It's that Time Again

May is perhaps the best month in Paradise. We have shaken the cold from our limbs and begun to settle in for another long, humid, and hot summer. But the humidity and high temperatures are momentarily at bay in May. The Spring Breakers have returned to their frigid homes in order to complete yet another academic year. The beach, restaurants, and amenities are left to us in this brief Respite. Summer will arrive soon enough and the tourism that drives our economy will again clog our transportation arteries and more.

More important, May marks the end of the best Florida season, the Respite Season ©2023. Each year, we enjoy the Respite (Respite begins December 1 and runs through May 31. It is a glorious six months in which we celebrate all that is good in the world. That is not to claim that we never have troubling weather during Respite, we do. It is not to claim we never have a hurricane in Respite, we do. But, they are exceedingly uncommon, typically inconsequential, and quickly forgotten.

Wikipedia, or someone claiming to be Wikipedia, says that 97 such storms have occurred in the "off-season." That is a backhanded reference to the opposite of hurricane season, June 1 through November 30. Someone at Wikipedia will likely lift my term, "Respite," eventually. Unfortunately, I will likely never know who. So, an admission at the start that hurricanes are less than predictable. Who knew?

Yes, who knew. That reminded me of P!nk and her hit by the same name (LaFace 2006). In it, she advises

"When someone said count your blessings now

'Fore they're long gone

I guess I just didn't know how

I was all wrong"

Yes, count your blessings now. It is glorious May and Respite 2022-23 draws to a close. We stride confidently towards the tough six months in Florida when there is a persistent potential for wind, rain, and damage that are endemic to hurricane season. We are often hopeful, blessed, and relieved. But we are sometimes hit. And those hits are incredibly disruptive, destructive, and depressing. I have lived through my share and watched for news from Waffle House. 

Hurricane season is nothing to ignore. No, it will not go away. No, you cannot will it away. No, it will not hurt you to acknowledge its ugly presence and prepare. The Weather Channel recently published 2023 Atlantic Hurricane Season Outlook: A Developing El Niño Vs. Warm Atlantic Ocean. It is a deep dive into water temperatures, currents, and other science. It is an intriguing read.

But in essence, it describes how predictors of hurricanes are less confident than usual this year. They are troubled by climate issues that are in flux as we see El Nino on the horizon and perhaps it is a harbinger of good news. The El Nino is seen as a hindrance to major storms. This is juxtaposed with the unexpected warmth of the Atlantic, and to some extent, the prognosticators have slipped into Jeff Spicoli territory ("I don't know," Fast Times (Universal 1982).

That said, the Weather Company's prediction this year is for

"15 named storms, seven of which will become hurricanes and three of which will reach Category 3 status or stronger."

The folks at Colorado State University

"forecast 13 named storms, six hurricanes and two major hurricanes."

It seems odd that Colorado State is predicting. That seems about as logical as letting Vincent LaGuardia Gambini judge the grit-cooking contest in Beechum County, Alabama ("Sure, I've heard of grits. I just never actually seen a grit before,” My Cousin Vinny, 20th Century, 1992). I tried to find the last time a hurricane struck Colorado, but Google failed me like a ChatBot.

That said, I admit to liking the Colorado State numbers better.

So, it ain't a pleasant outlook necessarily, but we have seen worse. Perhaps this will be a calm season for the U.S. and Florida specifically. Goodness knows we could use a bit of quiet. While some characterize the 2022 season as "relatively mild," it will be remembered for Fiona and Ian. Don't try to tell Floridians any tall tales of "mild" 2022. 

That Ian worried far more than it hurt, and it hurt plenty. Ian was amazingly strong and devastated many lives. Some in southwest Florida continue to recover even still. Ian was the third costliest hurricane in history.

Speaking of continuing impact, Michael hit Panama City in 2018. I am astounded to reflect back on its impact five years ago. Panama City has thrived in some respects since then. However, evidence remains of Michael's anger and temper. Michael was petulant, persistent, and destructive. While he did not make the list of the most costly, he was horrible. Amazingly, Michael was still destructive when he was 65 miles inland and stormed into Georgia. That is pretty rare, and terrible to watch. 

And those two storms are reminders of the only really important points in this post. First, as noted in the Weather Channel article:

• "A season with fewer storms or hurricanes can still deliver the one storm that makes a season destructive or devastating."
• "it doesn't take a hurricane to be impactful, especially regarding rainfall flooding."
• "the time to be ready for hurricanes is now."

