, she pulled out and ramped it up a bit to "84 mph in the 55 mph zone."

That reminded me of a joke told about a comedian who was stopped for 85 in Iowa. He explained to the trooper that he was trying to get to 88 MPH to get "back to the future." Try that one on next time you are conversing with an officer. I dare you.

Speaking of Iowa, and not meaning to run anyone down (sorry), the news reported an incident there where troopers "stopped 30 cars for speeding, and one driver was even jailed after they were allegedly caught doing a mighty 144 mph." There was one problem: "The stopwatch they were using was set to kilometers instead of miles." 

First, a stopwatch? That seems unlikely. But even so, it means Iowans do not understand the metric system any better than the rest of us. See 144 Kilometers per hour is more like 90 MPH. If the young lady in Georgia tries that defense, perhaps she was only going 84 KPH or 52 MPH?

But the real story is that this college student smiled in her mugshot, posted a bond, and headed back out on the highways. She went viral and received a lot of attention. The comments reported were untoward and even "unhinged." Her own response was perhaps the best though: "I had no idea you could get arrested for speeding." Well, a lot of folks likely think that.

People Magazine had an interesting article that included some comments by the student's parents. In that interview, she assured that "she's since learned her lesson."

Her story continues, supporting the concept of habit. She smiled again in her next mugshot days later. Yes, that "learned her lesson" bit was maybe premature (not an April Fool's joke). She was most recently arrested by campus police for "loitering/prowling and obstructing a law enforcement officer." 

It appears she and others were in a campus building after hours ("oh, the humanity!"). They all fled the police, but this lady was found "crouching behind a wall ... in an apparent attempt to hide." Running and hiding are apparently obstruction at UGA. I have watched people on the news set up campsites on campus that were not arrested. 

I am hearing Stadler and Waldorf now: "What does this have to do with workers' compensation?"

Well, the smiling reminded me of striving for comprehension with my students in evidence class. Section 90.404 generally precludes "evidence of a person's character or a trait of character," subject to some exceptions. There are also specific times when proof of other crimes may be admissible for some purposes.

This made me think. Could the prosecution in the latest arrest for loitering/prowling introduce evidence of the earlier arrest for speeding (ignore for a moment that prior incident is an arrest and not a conviction)? Not likely. Doesn't it prove she is a scofflaw? Not likely.

But what of the smiling that made this young lady famous? Could cheerfulness or bravery be a character trait? Would smiling in one booking photo raise the chance of comparing that to a second booking photo? The first photo (speeding) could not be introduced to prove she did or did not smile in the second (loitering) unless she introduced it to prove her trait or the prosecution does so to rebut her allegation of the trait.

Similarly, the first speeding could not be introduced to prove that she was more than likely speeding the second time. That would be more of an attempt at habit than a trait.

But, is bravery or cheerfulness a "trait?" Would her refusal or neglect to smile on the second mugshot be meaningful? Atlanta News First reported that she in fact did smile in the second. Does this prove that she has a tendency to be strong, unflappable, and confident? Is her demeanor and presentation a "trait" for the purpose of evidence and admissibility?

The story she has provided us is a sound example of identifying traits, and the role they might have in an evidentiary proceeding. In looking for traits, the careful litigator may strive to introduce such evidence of trait when relevant and persuasive. The effect depends on the behavior being a trait, and demonstrating its relevance to the finder of fact.

Can you show that "It is what it is, what it is, what it is, what it is It is what it is, what it is, what it is, what it is?"


Sunday, March 30, 2025

Notice of Unavailability

The cascade of notices of unavailability persists. I have written about them in the past. One of my earliest blog posts was The Notice of Unavailability (October 2013). That post explained the minimal value of this as a filing. It cited some judicial opinions critical of the practice. Those opinions acknowledged the courtesy they can represent and concluded that "these filings have no legal significance."

See I am not Available (October 2018). That explained that there is no basis in the OJCC rules for such a filing. The authority cited there concluded that such notices are a "creation of the Bar," and may be helpful to the parties. They are not, however, helpful or useful to the bench.

