AI Incognito?

The year draws to a close. December 31, 2023. In 2024, I will mark a dozen years of memorializing thoughts on this platform. When I began, there was a spell-check, but it was not so reliable. Over those years, I have written extensively about Artificial Intelligence and its potential to impact us. I noted some examples of that in a post in October, AI is a Tool (October 2023). I first touched on AI nine years ago in Attorneys Obsolete (December 2014).

Without a doubt, artificial intelligence was the news of 2023. It impacted the law, lawyers, and the

In any instance, lawyers have a duty of Candor to the Tribunal (April 2018). That is broad, simple, and yet complex. In the broadest and simplest context, it is a throwback to J.K. Rowling's 2003 Harry Potter book, The Order of the Phoenix. The malicious evil there was embodied by a teacher who punished by making a student repeatedly scrawl "I must not tell lies." There you have it, in its simplest iteration. Lawyers need to be accurate. See also Dead Men Tell no Tales (February 2018).

There is an obligation to tell the truth. This is discussed in The Representations We Make (March 2019). It is critical and simple that lawyers must tell the truth. That said, we will all make errors, and mistakes. I heard an attorney hypothesize once, "Wouldn't it be ironic if an attorney made a misrepresentation of fact in a case in which she/he was alleging the injured worker should forfeit all benefits due to misrepresentation?" That is indeed interesting.

The breadth, and complexity, come from the affirmative duty to correct mistakes. See Candor, Omission, and Persuasion (October 2021). Beyond telling the truth, lawyers are obligated to remain cognizant, alert, and conscious of their representations. If a lawyer makes a misrepresentation, it is on the lawyer to notice it, and to inform the tribunal of the error.

That rule was critical for two attorneys, Harry and Lloyd, who practice law in New York. See Mamma Always Said (June 2023). These two filed a memorandum in Federal Court. They had done their legal research with Artificial Intelligence and filed the hallucinated results with the court. Funny? perhaps.Unfortunately for them, many judges "do not have a sense of humor we're aware of." (Men in Black, Columbia, 1997).

The Judge entered an order to show cause. The lawyers were afforded an opportunity to explain their citation to "six fictitious case(s)" that the AI made up. The AI, it seems, is quite susceptible to hallucination and imagination. Reuters reported that the judge ultimately ordered each of the lawyers to contribute to an aggregate fine of $5,000.00. That is likely "real money" even in the big city.

The story, and sanctions, were covered by CNBC, The American Bar Association (an informal, voluntary attorney group), CBS, The Maryland State Bar, The Wall Street Journal, Forbes, and more. AI was the talk of the legal community. I have heard AI here, and AI there. I wonder if there is a lawyer in the world who is not aware of AI and its tendency to make up answers. Some would argue that the entire legal world has been on due notice since June 2023. 

Well, Zachariah C. Crabill, is apparently quite aware now. Colorado Politics reports Disciplinary judge approves lawyer's suspension for using ChatGPT to generate fake cases. That is significant. Suspension means not practicing law, earning income, or serving clients. Mr. Crabill used a template for a motion and then sought to "bolster his legal citations" using ChatGPT. ("Danger Will Robinson," Lost in Space, 1966 - an AI Robot warning a human . . . in 1966). 

Mr. Crabill's AI reliance was, from the lessons learned last June by Harry and Lloyd, not wise. However, Mr. Crabill added the "case citations to his brief without verifying their accuracy." And he proceeded to hearing. But, through some inference, suggestion, or intuition, he began to doubt. He was concerned enough about the falsity of those citations that "he texted his paralegal" and expressed the concern that "all of my case cites from ChatGPT are garbage."

Mr. Crabill then sought to do the actual work, real research, in hopes of "find(ing) actual case law in our favor now to present to the judge." The hearing began, and the judge first raised the issue of the citations and authority. Faced with this challenge, Mr. Crabill would have been well served to have read Don't Double Down Dummy (June 2017). Or, he might simply have recalled Wil Roger's famous "If you find yourself in a hole, stop digging." Too late. 

Mr. Crabill decided that the best course would not include admitting the error and seeking to correct it. Instead, he told the judge that the error was made by "a legal intern in this case, who, I believe, got some mistake." It appears that Mr. Crabill did not prevail on the motion, nor a subsequent motion that was "denied on separate grounds from the 'fictitious case citation'" denial. It appears from this that the judge was gracious in allowing the filing of a second motion after the "faking" and the misrepresentation. The client still lost, but at least that was not because (directly) of the misrepresentations. 

The attorney was disciplined with a "two-year suspension, only 90 days of which Crabill would serve as long as he otherwise completed a probationary period." That is three months of no legal practice, no client service, and likely an interruption in income. He reportedly also lost his job over it. That is a serious reminder that (1) ChatGPT is neither flawless nor reliable, and (2) we must not tell lies. If we make a misstatement, own it. Admit it. There is a real power in admitting mistakes and simply apologizing for them. Step one: Quit Digging. Do Not Double Down!

That life lesson in Colorado has not made the national news. It made the Volokh Conspiracy. The Business Insider covered the story when the young lawyer was fired for his transgressions. Fortune picked up the story as well. These are widely read, but one might certainly miss coverage that is not on the national news feed with the important stories of the day concerning the real news like Ye, Kim, football, and who was seen with whom and where. I remember when tabloid sensationalism and hyperbole were actually looked down on. Thank you social media for al you've done. 

So, anyone might have missed Mr. Crabill's story. Perhaps, even with its national coverage, someone might have missed Lloyd and Harry's sanctioning in New York last summer.

ABC News reported this week that "Former President Donald Trump's onetime fixer Michael Cohen" apparently did not see any of those stories. He is striving "for early termination of his supervised release." He hired attorneys to represent him. Then, he did a little old-fashioned legal research in the new and modern way with Google Bard. That program provided him with "invalid citations" which he provided to his attorneys.

Might he have missed the stories about lawyers in trouble for AI hallucinations? No, Mr. Cohen asserts that he did not know Google Bard was AI. He asserts that he "mistakenly believed Google Bard 'to be a supercharged search engine, not a generative AI service like Chat-GPT.'" But, Mr. Cohen is a former lawyer. Will the judge in his case hold him to the standard one might hold a lawyer? Could the judge perceive the "I didn't know" in the same light as experienced by Lloyd, Harry, and Mr. Crabill?

The lawyers to whom Mr. Cohen provided his hallucinated citations will ultimately be responsible for having provided them to the judge. One of those attorneys, Mr.Schwartz,  has explained he "would have researched them" before providing them to the judge, but did not because he believed those citations came from another attorney ("found by Ms. Perry."). Some might see that as similar to the original Harry and Lloyd scenario.

Mr. Cohen is famous. His AI reliance has made ABC News, the Associated Press, the Washington Post, CNN, NBC News, Fox News, NPR, The New York Times, and even Yahoo. There are perhaps those who missed Harry and Lloyd last May. Some may have missed Mr. Crabill's suspension and termination. But, perhaps every lawyer in the world now knows two things: (1) artificial intelligence hallucinates, and (2) you can get in trouble by relying on it.

Every lawyer should also know a few additional things. (3) Ignorance is no excuse; (4) "my partner (associate, law clerk, etc.) did it is not an excuse; (5) judges are seemingly unimpressed and unforgiving on misstatements; (6) the potential detriments are noteworthy and expensive; (7) Lawyers have the obligation to correct misstatements (think about whether Mr. Crabill would be suspended if he had first raised the hallucinations and sincerely apologized); (8) the lawyer who signs a pleading is responsible; that lawyer has a duty.

