Technology is a boon. Too many reading this will have lived their entire life in a world in which word processing is ubiquitous. A fair few may well struggle to remember a time when we did not complacently carry around super-computers in our pockets and remained connected to the world wide web incessantly. But, a handful may remember the old typewriter, the Dictaphone, and even the fax machine. Perhaps those were the "good old days?" These machines and technologies make our communication efforts easier, quicker, and we leverage this to our advantage.
With technology comes great power, the advantage. But with that power comes responsibility. With the benefits of technology comes our tendency to rely upon technology. There is an advertisement tagline that seems old hat: "What happens in Vegas stays in Vegas." That was coined in 2003 and has since become part of our culture. The tagline has inspired imitators, one noting that what happens on social media stays on Google forever." The point is that technology may inspire and enable us, but it may also memorialize what we do, and keep records perpetually, even of our mistakes.
Yes, we also make errors, that is human nature. And just as these technologies allow us to communicate more rapidly and inexpensively, there is a downside when we make mistakes. Mitch Ratcliffe famously said:
“A computer lets you make more mistakes faster than any other human invention in history...with the possible exception of handguns and tequila.”
That same speed and efficiency that benefits us can likewise burden us when we make errors. Our efforts are magnified and broadcast so effortlessly and efficiently, but so are our mistakes.
This came back to me recently when reviewing a series of pleadings and orders in a case. An attorney filed a petition on behalf of an injured worker. It named the employer as "ABC Corp." (note, the names have been altered), and the carrier as XYZ Insurance. Within a few days, XYZ filed a response to the petition explaining that XYZ was not responsible, and indicating that PDQ is instead. The response asked, "Please remove XYZ and amend filings to reflect PDQ only." The attorney did not file any response.
A week after that response was filed, the claimant's attorney filed a second petition. This one is also named ABC and XYZ. Whether the response had gone unread, or whether there is a reason for continuing to pursue XYZ is not known. Certainly, there may be good reason for a party to disagree with the position taken by some other party.
About three weeks after that initial petition, just days after the second petition, the Employer/Carrier (ABC/XYZ) filed a "motion to correct employer/carrier." This explained that an employee leasing company "leases employees to ABC" and thus this leasing company, QWE, is the appropriate employer. Furthermore, the motion says, JKL is the carrier for QWE. There may be redemption seen there. The first response said "not ABC/XYZ, but PDQ"; the motion said essentially "not ABC/XYZ but QWE/JKL."
The motion reflects that the two attorneys had discussed this situation (which is appropriate, see Rule 60Q6.115(2)("the movant has personally conferred or has used good-faith efforts to confer with all other parties"). The motion states that the two attorneys agree to this change, "claimant does not object to this motion." An order was entered the next day.
The order is lamentable. Instead of drafting a simple order on the issue, the assigned judge attempted to add information to what is apparently was a proposed order submitted by the Employer/Carrier. Of course, the rules forbid filing such proposed rules. Rule 60Q-6.103 ("proposed orders shall not be submitted unless requested by the judge."). However, many lawyers refuse to follow the rules. That order was served on the parties, as reflected in the OJCC database. And, to reiterate that it was served, the judge's staff signed a superfluous certificate on the document before sending it.
Thus, the problem was seemingly solved.
A week later, the claimant's attorney filed a third petition. In this one, the employer was named as "ABC Corp." and the carrier as "XYZ" (remember XYZ? the one that has been trying to alert everyone it has been named in error, an error that apparently everyone in the case agrees). At this point, there is perhaps no longer a suspicion that "there is a reason for continuing to pursue XYZ." The claimant's attorney had just days before agreed that XYZ be removed from the case.
This third petition added ABC and XYZ back to the case in the OJCC database. After the effort of an informative response to the first petition that was apparently overlooked or ignored, after the time and expense of a motion to correct, after the good faith consultation for the motion certification, after the entry of the cobbled-together order, the parties were right back where the case started, by the filing of this third petition.
Thus, two weeks after the judge's order correcting the employer/carrier to QWE/JKL, a second motion is filed to "correct the employer/carrier." This one was also accompanied by a proposed order titled "Order on Motion to Motion to Correct Employer/Carrier." (Sic). That proposed order was typed upon, entered, and essentially ordered the parties to pay attention to the order entered two weeks before and to "correct the employer and carrier." That is frustrating. An order that essentially says "read the last order."
The situation is a great illustration of the perils of technology. It is likely that the claimant's attorney is not intentionally reiterating the error. It is more likely that a computer in either some form or database is saving information. We know that the OJCC database, in the e-JCC function saves the name of the employer and carrier as the initial filing (a petition or a request for assignment of case number) presents it.
When corrections are made in the OJCC database, that will affect the information in orders generated by this office (but not the ones submitted by attorneys in violation of the 60Q rules, see Rule 60Q6.103(4)("proposed orders shall not be submitted unless requested by the judge"). But, when a party selects the e-JCC function to file a "subsequent petition," that form will populate with the data that was submitted with the first petition. For now, "what happens in eJCC stays in eJCC forever." The attorney has to remain aware of changes, has to pay attention to the data the form prompts, and has to make corrections to that data where appropriate.
Each time this attorney uses e-JCC to file a petition, the form will suggest ABC and XYZ. The computer will prompt the same data every time. It is up to the attorney to (1) know this, (2) pay attention to any changes that occur, and (3) correct the petition she or he is going to file. The attorney is expected to read and verify that what she or he is filing is correct. Certainly, the computer database might as conveniently instead pull data that has been corrected, and ignore the old ABC and XYZ. That is a software remedy that the OJCC is working on (maybe the program can be made more assistive). But, ultimately, no matter what the computer programs do for us or to us, it is our responsibility as attorneys to verify the accuracy and completeness of what we are filing.
Certainly, we all make mistakes. The point of this post is not to suggest otherwise, or to single out any particular attorney (the names have been changed to protect the innocent). The point of this post is to assist with "(1) know this." If you file petitions, then know this. If you defend petitions, then know this. And, if you find yourself in the process of changing the employer/carrier in a case, remember this and the obligation to review your work to assure that subsequent filings are accurate and complete.
Technology helps us, but it is fallible as are we all. It empowers us to do so much and to do it so much faster than we could in the dark ages (back in the 1980s). But it is a tool for us, not a substitute for us. We have to engage ourselves, verify information ourselves, and correct the errors that machines and software make. The attorney has to check her or his own work to prevent such errors. When we do not, it will cost everyone time and money that could be productively be put to work elsewhere.