I returned to the topic in Sarcasm - it's Irritation (July 2019). There, I reminded that there is no rule that authorizes or requires such a notice. Those that are filed never cite any legal authority for either requiring them or dictating their purpose or effect. I concluded that such a notice is, at best, "useful and courteous communication to others in your case."

Nonetheless, they come into the OJCC filing system daily. I spent a week reviewing these filings and found that 120 were filed. The examination of one week cannot be considered statistically significant. Nonetheless, if that week was representative, then perhaps 6,240 of these are filed annually. That is a great many docket entries, daily filings to review, and unnecessary work for the OJCC staff.

It is important that lawyers understand the "not legal significant." The “notice of unavailability” has no legal effect. It is a nicety, a courtesy, and professional. Nonetheless, it would be all of those things if it was sent to opposing parties and counsel (served) without being filed with the OJCC. What is the draw to filing it here?

Please remember:

There is no provision in the Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications for such a filing.

There is no statute supporting any legal requirement or efficacy of these filings.

There is no decisional authority found that supports any efficacy of such a filing. Only in terms of avoiding a failure to prosecute might such a filing have any effect. Mote Wellness & Rehab, Inc. v. State Farm Mut. Auto. Ins. Co., 331 So. 3d 191, 193 (Fla. 4th DCA 2021), and then only under Fla.R.Civ.P 1.420, which has no application in workers’ compensation proceedings.

Such a notice in no way alters scheduling by the OJCC. The OJCC will not expend limited resources in searching dockets for such notices. “It is impractical for the (Office) to be required to search the docket of each case for notices of unavailability before setting hearings and response deadlines.” Pump It Up Holdings, LLC v. Anderson, No. 619CV1252ORL31DCI, 2020 WL 6366242, at *2 (M.D. Fla. Oct. 14, 2020).

The appropriate action for such filings is to strike. Counsel’s professionalism in notifying others in a case by service is appropriate and even laudable. Nonetheless, there is no reason or basis for filing with this Office. TNT Software, LLC v. G&G Biz Ctr. Bradenton, Inc., No. 5:14-CV-267-OC-10PRL, 2017 WL 11037125, at *2 (M.D. Fla. Mar. 16, 2017).

For the sake of efficiency, just serve such notices on each other and avoid filing them with this Office.

Thursday, March 27, 2025

Celebrating Workers' Compensation Section History

As the Section celebrates a momentous birthday, I have penned Some thoughts on the following are on the Announcement Blog.