With every story that is published, with every blog post written, the "I didn't know" will likely find less forgiveness. The press coverage has now been so broad that "I didn't know" may strain belief in the eyes of some. When is it time for lawyers to recognize the threats of AI? Yesterday.

Don't be Harry, Lloyd, Mr. Crabill, Mr. Cohen, or Mr. Schwartz. Lawyers are responsible for their representations. Do your own verification of citations and authorities. If there is a misstatement, own it. With AI, there is convenience and perhaps assistance. There is also challenge and potential, good and not-so-good. Be aware. Be cautious. Be responsible.

Copyright Infringement?

There must be something in the air this week. The news pulls me back to how we use the works of others. There is significant coverage of the plagiarism allegations at Harvard. See Challenges of Service (December 2023). The Boston Globe put an interesting headline on it later that same day: "Harvard strains to find other words for ‘plagiarism’."

Billy Shakespear wrote, "A rose by any other name would smell as sweet." According to Poem Analysis, this "speaks to the power, or lack thereof, of names" or labels. A great line uttered in a much later movie played on that theme: "A rose by any other name would wither and die?" (Alan Swan, My Favorite Year, 1982). Does it matter what label we hang on actions, or is it the action itself that is critical to our analysis?

There will be a new President at Harvard in 2024. The depth of the challenges that have been created by the behavior now being revealed will not leave any alternative. The hypocrisy of that school's punishment of student plagiarism will not stand the scrutiny of the present. Some of the corporation board may likewise elect to move on in 2024. There are interesting articles on State of the Union, The Messenger, and Analying America. At its root, the turmoil and scandal are about using the published works of others without credit or compensation.

That discussion leads to how computer programs use the work of others. The New York Times filed a lawsuit against artificial intelligence on December 27, 2023: "for copyright infringement." This is not the first lawsuit alleging misuse. The article notes that some famous writers, such as John Grisham, have previously filed a lawsuit alleging "A.I. systems had absorbed tens of thousands of books."

That controversy involves some familiar plaintiff names and some authors that I have never heard of. Descriptions of it focus on "absorbed" material and use words such as "ingested." The theme seems to be that the AI programs have read the books, newspapers, and more. The Times notes that "The boundaries of copyright law often get new scrutiny at moments of technological change." There is seemingly evolution in the way society and the law deal with technology infringing on our existence.

The allegations mentioned by The New York Times are not seemingly about copying or republishing material. Instead, the programs have apparently been used "to train artificial intelligence technologies." Those "automated chatbots . . . now compete with the" Times "as a source of reliable information." That may be an overstatement as to the nature of both the chatbots and the Times.

In October, CNN reported that thousands of books were being read by AI programs. It says that "Books help generative AI systems with learning how to communicate information." The CNN article quotes authors and their thoughts on a computer reading their text and using that experience to learn how to better formulate ideas and communicate. The allegation is that such use of material to learn is copyright infringement.

What is copyright infringement? The federal government provides a definition on its website:

"What is copyright infringement? As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner."

The literalist in me fails to find anything in that definition that precludes reading a book (must I have Mr. Grisham's permission to read his book?). Perhaps I am defensive here, or even biased. You see, I have innocently, or in retrospect perhaps maliciously, read many books, articles, and even screenplays over the years. I read a great deal. With each piece I read, I better grasp language, structure, punctuation, and more (some might argue that in fact, I do not better grasp anything, ever, but I digress). It is fair to say that I learn with each manuscript I ingest. Am I violating Mr. Grisham's copyright because I read his book?

Some might suggest that books are written to be read. My old friend Horace Middlemier* has argued with me about that. He thinks books are meant to be displayed. He keeps many glass-front bookcases in his law office. They are full of great works he has purchased at yard sales and flea markets. There are law books and literary masterpieces. 

I have known Horace many years and can assure you that (1) he has not read them, and (2) he would not understand War and Peace if he did wade through it. Horace displays the books so that clients, friends, and acquaintances will think he is intellectual (instead of ineffectual). He is using the books to mislead and to disguise himself. Much as that seems inappropriate, there is nothing in that copyright definition above that makes such use illegal or inappropriate.  

If we learn from text, syntax, word use, punctuation, and beyond, are we violating copyright? If our communication and expression are influenced by the style and panache of writers, are we violating copyright? For that matter, in these actions are we plagiarizing? Go ask Harvard. If copyright protects the author from my growing or learning through exposure to their work, is it nonetheless acceptable under the "fair use" exception or the education exception? Or does education only apply to human education?

Are AI "seek(ing) to free-ride on The Times’s massive investment in its journalism?” Or, is AI merely ingesting written material, reading it, in the very manner for which it was intended and published? The very manner for which it was sold?

The Pepperdine University Graphic shares some intriguing thoughts on creativity. It quotes Steve Jobs saying “Picasso had a saying, ‘Good artists copy, great artists steal.’” It accuses Andy Warhol, Quentin Tarantino, and Led Zeplin "drew inspiration from others." It reminds that Oscar Wilde perhaps said "That’s because imitation is the sincerest form of flattery," or perhaps he did not say that. Perhaps Oscar Wilde was "inspired" to that by someone else? Is creativity capable of protection? You can keep me from performing Beyonce songs, but can you prevent me from mimicking her style?

Perhaps publishing the appropriated thoughts of others without credit or attribution is plagiarism? Perhaps it is copyright infringement? Perhaps publishing is different than reading the thoughts of others and in the process coming to some similarity or even singularity with them? Are my dance moves appropriation or flattery (the answer cannot be flattery. Trust me, nothing in my moves is flattering in any context)

The courts will take time to work through whether reading a book to train or educate oneself is copyright infringement. With each speech I deliver or post I write, I am undoubtedly channeling style, organization, and word choice learned over thousands of hours enjoying the works of others. Their work product has indeed been ingested into my intellect, for better or worse, intentionally or not. As I communicate, with those acquired contributions, am I violating someone's copyright? Are we all?

A great poet of our time, Don Henley, noted "The lawyers dwell on small details," The End of the Innocence, Geffen 1989. He continued "Offer up your best defense, But this is the end, This is the end of the innocence."

I will watch the progress of the Harvard debacle, and I will learn in the process. I will watch the progress of the Grey Lady's challenge to computers reading its material and "learning." I will undoubtedly ingest a great deal of news on the topics in days to come. Will that change me? Will I learn? In doing so, am I violating copyrights? Or, am I consuming and growing in precisely the manner that the authors and producers intended?

In the end, the biggest question is perhaps whether people and computers are subject to the same laws, interpretations, and nuance. No fears, the lawyers will clear it all up in time. 

*Horace Middlemier is a tool, a contrivance, an "everyman." He does not exist and never has. Any resemblance between Horace and any person real, imagined, expressed, or described is mere happenstance and coincidence. His existence is likely the result of the author's ingesting and extrapolating of the works of some other writer long ago and long forgotten. For any offense or insult felt by any author regarding my employment of this tool, I apologize. 

Challenges of Service

A recent article in the Wall Street Journal focused on the challenges faced by The Old Miss of the North. A great many people thrive on their former affiliation with Harvard. The reputation and name carry a great many through their daily challenges. It is often interesting that attendance at such schools is the only credence an expert witness can bring to the table. See Eliciting Effective Testimony (July 2014); Lyric Choices (July 2023); Magic Words (February 2021).

No, to be credible, one needs to be able to both express opinions and demonstrate the logical path that led from point "A" to that conclusion. Too often, expert witnesses are quick to offer the conclusion and rely on Mom's old saw "because I said so" to support that outcome. When that is not enough, I have often seen the "And what school did you attend?" I am certain that many a judge and jury do accept such illogic on the strength of someone's apparent academic background. However, it is more likely that the quality of the testimony, the evaluation, and the analysis will prevail.