It takes one. Sure, preparation may be time you could spend elsewhere. Certainly, no one likes to focus on the negative. And no one hates the thought of hurricanes worse than I do. But, you heard it here first, you either be prepared or need repaired (you pick). 

The end of Respite 2022-23 draws near. I look forward to welcoming the next season with you on November 30, 2023. In the meantime, check your plans (personal and business), get your supplies, and be ready in the event some misanthropic menace may be coming soon to a neighborhood near you. Get prepared, stay alert, and we'll see you on the other side.

 

A New Plan

Each conference, I attend is an educational opportunity. Rarely, if ever, do I gain from the classroom experience. This is not to deride that opportunity but an admission of my own preferences. I gain more in individual conversations and find various nuggets to carry away.

The 2023 Worker’s Compensation forum at ChampionsGate in Orlando is no exception. At one point, I was frustrated by the absence of beverages (having consumed one too many chocolates). As I wandered in search of a store or restaurant for a soda, I coincidently ran into a longtime co-attendee of such events. He was accompanied by his two daughters, who had traveled and significant distance to the conference in order to take him for a birthday dinner. I incidentally found it endearing that the next generation would go to such lengths. 

As we stood and chatted, this gentleman noted the significant investment required to obtain a college education, a subject with which I am not unfamiliar. In addition to personal experience, I have spent the last, several years working with Kids' Chance of Florida. This has been illuminating in several ways. The following are related observations:

1. There is a significant volume of motivated, talented, and incredible students wishing to go to college. 
2. College is an expensive, and therefore, often overwhelming endeavor. 
3. Those challenges, financially, emotionally, and practically are aggravated by the significant injury, or death of a parent. 

This gentleman posited a simple question, that drove our conversation: why does Worker’s Compensation not provide education benefits for the children of injured workers? The instant reaction to any benefit expansion is likely "expense." It is a ready and easy answer. Certainly, education is significantly expensive (see above). 

That said, perhaps we could bring focus to a small subset and make a difference? In section 440.16(1)(c), there is a provision recognizing the potential developmental needs of a surviving spouse, when workplace death occurs. The statute has long existed, and provided for this potential education component:

"To the surviving spouse, payment of postsecondary student fees for instruction at any career center established under s. 1001.44 for up to 1,800 classroom hours or payment of student fees at any community college established under part III of chapter 1004 for up to 80 semester hours."

At the outset, there are no community colleges in Florida. That changed in 2009 when the "Florida Community College System" became the "Florida College System." This recognized the need for broader opportunities and the fact that these schools had begun conferring bachelor's degrees. They had evolved and changed. The name change was logical, but no one thought to amend Chapter 440 to conform.

Thus, workers' compensation will not afford a surviving spouse a Ph.D., a master's degree, or even bachelor's. But with diligence, the surviving spouse can achieve an associate's degree. Is this a “be all, end all?“ Absolutely not. It is a recognition of the benefits of higher education. It is a stimulus toward a better future. It is a beginning in the wake of tragedy. That tragedy will pass, but it will leave scars and impact in its wake.

In this regard, can we say that dependent children are in any way less burdened by the death of a parent? Can we find a similar path for this population? The first question is always about magnitude. How many children are we talking about? In the abstract, that may be difficult to quantify.

The Bureau of Labor Statistics says there are just over 300 workplace deaths in Florida each year. It fluctuates. Some of those are self-employed (not "four or more," and thus perhaps not workers' compensation). Similarly, we know that death benefits under section 440.16, are limited to those who are dependent upon the deceased employee. Anecdotally, we’re comfortable admitting that some who pass simply have no qualifying dependents.

Statistics are both illuminating and confounding. While we are comfortable that 2.4 children is an average, according to Pew. We should be equally comfortable, recognizing that there will be deviations from that average, and a particular worker may have no children or far more than average. That said, statistical averages help us quantify probability. If all 300 deaths are compensable, and each death has 2.4 dependent children, then 720 children are impacted each year. Some might not elect college, but that 720 is likely a maximum number, an overstatement.

The statute already limits death benefits to dependent children. And their entitlement under the law terminates by operation of law:

440.16(2) The dependence of a child, except a child physically or mentally incapacitated from earning a livelihood, shall terminate with the attainment of 18 years of age, with the attainment of 22 years of age if a full-time student in an accredited educational institution, or upon marriage.