Historic News and 440 Report

1989 News & 440 Report Summer 1989 12 4

1989 News & 440 Report Winter 1989-1990 12 5-6

1990 News & 440 Report Summer 1990 13 1

1990 News & 440 Report Fall 1990 13 2

1990 News & 440 Report Winter Issue (8) 13 3

1991 News & 440 Report Spring 1991 (8) 13 4

1991 News & 440 Report Summer 1991 (9) 14 1

1991 News & 440 Report Fall 1991 14 2

1992 News & 440 Report Winter 1992 14 3

1992 News & 440 Report Spring 1992 14 4

1992 News&440 Report Summer 1992 15 1

1992 News&440 Report Fall 1992 15 2

1993 News &440 Report Winter 1993 15 3

1993 News&440 Report Spring 1993 15 4

1993 News &440 Report Summer 1993 16 1

1993 News&440 Report Fall 1993 16 2

1993 News & 440 Report News Bulletin October 1993

1994 News & 440 Report Winter 1994 16 3

1994 News & 440 Report February 1994 16 4

1994 News & 440 Report April 1994 16 5

1994 News&440 Report Summer 1994 17 1

1994 News&440 Report Fall 1994 17 2

1995 News & 440 Report Winter 1995 17 3

1995 News & 440 Report Spring 1995 17 4

1995 News&440 Report Summer 1995 17 5

1995 News & 440 Report Fall 1995 18 1

1995 News & 440 Report Winter 1995-96 18 2

1996 News & 440 Report Summer 1996 18 3

1996 News & 440 Report Fall 1996 18 4

1996 News & 440 Report Winter 1996 19 1

1997 News & 440 Report Spring 1997 19 2

1997 News & 440 Report Summer 1997 19 3

1997 News & 440 Report Fall 1997 19 4

1998 News & 440 Report Winter 1997-98 20 1

1998 News & 440 Report Spring 1998 20 2

1998 News & 440 Report Summer 1998 20 3

1998 News & 440 Report Fall 1998 20 4

1999 News & 440 Report Spring 1999 21 1

1999 News & 440 Report Summer 1999 21 2

1999 News & 440 Report Fall 1999 21 3

2000 News & 440 Report Winter 1999-2000 21 4

2000 News & 440 Report Spring 2000 22 1

2000 News & 440 Report Summer 2000 22 2

2000 News & 440 Report Fall 2000 22 3

2000 News & 440 Report Fall 2000 Special 22 3

2000 News & 440 Report Winter 2000 22 4

2001 News & 440 Report Spring 2001 23 1

2001 News & 440 Report Summer 2001 23 2

2001 News & 440 Report Winter 2001 23 3

2002 News & 440 Report Spring 2002 23 4

2002 News & 440 Report Summer 2002 24 1

2002 News & 440 Report Fall 2002 24 2

2003 News & 440 Report Spring 2003 24 4

2003 News & 440 Report Summer 2003 25 1

2003 News & 440 Report Fall 2003 25 2

2003 News & 440 Report Winter 2003 25 3

2004 News & 440 Report Spring 2004 25 4

2004 News & 440 Report Summer 2004 25 5

2004 News & 440 Report October 2004 26 1

2004 News & 440 Report December 2004 26 2

2005 News & 440 Report February 2005 26 3

2005 News & 440 Report April-May 2005 26 4

2005 News & 440 Report August 2005 27 1

The issues since Sprin 2000 are available on the Section website.

Ya Jonesing Man?

It has been a long time since college, but back in that era, we used the word "Jonesing" a great deal. The Dictionary defines Jonesing:
"If a person has an insatiable craving for someone or something, they are said to be Jonesing for it."
In our hipster slang of the day, this was used often. It is short of "addiction," which the dictionary says is:
"a compulsive, chronic, physiological or psychological need for a habit-forming substance, behavior, or activity having harmful physical, psychological, or social effects and typically causing well-defined symptoms."
Addiction can be positive (e.g., "addicted to life man!" or "addicted to volunteering") or negative (e.g., addicted to crack, coke, or methamphetamine). Some of that is likely perspective-driven. I personally am addicted to workers' compensation, which Chicago noted in 1984 (Warner Bros.) is "a hard habit to break." Actually, they were singing about some love interest, not workers' compensation. The spirit is there though.

Apropos of our current human condition, scientists are now telling us that Artificial Intelligence (AI) "power users" are "becoming dependent upon — or even addicted to — the chatbot." No, the chatbot is not a person, and no I doubt that Chicago would sing that "hard habit" to some machine any more than to workers' compensation. Chicago was all focused on some person.

There are those who believe that our brains react to Large Language Models (AI) much in the same way we do to social media, but with a Serotonin response rather than Dopamine. Nonetheless, a chemical reward. They believe this is because LLM experiences are more interactive, more sustained, and require mental processing in a back-and-forth (i.e., a conversation). Use of the LLM "can foster a sense of accomplishment and intellectual satisfaction."

Unlike social media that links you to "friends," the LLM essentially becomes your friend, confidant, and even counselor.

Chicago explained the Jonesing in 1984:
Now being without you, Takes a lot of getting used to
Should learn to live with it, But I don't want to
Being without you, It's all a big mistake
Instead of getting easier, It's the hardest thing to take
So, "hard habit to break" borders on addiction, or compulsion. 