Presently, Harvard is facing challenges in the realm of public perception. The Wall Street article discusses this in some depth. Harvard is an educational institution that is exempt from both state and federal taxation. According to its website, it is a 501(c)(3) corporation. The Board of this corporation is viewed by some as having plenary power, subject to few (if any) checks and balances. In fact, "One faculty member said the corporation answers only to God."

The public perception issue is perhaps centered on plagiarism allegations. However, there have also been some criticisms regarding admissions policies that discriminate based on race. And the reaction of Harvard and its President following the 2023 "attacks on Israel," and Harvard student reaction. Some student organizations have been accused of blaming Israel for those attacks. Some felt that the school President should perhaps take a stand in condemning violence and vitriol.

As an aside, Harvard was founded by the Puritans in the 1600s. It is an institution that has significant religious roots. See Christianity and the American University. That is a "citation," and it is appropriate in instances where the thoughts of others are used. Academics, in particular, are very focused on the idea of citing sources, and particularly in giving appropriate credit in such settings. The President of Harvard has been accused of not being careful in that regard.

Thus, God is an interesting element of the Ivy League. There are God references regarding "Almost all Ivy League institutions." Some may view schools today as less than God-focused. Some conclude that schools have drifted from their roots. See Ivy League Faith (that is another of those "citation" things you may hear about. Academic institutions frown on inadequate citation of the thoughts of others. 

Some think that academics should be held to a standard. They note that plagiarism is widely forbidden in American education. The Department of Homeland Security defines and discusses plagiarism. It says "Plagiarism means you take someone else’s work or ideas and pass them off as your own." It suggests that synonyms are "cheating or copying," and explains that schools forbid it "because colleges and universities value honesty and academic integrity from their students." Might one expect such virtue in professors and even university presidents? Might a Board expect it at a university generally?

What does this have to do with workers' compensation? Well, a great many in this community are involved with non-profit corporations. They contribute to and support them. They lead as officers and board members of an array of fine organizations that are part of the very fabric of this community. And, despite the perception of the Harvard faculty member (above), such boards and their members perhaps do not answer exclusively to God.

No, corporate boards answer to authority. One that is pertinent is the Internal Revenue Service. The status as a "non-profit" conveys a great benefit to a corporation, whether charity or educational. The current corporate tax rate is 21% according to 1800Accountant. The state of Massachusetts also has a 6% tax rate. While I am no accountant (should every corporation have an accountant?), those might result in a significant reduction in operating funds if a school or other non-profit were to pay taxes.

The Wall Street Journal says that Harvard has an endowment of $50 billion. At 1%, that might earn $500 million annually. The 21% of that is about $105 million (imagine if it is earning 10% instead; $5 billion in earnings and $1 billion in annual taxes). Simple income tax liability could be a challenge. Any conclusion or definitional change that threatened the tax-preference status might be serious. 

Some politicians have proposed further taxation on the "wealthy." One who is coincidentally from Massachusetts has suggested an "ultra millionaire tax" of 3% to perhaps 6%. This is described as "A small tax on the great fortunes of more than $50 million." So, would such taxation similarly affect the "ultra" institutions? Would Harvard pay $1.5 to $3 billion on that endowment? Perhaps not so as a non-profit, but might that change in the scheme as proposed or as ultimately passed?

Any tax-exempt organization answers to the IRS. Thus, at a minimum, there is some accountability for any non-profit. Are there other potential challenges?

Corporations can be sued. The legal system allows people who have standing to file lawsuits and seek damages. The Boston Bar Association Journal published an article explaining that such lawsuits can be "direct or derivative claims." The law of the jurisdiction where the entity is incorporated may be very important in the derivative, and the law of the jurisdiction where damage occurs may also be. So, if you serve on the board of a non-profit incorporated in Tennessee, you likely need to understand your potential liability under Tennessee law (just an example, Harvard is not likely incorporated in Tennessee).

According to Cornell University (another Ivy League university), there is a legal tool called a "derivative suit." It describes it: 

"A shareholder (stockholder) derivative suit is a lawsuit brought by a shareholder or group of shareholders on behalf of the corporation against the corporation’s directors, officers, or other third parties who breach their duties."

The Boston Bar article acknowledges that laws differ from state to state (see Tennessee example above), and explains that

"under Massachusetts law a shareholder is required to make demand on directors in every case alleging derivative claims on behalf of a corporation."

Any shareholder might assert claims, derivative claims, on behalf of a corporation for

"Wasting, mismanaging or misappropriating corporate assets, resulting in a general diminution of the value of corporate stock, assets, or cash on hand"

The shareholder might pursue the members of the board for damage that their decisions brought to the corporation. This is why boards rely heavily on their accountants and other experts to ensure they remain "between the lines." This is why every corporation has an accountant. Of course, every corporation also has insurance coverage for such challenges or lawsuits. The US News explains that this is

"errors and omissions (E&O) insurance that protects company executives and board members when they are sued for mismanagement, misrepresentation, or other breaches of duty or regulations."

Anyone serving on a board might be interested in the details of what their corporation's particular policy provides, covers, and excludes. If you serve on a Board, have you inquired about such coverage?

The Boston Bar article explains that to bring a derivative suit under Massachusetts law, the "plaintiff must have been a shareholder (or member or partner)" at the time of any such actionable decision. This is a worry of any "for-profit" corporation. But, there are suggestions out there* that such a lawsuit might be maintained by members of charitable, non-profit, organizations. That could potentially include students and others. Might faculty have similar standing? What others damaged by the (in)action of a board might have standing?

If a non-profit is sued, what are the expenses associated with defending itself? If a shareholder prevails, is there potential to collect damages? Attorney fees? Other expenses?

Can a private board manage without regard to the members? Is it appropriate for a board to self-perpetuate with "current (board) members select(ing) new ones" as the Wall Street Journal describes the Harvard model? In any non-profit, there may be challenges with "insularity," engagement of members, and the challenges of fiduciary duty. Cornell explains that means

"Directors of corporations, in fulfilling their managerial responsibilities, are charged with certain fiduciary duties. The primary duties are the duty of care and the duty of loyalty."

Directors have to act in the best interest of the corporation. That is a "duty of care" that requires directors to be informed. Directors "may not simply accept the information presented," but must be inquisitive, critical, and focused "as to protect the interests of the corporations and its stockholder." It is an immense responsibility. Though service on a non-profit board may never rise to the pressure and challenge illustrated in the Harvard example above, such service will persistently be challenging nonetheless. 

As a volunteer serving on a non-profit board, what protections are provided? What access do board members have to the expert opinions of the corporate accountant? What access do members of the organization have to leadership, to candidacy for leadership, and to management of the company? Are questions answered? Does the Board explain its vision, management, and decisions? Are the decisions defensible? Is the leadership sound? Are officers selected for ability and responsibility, or are other agendas prioritized and pursued?

The Harvard example is newsworthy, and "plagiarism" is a headline that might draw significant readers. But, in a broader context, might the members and directors of innumerable non-profits find edification and introspection in the example?

*Kusiak, Sarah R. “Case for A.U. (Accountable Universities): Enforcing University Administrator Fiduciary Duties through Student Derivative Suits.” American University Law Review 56, no. 1 (October 2006): 129-176.; Student Derivative Lawsuits, Adam Kyle Kaufman, The Yale Law Journal, Vol. 115, No. 6 (Apr., 2006), pp. 1471-1479; Brenda Boykin, The Nonprofit Corporation in North Carolina: Recognizing a Right to Member Derivative Suits, 63 N.C. L. Rev. 999 (1985).

