In 1960, Sam Cooke recorded What a Wonderful World. Mr. Cooke's lyrics, while also a love song, provided an illustration of the importance of knowing what is important. My first recollection of the Sam Cooke song is inexorably tied to John Landis' Animal House released in 1978.
Mr. Cooke leads us through a litany of things about which he "don't know much," such as "history, biology, geometry, trigonometry, algebra, a science book, French (he) took," and more. Periodically, he punctuates his lack of knowledge in those subjects returning to his simple truth, that he does know that if his muse loves him, "what a wonderful world this would be." I was drawn to reflect back on this Sam Cooke pronouncement recently when I received a Bulletin from the Kentucky workers' compensation system.
The June 24, 2020 bulletin comes from Commissioner Robert Swisher, a former Administrative Law Judge and Chief Judge in Kentucky. He reminds attorneys to be specific when identifying their electronic filing. Also, a "catch-all" is mentioned: "All Other Motions,” with the reminder that this is intended to be used only when there is no more specific, descriptive choice available. That is a handy reminder, which Florida also recommends. Rule 60Q6.108(g). But, the more interesting part of Commissioner Swisher's bulletin is a reminder of what not to file.
Commissioner Swisher reminds us that the Kentucky Rules preclude filing "notices of deposition, notices of physical examination, and requests for and responses to requests for production of documents." These are "not to be filed and served via LMS (the Kentucky electronic filing platform). And, as I read I thought if all lawyers followed the rules and paid attention regarding what "not to file" well, "what a wonderful world this would be."
You see, Florida has a similar rule, but compliance with rules sometimes wanes. Rule 60Q6.108(1)(c) says:
"(c) The following documents shall not be filed with the OJCC unless relevant to an issue to be heard and not more than 10 days but at least two days before the scheduled hearing: requests or notices to produce and objections or responses thereto, deposition transcripts, correspondence between counsel or parties, correspondence to the judge or the judge’s staff, subpoenas and returns of service."
Despite this prohibition, some have a proclivity to include a cover letter with every filing. Essentially, these say "Dear judge, enclosed is my motion." Of course, when the judge sees the document following thereafter, titled "motion for _____," she or he can pretty quickly discern it is a motion. The cover letter really adds nothing to the discussion. It merely takes up space during the filing (bandwidth) and then space on the servers forever (storage). It is a waste of time, bandwidth, and memory. And, more important, the rule clearly says not to file it. If every lawyer read and followed the rules, "what a wonderful world this would be."
There are other persistent examples. Lawyers file discovery requests, responses, and transcripts. I was astounded several years ago when I asked a group of attorneys why that occurs and they expressed surprise when I told them the rules preclude these practices. More recently, I spoke with an attorney who professed he was now "brushing up on the rules," and was "surprised with what I am learning." He is a lawyer with decades of experience, but just now studying the rules.
In the course of COVID-19's impact on workers' compensation as a community, I heard another state's official proudly explain how their state had "figured out" how parties could electronically provide exhibits needed for hearings, despite this pandemic. Florida and others have long both allowed the filing of trial exhibits and encouraged it. The electronic filing system in Florida has facilitated that for about fourteen years, and it has become ubiquitous.
But, the rule says that all those materials should not be filed until shortly (10 days or less) before the hearing for which they are (or maybe) needed. Rule 60Q6.108(1)(c). Some lawyers seem to file everything they ever receive, as soon as they receive it. Others seem to fail to file anything, even the day before trial unless prompted. Some judges provide a prompt, and others expect the lawyers to be responsible and professional. It is a tough choice for the Judge. Some lawyers even try to bring paper documents to trial for filing. We do not want your paper. We do not have the staff to scan it and upload it. And, currently, there is some potential for viral exposure from hard copies of documents.
More than ever, we need every proposed exhibit to be e-filed, and labeled as a "proposed exhibit. We need the lawyers to follow the rules. If every lawyer read and followed the rules, "what a wonderful world this would be."
Each item that is e-filed has to be looked at by the OJCC staff. Lawyers should remember that there are items which the lawyers need to see, to exchange, to discuss, that do not require the judge, the mediator, or the OJCC. But, when they elect to file those items, someone at the OJCC has to look at them. That takes time and distracts from the documents that actually do require our attention. In fiscal 2019, this Office received 2,395 filings daily. Imagine if nothing superfluous was filed? What if no cover letters were included? A great deal of time could be saved, and "what a wonderful world this would be."
What if everyone followed the rules? How would the workers' compensation practice look different? The primary point would likely be far fewer motions filed. Lawyers would actually, personally, communicate with each other before filing a motion. I recently received a very detailed motion. The opposing attorney filed an equally detailed response. They each made excellent points. The movant telephoned for a hearing date (but the motion made no request for a hearing, Rule 60Q6.115(4)).
A few days later, there was a call asking that no order be entered. They explained that the two lawyers had now spoken and "worked it out." Perhaps if the parties had spoken as frankly and thoroughly before filing, there might have been no need for motion or response? Perhaps the hour I invested researching the law on their motion (something neither the motion or response provided any citation or reference to) could have been invested into someone else's dispute, settlement, or situation?
Back to Mr. Sam Cooke. It does not really matter if you know much about discovery, pleading, settlement, or more. If everyone just read and followed the rules "what a wonderful world this would be." And, it is troublesome that anyone would need a periodic reminder as simple as "follow the rules." In a professional world, reading, comprehending, and following the rules should be ubiquitous, effortless, and commonplace.
Make it a wonderful world today. Read the rules. Follow the rules. Train staff to support and help you. Do professionals really need a memo that says "Follow the rules?" Apparently, some lawyers do, but that is perhaps not the same question either.