Well, like James Taylor (Smiling Face, 1970, Columbia), "I thought I was in love a couple of times before," but that was never with some AI, some chatbot, some computer program. Nonetheless, there are reports of some exceeding addiction and falling for an AI in a romantic way. Seems like falling in love with a toaster to me, but I am no scientist. 

The scientists have studied the "small subset of ChatGPT users engaged in" significant use. For the most part, the studied users are using AI LLMs like we all use an ink pen, stapler, or paper clip - as a tool. But others are drawn to it, ensconced in it, and Jonesing for it. They may not be at addiction yet, but the researchers see that as a real potential. They are beginning to consider the chatbot a "friend" or companion.

The conclusion seems to be that those who are susceptible to this substitution and transference are those who have social "lives (that) are lacking." They are "the neediest people," and may form "sad, scary, or somewhere entirely unpredictable" relationships with these tools (I know, we all know someone who fell in love with a tool, but this example is literal).

This emotional attachment also feeds into the drive to use AI for mental health therapy. There are seemingly credible care providers who are promoting and providing this AI counseling. Because of convenience, confidentiality (real or imagined), and likely cost, more people are turning to chatbots for emotional support. An article this month noted that "Chatbots are replacing therapists faster than anyone expected." There is some great attraction to this paradigm.

This may be of concern in terms of addiction, see above. Or, perhaps it is a codependency in this context. While there may be some economic constraints on how often one could see a human therapist, LLMs are cheap or free. I have never heard of any LLM responding to a Prompt about something with "Perhaps you have spent enough time with me today? you should go outside."

Even if money was no object, the human might nonetheless start to limit you or caution you about your counseling consumption. The chatbot never will. And if it does, you could just log into a different "friend" and start over (as an aside, this reboot likely works with the dating an AI issue also). Yes, people have dated AI LLMs, back to Chicago, James Taylor, and all that entails. Some are a bit hurt when people ITRW question their compu-amorous engagements. 

Beyond the sheer volume of potential "counseling," and the impersonality of it, LLM emotional counseling is also concerning from the perspective of harm. Some are beginning to caution that Chatbots may not always be your friend. The "nation’s largest association of psychologists" recently expressed such concerns. 

Cynics may say they are protecting their economic turf. Nonetheless, they "warned federal regulators that A.I. chatbots 'masquerading' as therapists ... could drive vulnerable people to harm themselves or others." Certainly, a professional counselor may not be the best life-influencer, but would still be unlikely to encourage harm. 

Some say that Instagram has. There have been accusations against LLMs reported by CNN, Futurism, and MIT. In fairness, your corporeal friends could do that. See Is it Manslaughter, Does it Matter if it it's not? (April 2015). There is no guarantee that malice or indifference is necessarily only going to come from the technology.

Combine these stories and a theme evolves. People are increasingly dependent on AI, some are clearly Jonesing, some are frankly exhibiting addiction signs, some are demonstrating anthropomorphism or even objectophilia, and some are even trusting it to provide emotional counseling. To make it worse, this trust and LLM interaction appears most threatening to the humans who are in isolated, lonely, and even in need of support, services, and human interaction.

There has recently been mounting discussion about the impacts of social media. Some say it destroyed a generation, and others disagree. This may be much like masking during the Great Panic and no clear answer will ever come. But, the corollary to AI is worthy of consideration now rather than later. Is AI addictive, is that harmful, should there be guardrails, is there a solution?

Maybe I will ask my friend Claude after my date with Anthropic and my counseling session with GPT. Or, maybe I will just go outside and throw a stick with the dog? It has been a long winter and I am really just Jonesing for sunshine, green grass, and being laid back. Now that is a "hard habit to break." But perhaps that is just me. You go talk to a computer instead if you wish. 



Editor’s Note: Help is available if you or someone you know is struggling with suicidal thoughts or mental health matters. In the US: Call or text 988, the Suicide & Crisis Lifeline.

Globally: The International Association for Suicide Prevention and Befrienders Worldwide has contact information for crisis centers around the world.