You are Going to Be OK

Recently, in The Value Exchange (October 2023), this highlighted a younger worker who had thoughts about the challenges of a 9 to 5 world of work. It is not easy to make ends meet in this world, and it it is an uncertain place. There are times when circumstances beyond one's control can make the paycheck-to-paycheck existence challenging. There is also too much tendency to see this as a "today" problem.

There are some suggestions in that October post regarding the manner in which one must bring value to the table. There is discussion of the economics that are involved in any employer paying this wage or that, and how the basic economics of employment work. In the end, business exists to generate a profit. That occurs when expenses (including labor) are minimized and revenue (sales) are maximized.

The younger worker took to the internet again last week. Business Insider reported that she has been laid off. That 40-hour per week job was exhausting and demanding, but she is now troubled to have lost it. The truth is that being young has many fantastic advantages. Unfortunately, there are also many challenges that have to be faced as well. I graduated back in the early days of the Pleistocene era. It has been a long time, and mostly I miss the wooly mamoths and others who became extinct as the earth warmed, ice sheets receded, and the climate changed. There have been "no less than 11 Pleistocene ice ages, interspersed with more temperate intervals called "interglacials.'" There were not so many humans back then, and no airplanes, automobiles, and electricity. Despite all that, the earth warmed nonetheless.

Back in those days, graduating from college, there were a select few who got "the job." That information sticks with you. There were a handful of companies that interviewed on-campus in my day, and everyone wanted those interviews. They were coveted. And, they were in short supply. I did not merit such an interview. One of the companies destributed snack foods. This job came with a notable $84,046.81 starting salary (inflation adjusted to 2023 dollars). 

Many idolized and dreamed of that interview. Another was in the food service industry. Its interviewers bragged to applicants that each of its managers who stayed for 30 had retired a millionaire. It too had a significant starting salary. A third I recall was a marketing job that involved a household name of that age, had a stellar starting salary, and offerred a company car! That one was the most coveted of all. None of them interviewed me. Those opportunities were for others.

I was much more social in those days. As it turned out, I knew someone that got an opportunity at each of those three companies. The foodservice opportunity turned out to be a daily grind that required near constant attention and monitoring. It was a 60+ hour work week that required periodic infusion of elbow grease by the manager in order to meet numerical goals. In essence, I was told that labor costs had to be minimized in relation to sales. The manager's pay was tied to that and other ratios. The work was hard, the lifestyle was exhausting, and the fortunate one I knew lasted less than a year in this coveted opportunity.

The person I knew with the company car job lasted longer. But it was not a career job. The tasks involved included making personal contact with retailers in a reasonably large geographic area. The responsibility was to present at retail outlets, examine the marketing materials (displays) on store shelves, placement of the product, and to strive to compete with other companies labels for shelf-space, placement, and exposure. The demand was for a certain volume of store contacts per week. This was easy in big towns, but involved lots of driving to smaller ones. The life on the road in that company car, the long hours between cities, led my only acquaintance to abandon the opportunity, about three years post-graduation as I recall.

The snack-food opportunity? This one was the most physical. The job had similarities to the marketing job above, but included the actual delivery of the product. The new graduate that I knew working for that company described starting the workday before dawn driving to a warehouse. There, a van was picked up, loaded with snack foods. Before the traffic started, this new graduate would travel store to store re-stocking the product. Some were major retailers, some were convenience stores. The hours were long, there was lifting and moving boxes, and it turned out to be less glamourous that advertised.

No, I did not get any of those opportunities. I took a job in restaurant management when I graduated. I was on a significant salary in a small company that operated five units. In a short time, I had responsibilities for one store, and secondary tasks involved in two others. I went to work every day (7 each week) at 10:00 and opened that primary store. My days ended when I locked it up each night, by 9:00 most weekdays, but usually more like 11:00 on weekends. There were opportunities to sit periodically, and the work was less elbow grease than many. But the hours were expansive.

I quit that job after about a year, my focus was on law school. I took jobs then that generated more cash in an immediate sense, and promised less future growth. It was a sound economic decision. I went to work for a defense contractor that was concluding a project and needed additional skills. I learned a great deal about computers and management in that 8 to 5 job. I soon convinced them to let me make it a 7 to 3 job, with no break for lunch, I would then leave work, change in my car, and report to a pizza delivery company for the dinner rush. Most nights, I was off work there by 7:00 p.m.

In all, I worked like that for two years before starting law school. Intermixed were shorter stints working as a courier. I learned a lot about being an independent contractor there. I also did some cooking at a competing pizza company, and some basic bookeeping at yet another place. In short, I spent all of my time generating income, and hit 60-70 hours virtually every week. It was exhausting, demoralizing, and frankly motivating.

I do not regret any of those exertions or opportunities. I learned much in those days. I met many interesting people. And, like me, they were all working more than one job. They all had goals and aspirations beyond what they were engaged in. I remember a lady at the pizza company who worked full time for the Navy in the "goverment service" role. Those folks made admirable money back then. She would make pizza 2-3 nights per week. I questioned her once and she explained that was how she made her car payment (she drove a nice convertible). She was making a choice between free time and an admirable, showy, car.

Another of the people I came across in those days was an engineer at the defense contractor. I knew from college that engineers made great money. I came to find out that his job was, from his perspective, a daily grind of processing a cascade of numbers, variables, and prognostications. He found the work boring. Attending a party he hosted, I later learned that he and four other engineers from that company were roomates in house worse than I had seen in college. Their economic status did not allow them to rent an apartment alone, or to avoid the challenges of a commute.

There are a multitude of such stories littering my path from the days when the ice sheets began to recede. I have known many young lawyers who face the same kinds of realization, recognition, and frustration with the "real world." Part of being young is the vast spread of opportunities that is before you. And part of it is the realization that there may be a great deal of work you have to do to reach the benefits of those opportunities.

I graduated law school and found out that is not a easy solution. I started practicing law making a bit less than I had earned in the restaurant business. See, there is supply and demand. Many law school graduates back then (supply) and limited opportunities (demand). There is no easy answer. There are jobs with high demand, but ask yourself why. Are they great places to work, with low turnover, and minimal frustration? If they are, then they are retaining all their team and are unlikely looking for you unless there has been a retirement.  

There is a tendency to think that those who get the great opportunities are indeed fortunate. But, in my experience, it turns out that those glamour jobs with their promises and perks may turn out to be a poor fit for many. The young lady from the world of viral video posted about being laid off. She asked, frankly, "can someone tell me im going to be okay !!!!"(?) and expressed angst and frustration. Yes. you are going to be okay. Time will improve the outlook. Hard work will eventually pay off. And yes, there will be disappointment and frustration along the way.

She then noted she might have to take work "as a nanny or a server while she" soguth to again leverage her college degree and marketing skills. That is the right tack. The truth is that many people who have come before you have worked where and how they could in order to pay those bills. They have found ways to gain knowledge from those jobs, to make contacts, and to remain focused on long-term goals. Good front-end advice is to resist the urge to burden yourself with student loans. Those debts can be a millstone around your neck for a long time. Though many will see government give them a free lunch to relieve that debt at taxpayer expense, it is a fools gamble to assume you will enjoy such a gift. 

Lay-offs will remain a reality. Under-employment will always exist. There will perpertually be those you perceive as "the lucky" or the privileged. But, you are not the first, you will not be the last, and your hard work will eventually bring you rewards. That is the best advice for the young. There is no value in old folks lecturing about rose-colored retrospect. The value we can deliver is empathy and encouragement.

