Why do we do what we do? I was in a conversation that included some critique of an (allegedly) annoying marketing campaign. The speaker was annoyed and felt that the ad campaign was obnoxious and unproductive. She questioned the gathering "Why do they do that?" There was some agreement and further derision of the effort. I offered a simple answer to the query, however: "Because it works." Companies persistently measure marketing efforts. If an ad campaign is not working, the company will spend its money elsewhere. The point of the effort, the campaign, is that it works. I addressed spam emails similarly in Because it Works.
This came back to me recently when I was reviewing some cases. The subject matter was Expert Medical Advisors (EMA), appointed pursuant to Section 440.13(9), Fla. Stat. Two practices were noted from various appointment efforts. First, there is a practice of filing "notices" instead of "motions" for EMAs, and second there is important information that may be helpful to a party in getting what they want (a resolution) regarding such a desire for EMA appointment regardless of whether "notice" or "motion" is the selected tool.
When a motion is filed, clearly the parties are obligated
to communicate with each other. The obvious purpose of rule 60Q6.115(2)("that the movant has personally conferred or has used good-faith efforts to confer with all other parties") is for the parties to attempt to sort their issues prior to any need for
judicial intervention. The certification required for motions merely
facilitates the judge quickly acclimating to a particular situation.
In the motion setting, the filing party is required to enunciate whether
opposing parties have any objection to the relief sought.
Certainly, in the notice setting, that rule is not technically applicable. However, the party filing a "notice of conflict" is seeking to move
their client‘s issue forward. The party is seeking an order appointing an EMA. The District Court of Appeal analyses that excuse the necessity of a motion in this setting relieves the
party of the rule obligation to state the opposing party's position. However, making
such a statement will nonetheless facilitate the judge's rapid and clear understanding of
the nature of the situation. If opposing counsel does not object to the
appointment of an EMA, why not so state in the "notice?" Why not facilitate the process of obtaining that order?
If an EMA is to be appointed, the next immediate question
becomes who is appropriate for performing that service. Anyone who has
practiced in Florida worker’s compensation understands that the published list of expert medical
advisers is thin in some specialties and localities. I have been impressed with the attorney‘s inclusion of
suggestions (which with a statement regarding the opposing counsel’s position regarding opposition could
very well be stipulations) regarding the appropriate specialty the EMA physician should
possess. Something like: "The parties agree the appropriate specialty for the EMA in this case would be an orthopedic surgeon."
However, it is common that lawyers will instead state only the
required information, e.g.. “there is a conflict between the opinions of Dr. A and Dr.
B.“ In such a minimal statement, there is no edification regarding those physician's specialties, or what other physicians may be
involved in the case. Of course, it is possible that either party may lack full
knowledge of all physicians who have played a role (a physician may have been consulted as an expert adviser, but not be
listed as a witness, nor have any hands-on experience with the patient).
But, it would be very productive to at least the identity of those physicians who have evaluated and treated the claimant.
In any notice of conflict or motion for appointment of an
EMA, it would be very handy for the judge of compensation claims to know:
(1) whether the parties are willing to stipulate to the appointment of a particular physician. This is particularly helpful if the available population of certified EMA providers is exceedingly thin, and the parties are able to select a provider that could be certified by stipulation. This may be more of a "consensus IME" pursuant to section 440.13(5)(g), Fla. Stat., and would not even require an order.
(2) The community that is most convenient to the
parties (both patient and attorneys, for the purpose of discovery); e.g. "the parties agree that an EMA in __________ . . ." or "the most convenient location for an EMA would be in __________."
(3) if any of the EMA physicians listed by the state are
inappropriate for appointment due to their past involvement in the case, or the
past involvement of any of the physician‘s partners or associates; e.g. "the EMA list includes Drs. X and Y, who have previously treated claimant (or who are partners with Dr. A) and would therefore be inappropriate to perform the EMA."
(4) whether any of the EMA providers listed would be
inappropriate in this case according to the consensus of the parties. For example, in a
spine-related case, the parties may well know in their local community that a
specific physician on the list is a hand specialist, shoulder specialist, or knee
specialist, while that may not be obvious from the EMA list.
This all returns to the analysis in that
conversation mentioned in the first paragraph. Why did that company continue
with the advertising campaign that so aggravated the individual? Because the
advertising campaign worked. In the broader context of practicing law, it is
appropriate to follow the rules and to do what the rules require. However, if
there are actions beyond the rules that will “work“ and move your client's issues forward, then
why not similarly engage in those productive practices even though they may not be
required or mandated?
If you provide pertinent information, and fulfill your
obligation to bring the adjudicator up to speed, you may find that you receive
more rapid, cogent, and thoughtful responses. Those likely work to the benefit
of everyone involved by expediting the EMA order and by avoiding subsequent reconsideration of the appointment following later disclosure of critical information. The suggestions above may decrease the necessity for
motion hearings or status conferences. It is practical to anticipate and avoid delays related to a provider her or himself subsequently noting a conflict ("I have previously treated/evaluated the patient"). That disclosure could come weeks after the EMA appointment, and that is wasted time.
In a broader concept of
professionalism, there is never harm in more communication between adverse
parties. The requirement of 60Q6.115(2) makes it happen in the "motion" context, but it is good in any context. Communication is, at worst, educational and informational. The more we
communicate, the better we communicate, the more productive we can be. This is true as between counsel. It is true when seeking an order: communicate and move your client's issues forward. Not just because the rules require it in motion practice, but because in all contexts it works. That is the best reason to communicate, it works.