We have all had less than ideal jobs. We have all had disappointments. But focus on the future while you learn from the past. Build skills. Expand knowledge. I know people who look for full-time employees throughout their day. One told me once that she finds barista's a great tallent pool. She can observe their demeanor, skill, and personality. She is essentially auditioning new members for her team with every coffee she buys. When you do your job, are you taking advantage of those opportunities to audition?

The fact is, being young has always presented challenges. Getting started in this world has always required sacrifice and investment (in yourself). The world today is not different. The challenges you face are not unique. Your success will come through your hard work. Yes, Virginia, you are going to be o.k.

Jeffrey Appel Passes

The world has changed significantly regarding our access to information. What used to require research and often legwork can now be far simpler. Information travels at the speed of light and is at our fingertips. It is therefore troubling to learn that news has nevertheless eluded you. I received a call several weeks ago informing me of a rumor that a workers' compensation attorney had passed. I tried for several days to verify that, but the Internet was silent. For whatever reason, that attorney came to my thoughts this morning, and the Internet was more helpful.

The Florida Bar now lists Mr. Appel as deceased. 

I had known Mr. Appel for many years, though I never ran across him in my years of practice. The last I knew, he was working at Dickstein Law, a criminal defense firm. His profile on the firm website provided a history of a Florida native from Stuart, education at the University of Florida (B.S. Sociology, M.S. Sociology, and J.D.). He soon departed his first legal employment and founded a firm representing injured workers in Lakeland, and later opened offices in Tallahassee and Ft. Lauderdale. The site notes that "In 2022, Mr. Appel merged his firm with Dickstein Law."

The law firm site listed a variety of accolades including an “AV-Preeminent” rating, service to The Florida Bar Workers’ Compensation Section (Executive Council member and Editor of The News & 440 Report), and certification as a mediator. The biography notes Board Certification "in workers’ compensation from 2008 to 2022." There is much to admire in Mr. Appel, and reading the information there is a recurrence of change in 2022. 

Incidentally, this morning, Martindale Hubbel lists Mr. Appel as AV-rated. That curiously makes twice in a week that I have found a lawyer with a disciplinary background so listed by the Martindale service. See  Reproval for AV Preeminent Lawyer (December 2023). 

The Florida Bar member profile provides some guidance on change. On September 14, 2022, Mr. Appel was suspended by The Florida Supreme Court for 90 days. Case No.: SC22-833 Lower Tribunal No(s).: 2022-90,061(OSC). On December 22, 2022, Mr. Appel was suspended for another 90 days, to begin upon expiration of the already-existing 90-day suspension. Case No.: SC22-1679 Lower Tribunal No(s).: 2022-30,566 (10A). The details are sparse. One of the orders mentions the Florida Lawyers Assistance (FLA). 

In July 2022 court filings, Mr. Appel informed the courts that he suffered from Alcohol Use Disorder (AUD), a "disease" and not "a character defect." The filings explain issues about addiction, relapse, and more. There is a discussion there of the impact on life, the challenge of a "recovery process," and the impact of potential disciplines the Court might impose. The allegation was that granting the then-proposed 91-day suspension would "permanently put him out of the profession and out of business."

In 2017, Mr. Appel was identified in the Lakeland Ledger: 

"A workers compensation lawyer in Lakeland recorded a blood alcohol content of .398 on Wednesday — nearly five times the legal limit of .08 — after crashing into a Lakeland woman's car, the Polk County Sheriff's Office reported." 

That is a significant content. The Cleveland Clinic notes that a level over .30 presents a likelihood of alcohol poisoning, a potential threat to life, and other challenges. A level over .40 presents the potential risk of coma and death. The Ledger story is troubling, as it was back in 2017. He was admonished by The Florida Bar then, and was addressing concerns with alcohol. The Florida Bar file 2017-30,809(10A). Piecing together here and there, it is clear that Mr. Appel faced some challenges. 

I was privileged to know Mr. Appel. I found him engaging and a student of workers' compensation law. He was, as are we all, an imperfect person. But, he was an advocate for his clients and strove to make the workers' compensation community a better place through his service. It was in his participation with The Florida Bar Workers' Compensation Section that I met him. I had opportunities to work with him and to collaborate on his efforts with the News and 440 (as noted by current chair Paolo Longo back in 2019). 

I lament that Mr. Appel, a member of this community, has passed at a relatively young age. I see the challenges that he faced, and note that he was not alone in that. A great many professionals face challenges. Attorneys are noted to have a particular prevalence in depression, alcohol, and drugs. We have spent an enormous amount of energy in 2023 on professionalism and community in workers' compensation. I credit Mr. Longo for his imagination, drive, and innovation this year. But more, this is an incredibly caring and supportive practice. Kudos to all of you who contribute to it. 

As we pause to remember Mr. Appel and his contributions here, perhaps there are readers who have struggles or challenges. The key element is that none of us is perfect. We work in a world that brings us troubled clients, significant challenges, and incredible pressure. You are not the first to have experienced it, and you will not be the last. I encourage you to reach out for assistance and to be willing to make that recommendation to others who you encounter. Community is real, and people will periodically need help, encouragement, and resources. 

Perhaps there are those who would like to reach out for assistance. I encourage you to do so if that is appropriate. In my opinion, the best path for information and assistance is the Florida Lawyers Assistance. Too many think of this as only an addiction effort, but the FLA can offer advice, resources, and help with a spectrum of challenges. They offer free and confidential help. Lawyers can call 954 566 9040 and judges can call 888 972 4040. 

$11 Billion Dollars

Did you ever make a mistake? As Forrest Gump so aptly noted regarding his error in not watching where he was going, "it happens." That is a hilarious exchange, but poignant also. We all make mistakes. One (or one million, perhaps two) that has been in the news recently has to do with a series of mistakes that have come to light at the Social Security Administration. Time and again we hear from the workers' compensation naysayers that the path to a better future is federalization. The recent news sure could make one ponder that.

Social Security is not a new topic here. See The First Social Program Bankruptcy is Upon Us (June 2014); Time for That Bake Sale (August 2015); One Year to Insolvency (September 2015); Nationalization, Participation, and Disease (December 2017); and Friends, Romans, Countrymen, Lend Me Your Ears (March 2022)(which includes citation to other federalization posts).

The central control, one-size-fits-all, bureaucracy fans are out there, and periodically they trumpet the glamour and efficiency of the federal government and proclaim their desire for an end to state-run workers' compensation. Somehow, they manage to keep their rose-colored glasses on through example after example of federal shortcomings.

The Congress recently held hearings regarding Social Security's "overpayments to beneficiaries." It wrote checks that were mistaken. WPXI Pittsburgh reports that acting Social Security Commissioner Kilolo Kijakazi testified "at an October 18 hearing" that this occurred repeatedly. In fact, she said, the Administration was demanding overpayments back from recipients about 1 million times per year. That is about 19,231 times per week.

Imagine that. If they are sending a letter to 1 million people each year to inform them of some overpayment and to request repayment, the postage alone might be significant. At the post-card rate ($.44), it would be $440,000 just sending the initial notice.

But wait, as we have come to anticipate, there may be more to the story. In a December 11, 2023 letter to Congress the acting Commissioner strove to "apologize for any confusion or misunderstanding." Note here there is no admission of mistake or owning of error. The misunderstanding is essentially that the Administration sends 2 million such letters each year (almost 40,000 each week, 38,461 actually). Wow.

You may remember that old quote from Mitch Radcliff:

“A computer lets you make more mistakes faster than any other invention with the possible exceptions of handguns and Tequila.”

Apparently, the computer at the Social Security Administration is very fast and efficient. Imagine the paper, envelopes, and human involvement it requires to produce and send 38,461 letters each week. The federal government is indeed inefficient. Well, everyone makes mistakes. The acting Commissioner goes on to explain that her testimony was mistaken. Some have wondered aloud "whether the agency had 'intentionally deflated the numbers.'” An Oregon Senator noted that "the agency had damaged its credibility by 'not telling the truth.'” That is blunt.

WPXI alleges that the correct figures, closer to 2 million, were actually on a paper the acting Commissioner read from during her testimony. It asserts that multiple requests for further information and clarification were submitted to the agency during the seven weeks after her testimony in October, and responsive communication was minimal. Apparently, Freedom of Information Act requests for data may have led to the admission of misrepresentation in the Congressional testimony.

How did the testimony come to pass? Well, a House committee is looking into allegations that the Social Security Administration sends out "billions of dollars of benefit payments that it later concludes it never should have paid." That is hard to read. That is "billions" with a "B." It is doubtful we are discussing rounding errors here.

If the agency figures out the mistake in a particular instance, it then writes one of those 2 million letters to the benefit recipient "demanding the recipients pay the money back." This may occur weeks after the administration's mistake or years later. The demands can be for a few dollars or for "tens of thousands of dollars or more." O.K., it is clear we are not discussing rounding errors here.

The beneficiaries are troubled by the demand letters. Imagine your government telling you it made a mistake (or dozens of them) in calculating and paying your benefits. Imagine being on a fixed income and learning that you need to write a check to Uncle Sam to repay ten thousand dollars.

Nasdaq reports that the magnitude of this issue could grow in coming weeks. It says that recent agency filings "reveal it made about $11.1 billion worth of new overpayments to Social Security beneficiaries during federal fiscal year 2022." That number is also with a "B." The usual annual overpayment rate has been reported as "usually . . . between $6 billion and $7 billion." Efficient? Effective? Exemplary?

Nasdaq says that "most 2022 overpayments" occurred in "programs (that) provide retirement and survivors’ benefits to qualified workers and their families, or support workers and their families when the workers become disabled." The federal bureaucracy leaks billions persistently and perniciously, and when it discovers its errors demand is made for immediate and full repayment.

Fox Business reports that "Those affected are elderly or disabled people on a fixed income who may have their benefits frozen or cut until their debt is paid off." Their income may be terminated until the money is paid back. Well, there is merit in addressing the overpayment issue. Social Security is in financial trouble in the broadest sense. The Agency itself admits that it projects its solvency only through 2037.

Will it be saved by decreasing entitlement (raising the retirement age), increasing income (raising taxes), or otherwise? Perhaps it might be aided by not making $11.1 billion in errors each year? Between now and 2037, if we stopped those errors, we might save $155,000,000,000 in funding? That may seem like a solution, but somehow, that is not being discussed much here, there, or perhaps anywhere. You know, eleven billion here, eleven billion there, "and pretty soon you are talking about real money." That is $11,000,000,000. That is $30.00 each for every one of the 332 million people in America.

The Florida workers' compensation law is a statute. It was enacted by elected representatives who drafted, debated, and passed specific language. Those folks anticipated that mistakes can happen. In the statute section that defines indemnity, section 440.15, they included paragraph (12):

"REPAYMENT.—If an employee has received a sum as an indemnity benefit under any classification or category of benefit under this chapter to which she or he is not entitled, the employee is liable to repay that sum to the employer or the carrier or to have that sum deducted from future benefits, regardless of the classification of benefits, payable to the employee under this chapter; however, a partial payment of the total repayment may not exceed 20 percent of the amount of the biweekly payment."

This is clear. Overpayments have to be repaid. They can be "deducted from future benefits." Note that the Florida law does not allow the "benefits frozen" alternative noted by Fox Business. The Florida law clearly defines the repayment and constrains it. If benefits are overpaid, then there could be a reduction in future payments, but no more than 20% of those payments.

It is possible, perhaps simple, to contemplate that mistakes could happen. It is just as easy to clarify the responsibility for repayment and to limit the parameters. That anyone is facing "frozen" benefits is regrettable at least. That the Social Security Administration is making (or discovering) two million errors annually (out of the 66 million people who receive benefits) is simply preposterous. Systems can be designed, computers can be programmed, and people can provide oversight. 

The Agency's 60,000 employees can do better (that comes out to one employee for every 1,100 benefit recipients). The Agency's Commissioner can do better (and tell the truth, and be straightforward, and so on). Congress can provide transparency and clarity through a very short statutory amendment in the spirit of the Florida law. And those who think that the federal government is exemplary and should be responsible for workers' compensation might re-think their criticisms of these effective state programs. There may be much to improve in workers' compensation, but making it an inefficient and ineffective bureaucracy is not even "an" answer. 

Reproval for AV Preeminent® Lawyer

I recently noted that profanity may be the path to credibility. See Crass Credibility (December 2023). If it is, then how might we identify the most credible, the exemplar? Perhaps we would search for the most profane?

I learned a new word this week. I do a great deal of reading and writing. It is somewhat rare to run across a word with which I have no familiarity. Kudos to the good folks of California. Reproval has two meanings, according to the folks at Merriam-Webster.

"to scold or correct usually gently or with kind intent"

or

"to express disapproval of: CENSURE"

It is difficult to discern which meaning the California example directs. I found the word when I happened to come across an old post I penned in March 2020 as the pandemic was beginning. See We Don't Need You (March 2020). In the past 4 years, I have somewhat lost track of a California attorney. He appears to be currently practicing law in California. After finding my post, I tried unsuccessfully to find news coverage following up on the facts in that March post.

I found a September 2023 California Bar investigation conclusion. It ended with a "Public Reproval." Whether it is a "kind intent" scolding or a censure is left to the reader. 

If you do not remember this attorney, then Google might be your aide. He is an "AV" rated attorney according to Martindale Hubbell. Many lawyers like to brag about their Martindale Hubbell rating. Martindale Hubbell says that this AV means:

"AV Preeminent®: The highest peer rating standard. This is given to attorneys who are ranked at the highest level of professional excellence for their legal expertise, communication skills, and ethical standards by their peers."

Communication skills? Back to the dictionary, and the plain meaning of words, "preeminent" means "having paramount rank, dignity, or importance: OUTSTANDING, SUPREME." So, one with such an accolade would perhaps be expected to in fact be a fitting example or exemplar. Might a preeminent lawyer be anticipated to be the epitome of dignity, respect, collegiality, and decorum?

The public might presume from this badge that any "AV-rated" attorney is exceptional, or any of a long list of other laudatory adjectives. Someone who is "preeminent" might be thought of as exemplary or worthy of praise and emulation. Of course, it is possible that any rating service conclusion might not tell someone's whole story.

This attorney made the news back in 2020 for his intriguing use of words. There was analysis on Law.com, Reddit, NoEthics, Bloomberg, The ABA Journal, The Daily Breeze, and more (The California decision includes quotes that might curl your hair). The spectacle of his representation of the legal profession was quite public and newsworthy. I am not certain why there has been no similar coverage of the allegations and outcome more recently.

It is fair to say that the use of language was perturbing to the defendants in a lawsuit in 2019. They apparently asked the Federal District Court for a restraining order. They were embarrassed to even repeat his language in their filing ("regrets being forced to put this language in the record”). I was similarly embarrassed and therefore did not include it in my original post. I, again, decline to include it here. 

U.S. District Court Judge Otis D. Wright II was less than complimentary of the attorney's word choices. The Daily Breeze reports that the judge did issue the restraining order. Other stories cited have noted the Judge's apparent displeasure with the allegations, and with the representations and statements the lawyer made in court. There was some discussion of "contempt and monetary sanctions."

The Daily Breeze noted in 2019 that the attorney had voiced contrition and apology:

“I have anger management issues and emotional problems and they (Allstate attorneys) were ignoring me, and I exploded in anger stupidly.” he said. “The worst part is that I potentially harmed my clients. Nothing that the other side did would ever justify using the type of language I used, and that is very important because it is a lesson I have learned in spades and should have already known."

As to the potential for Judge Wright to impose sanctions, the attorney told the Breeze "I deserve whatever the court does to me.”

It is unclear whether he has ever made a more direct and personal apology to the attorney(s) to which the original vitriol was directed. 

In September 2023, the State Bar of California entered an 18-page order approving the parties' stipulation for Reproval. It is explicit and includes profane and inappropriate language. The recitation is necessary in the discipline proceeding context, but it is unfortunate and difficult to read (and I used to be a truck driver, where I thought I had heard it all. I was wrong). It illustrates vividly the behavior of an "AV Preeminent®" attorney.

In the aggravating circumstances category, the stipulation notes:

"(8) Harm: Respondent's misconduct harmed significantly a client, the public, or the administration of justice. See page 11."

"(11) Multiple Acts: Respondent's current misconduct evidences multiple acts of wrongdoing. See page 11."

In the mitigating circumstances, it notes:

"(1) No Prior Discipline: Respondent has no prior record of discipline over many years of practice coupled with present misconduct which is not likely to recur. See page 11."

"(8) Emotional/Physical Difficulties: At the time of the stipulated act or acts of professional misconduct, Respondent suffered extreme emotional difficulties or physical or mental disabilities which expert testimony would establish were directly responsible for the misconduct. The difficulties or disabilities were not the product of any illegal conduct by Respondent, such as illegal drug or substance abuse, and the difficulties or disabilities no longer pose a risk that Respondent will commit misconduct. See page 12."

"(11) Good Character: Respondent's extraordinarily good character is attested to by a wide range of references in the legal and general communities who are aware of the full extent of Respondent's misconduct. See page 12."

The report repeats various statements from the attorney's emails. It notes "Respondent sent the emails described in paragraph 2 with the intent to intimidate, threaten, and harass." And that they "served no legitimate purpose other than to harass, bully, and demean opposing counsel." Those who received them "felt threatened and feared for the personal safety of themselves and their families." It also memorializes that the attorney withdrew from the particular case, but that "the court verbally reprimanded" him.

According to the ABA Journal, the court actually asked the attorney to resign from the practice of law. The court told the attorney to "shut up," and that he had "threatened people" and "had been acting like a gangster." The trial judge promised, "I am going to do what I can to remove you from this profession." One must applaud the judge's willingness to address the profanity, homophobia, and venom that was spewed in this instance. But, what the judge could do was apparently not enough. The attorney will remain preeminently® practicing law. 

There is a lengthy description of the attorney's emotional difficulties, his personal circumstances, and his interaction with medical professionals. No one wants such details in the public domain, but there they are. And, despite his intriguing word choices, his interactions with the District Judge (See ABA Journal), and the circumstances, the document memorializes the conclusion of the attorney's "extraordinary good character, as demonstrated by a range of references provided by individuals aware of his misconduct."

In addition to the Reproval, the attorney was ordered to

"Respondent must read the California Rules of Professional Conduct (Rules of Professional Conduct) and Business and Professions Code sections 6067, 6068, and 6103 through 6126."

"Respondent must comply with the provisions of the State Bar Act, the Rules of Professional Conduct, and all conditions of Respondent's reproval."

"Respondent must make certain that the State Bar Attorney Regulation and Consumer Resources Office (ARCR) has Respondent's current office address, email address, and telephone number."

"Respondent must schedule a meeting with Respondent's assigned Probation Case Coordinator to discuss the terms and conditions of Respondent's discipline"

"Respondent must submit written quarterly reports to the Office of Probation"

"Complete E-Learnlng Course Reviewing Rules and Statutes on Professional Conduct"

"Respondent must submit to the Office of Probation satisfactory evidence of completion of the State Bar Ethics School and passage of the test given at the end of that session"

"Respondent take and pass the Multistate Professional Responsibility Examination administered by the National Conference of Bar Examiners"

The document thus suggests there is some period of probation, but the duration of that is less clear. It is perhaps one year: "Respondent is, ordered to comply with the following conditions attached to this reproval for 1 year (Reproval Conditions period)."

I have questioned Do You Care About Reputation (June 2023) and asked How Will You Be Known (December 2015). I wonder whether this lawyer may long for the Right to Be Forgotten (December 2019). I sit this morning in the pre-dawn and wonder how long this series of emails, intriguing word choices, arguments, and publicity will follow this "AV Preeminent®" attorney. Some may wonder how such an example is perceived to be of such "extraordinary good character" in the legal community. A few might wonder whether that says more about the attorney, the legal community, or others.

Hopefully, the Rick Warren maxim “We are products of our past, but we don't have to be prisoners of it,” finds purchase here. It is hoped that the perceptions of some are validated, and the "extraordinary good character" here recovers from this pothole and finds a smooth road beyond. Otto Von Bismark (the originator of modern workers' compensation) noted similarly “Fools say that they learn by experience. I prefer to profit by others' experience.” Might we all take some guidance from the attorney?

Might we all gain some insight into the American legal profession generally from the whole story? Do we, as the attorney asserts, have a First Amendment right to such language? Or, is there some outer boundary? I leave that to you, and your review of the 18-page order.

Due Process and Service

I am not much of a country music fan (sorry if that is your genre). But I had a news story hit my list yesterday that was intriguing. It involves someone who sings that music, and he is apparently well-known (I really need to get out more, perhaps; it seems I recognize very few of the "famous" in the news). But, my interest here is in the concept of due process that lies at the foundation of our constitutional republic and the way the adjudicatory process works.

The story that ran on Yahoo News (citing various publications as originators) began with local coverage of a Florida fan who was inspired at this performer's concert last year. She decided to produce a tumbler to sell through her online business, essentially celebrating this performer. But, she used the performer's name and likeness without his permission. WFLA reported that the performer "sued her in federal court in Illinois, along with various others, for selling counterfeit merchandise." 

She recently found out that a federal court had ordered her to pay $250,000 to the performer. In the process, her access to her online store and all existing sales proceeds held there were somehow suspended. She reached out to the local news station, WFLA, for advice and they did a news story about it. The performer says that the news story is how he learned that he had sued this fan. He says he saw the local Florida newscast when he went to the bathroom one morning at 05:00. It made him sick to his stomach.

Once the singer found out about it, he responded by directly contacting the fan. They apparently apologized to each other, and he explained that he had contracted with someone to look out for his interests in this regard. Those he hired had independently filed the suit in his name. He stressed his original intention that those he hired were to go after the big counterfeiters, not people like this fan who sold less than $500.00 in merchandise with his name and likeness.

I know, Statler and Waldorf are rumbling by now about "what does this have to do with workers' compensation? I get it you two (Keep it down up there in the peanut gallery). You see, workers' compensation is a property right (like the money in your bank account, and the money in this fan's online store, and like many other things in our lives). And property is not supposed to be taken without due process of law.

See, we like due process. We like it so much that we put it in the Constitution twice. It was first in the Fifth Amendment (1791), and that worked so well that we reiterated it in the Fourteenth Amendment (1868). I query my students about that redundancy every semester. Occasionally one of them nails the answer as to the need for repeating ourselves. But it is rare. For more on the incorporation of the protections of the Bill of Rights as regards state action, see Marriage, the Law and Workers' Compensation (November 2014) and IMR and Due Process (December 2018).

So, this performer is sending the fan about $11,000 (double the funds she is unable to access in the online store account, though the sale of his likeness generated something less than $500). And he is designing his own cup to raise money for this fan (She is having some health issues). Maybe it is a heartwarming story. But, most importantly, we have an illustration of an intriguing process. Or lack of process. 

You see, due process means that we do not take people's property without their rights being preserved. They are entitled to due process. How much due process, you ask? Well, it turns out that the answer is "enough." That is not a great answer, but it beats "it depends." And both are correct. If you are accused of a capital offense (murder, rape, etc.) you will deserve more process and protection than if you are accused of stealing a pack of Beemans from the newsstand (I know, look it up in your Funk and Wagnall's). 

For more on due process, see Keep Your Profile Current (August 2012); Check Your Daily Filings (February 2015), Appropriate Service (April 2018), and A Wall of Willful Ignorance (May 2018). I have written a great deal about service and due process. 

See, due process essentially comes down to (1) notice and (2) an opportunity to be heard. You don't have to be heard (you have the right to remain silent), but we have to give you that chance to speak. And, this fan says she never got that chance. The performer did not know he was suing and the fan did not know she was being sued. This is perhaps a comedy of errors. From some perspectives, it may also be a parade of failures, but more will be learned in days to come. 

The fan acknowledges now that she was served with the lawsuit in an email. But it was not a regularly used email. She found this particular message, eventually, in her spam folder. Let me reiterate, the notice provided by the singer's "people" was sent by email. And the court in Illinois apparently concluded that was appropriate and sufficient. That is, reportedly, under Illinois law. Well, that may get interesting in itself. Can a Federal Court gain jurisdiction over a Floridian by serving a complaint by email? Does the Illinois law govern the process and procedure in federal court?

That question will be asked a few more times in the days to come. You may hear some discussion of the Erie Doctrine. In a great many federal cases, the court has jurisdiction through what is called "diversity" of citizenship. There, the substantive law of a state is applied in federal court. But not the procedural law. The procedural law in federal court is dictated by federal law. 

So there may be a discussion of how this case got into federal court, diversity or otherwise? It does not appear to be a criminal case. How did the federal court have authority generally, and how did it apply Illinois procedural law? The news may have it wrong, it was perhaps in state court. If the case did not get to the federal court by "diversity" then perhaps by federal law being violated? How is it that the procedural law of Illinois (which apparently allows the service of a lawsuit by email) applies to a federal lawsuit? 

But then, how did the state court gain jurisdiction over this Floridian? Perhaps a tumbler or two was sold in Illinois? Perhaps the online store company does enough business in Illinois to subject it (and thus her) to the jurisdiction of that state's courts? There will be various water cooler discussions of this in the coming days. Those who would do business on the Internet might consider some of the implications for the jurisdiction of courts hundreds of miles away. 

Many legal curiosities above may become more clear as news evolves on this story. But, as important, what was the performer doing watching the Tampa, Florida news at 05:00 in his bathroom (that is an aside, but a valid question).

Up next

Luke Combs Accidentally Sued a Fan For $250,000. Now He’s Apologizing and Sending Her Thousands

Bill Donahue and Jessica Nicholson

Wed, December 13, 2023 at 1:00 PM CST·4 min read

1

Luke Combs apologized Wednesday after he accidentally sued one of his fans in federal court and won a $250,000 judgment against her, saying she had been caught up in a lawsuit aimed at “illegal businesses” and that she was “never supposed to be involved.”

The apology came a day after news broke that lawyers representing the country star had sued a woman named Nicol Harness for selling Combs-themed mugs on Amazon. Harness, who suffers from congestive heart failure, sold only 18 tumblers for a total of $380 but was ordered to pay a whopping $250,000 in damages for infringing Combs’ intellectual property — all before she ever realized she had been sued.

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In an Instagram post on Wednesday, Combs said he had just learned about the situation and that it “makes me absolutely sick to my stomach.” He said he had already contacted Harness directly and apologized for the incident.

“I spent the last two hours trying to make this right and figure out what’s going on, because I was completely and utterly unaware of this,” Combs said in the video. “We do have a company that goes after folks only, supposedly large corporations operating internationally that make millions and millions of dollars making counterfeit tee shirts, things of that nature, running illegal businesses. Apparently, this woman, Nicol, has somehow gotten wrapped into that.”

The lawsuit against Harness, filed in June in Illinois federal court, accused more than 200 online entities of selling unauthorized Combs merchandise on the internet. It included screenshots of unauthorized t-shirts sold on Amazon that directly copied real apparel the country star sold on his own site.

“This action has been filed … to combat online counterfeiters who trade upon the reputation and goodwill of the American artist Luke Combs,” his lawyers wrote. “The aggregated effect of the mass counterfeiting that is taking place has overwhelmed the plaintiff and his ability to police his rights against the hundreds of anonymous defendants which are selling illegal counterfeits at prices.”

The case highlights a common legal tactic used by big brands like Nike and Ray-Ban to fight fake products on the internet. Filed against huge lists of URLs, such actions enable brands to shut down pirate sellers en masse, win court orders to freeze their assets, and continue to kill new listings if they pop up. They usually result in large “default judgments” against many defendants who never even saw the lawsuit, ordering them to pay large sums in damages.

Though they’re more often employed by retail brands, artists and bands have increasingly turned to such lawsuits to combat counterfeit merch. Nirvana sued nearly 200 sites for selling fake gear in early 2022; a few months later, the late rapper XXXTentacion’s company filed a similar case; in January, Harry Styles filed one.

Such lawsuits are effective at combating a difficult problem, but they’re also increasingly controversial. In a study released last month, professor Eric Goldman of Santa Clara University’s School of Law called the mass-defendant counterfeiting cases “abusive,” saying they allow rightsholders to bypass “basic procedural safeguards” like making sure each defendant is properly served with notice of the lawsuit.

Harness says that’s what happened to her. As reported by Tampa’s local NBC outlet WFLA, she says she had no idea she had been sued until she returned from a hospital visit and saw her Amazon account had been frozen. Harness says she later found an email from Combs’ lawyers, sent to an address she rarely uses and stuck in her spam folder, notifying her of the lawsuit. By the time she was fully up to speed, she says the case had been closed and a judge had granted a default judgment ordering her to pay Combs $250,000.

Though the lawsuit was filed directly in his name, Combs’ Instagram post on Wednesday suggests that it was handled entirely by outside attorneys or other entities empowered to enforce his rights. The attorney who filed the case, Keith A. Vogt, did not immediately return a request for comment.

Combs’ manager Chris Kappy declined to comment on how the case came to be filed, but confirmed that Combs had absolved Harness of any legal debt. And in his Instagram post on Wednesday, Combs said he was committed to making things right.

Since a total of $5,500 was still frozen in her Amazon account, he said he was “going to double that, send her $11,000 today, just so she doesn’t have anything to worry about.” Combs also said that he was going to make his own tumblers to sell in his official online merchandise store and that money from sales of those tumblers will also go to Harness to help with her medical bills.

“This is not something I would ever do,” Combs said. “This is not the kind of person I am, greedy in any way, shape or form. Money is the last thing on my mind, I promise you guys that. I invited Nicol and her family out to a show this year so I can give her a hug and say sorry in person.”

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