Thus, not all deaths will be compensable (less than for employees), incidents involving drug impairment, incidents involving fraud in the employment contract, and various other compensability defenses. Not all employee death will involve dependent children. And dependency will be of limited duration by law. 

We could acknowledge that young people are impacted by the work death of a parent. Those impacts will be emotional and impactful. They will be far-reaching, and, long-lasting. I’ve been privileged to meet a handful of exceptional children, who are confident, proficient, and focused. The Kids' Chance scholarship recipients are nothing short of inspiring. This is perhaps due in part to the great responsibility thrust on them by a parent's work place injury. Or perhaps they can thank parents, teachers, and other mentors? 

All that said, would it be reasonable to offer the equivalent boost to the children of workers killed in compensable accidents? The right place for this might seem to be 440.16(1)(c). Some would advocate adding "and dependent children" to that section. But there is a statute of repose in that paragraph that terminates the entitlement 7 years after the death. That would not be appropriate for the dependent children in many instances. Instead, perhaps a new 440.16(1)(d)

"To the dependent child, dependency determined as of the date of accident, payment of postsecondary student fees for instruction at any career center established under s. 1001.44 for up to 1,800 classroom hours or payment of student fees at any state college established under part III of chapter 1004 for up to 80 semester hours. Eligibility terminates for the purpose of this section no later than the dependent child's attainment of 22 years of age."

This would provide those impacted in this profound manner with a boost. It would make college or vocational training an attainable goal that every such child would know of and could work towards. Their academic efforts would be encouraged and invested knowing that those first two years, that associate's degree, would be attainable without debt. Or that their vocational goals would otherwise be attainable. 

There should likely be recognition of this broader impact on family, that is beyond the ultimate sacrifice, broader impact potential from a work injury. Therefore, effort should be encouraged to inform injured workers that scholarship opportunities exist. There is a broad requirement for information to be provided in section 440.185(3). That section dictates the distribution of an "informational brochure" to each injured worker. That brochure should inform all workers of the potential for any financial assistance that a worker or family might engage for educational opportunities: 

(3) Within 3 business days after the employer or the employee informs the carrier of an injury, the carrier shall send by regular mail or e-mail to the injured worker an informational brochure approved by the department which sets forth in clear and understandable language an explanation of the rights, benefits, procedures for obtaining benefits and assistance, criminal penalties, and obligations of injured workers and their employers under the Florida Workers’ Compensation Law.

What if this were amended to include some edification of educational benefits from private sources. What if the following were added to that paragraph 

This shall inform of any potential private educational assistance available to the children of an injured worker. 

Would the injured benefit from their children being able to locate scholarship information or connections? Would individual's potential for college be improved by a scholarship or two? Would the addition of this language significantly impact costs? Doubtful. This notification would likely benefit many and cost nothing. 

These are inspired ideas. I wish I could take credit for these. Thanks to that co-attendee for being mindful, and for asking questions. This could be a benefit adjustment that is of significant benefit to those severely impacted by death of a family member. 

Which is Preferred?

A recent post led me to deeper consideration of the issues surrounding the apportionment of fault. Yes, this has seemingly nothing to do with workers' compensation. And this blog is largely about workers' compensation. But it is also about the law. The recent missive is Comparative Redux (March 2023), which focused on the recent Florida change to Modified Comparative Negligence. I followed that with a post that perhaps suggests some workers' compensation relevance, The 440.39 Lien and Limitation (April 2023). That one 

The posts led me to run a survey on LinkedIn, something I had not tried before. I thought that the results might be skewed in one direction or the other. In fact, I was expecting a skew toward pure comparative. I was somewhat surprised when the three options received reasonably similar votes (this is a non-scientific poll on social media). The option with the most respondents was Pure Comparative. And, that is perhaps driven by familiarity? I have spoken to several people since Redux who told me that they did not know of Modified until reading that post.

For clarity, the title of this post is "Which is Preferred?" But the poll is "Which is best." Not the same thing at all, but I suspect that we each prefer what we perceive as "best?" This may be a perspective issue. 

One participant noted "I'm a big fan of contributory." The critical element there is seemingly simplicity. "There's not a lot of room for ambiguity." There is merit to simple systems. Another commenter said that the change may lead to unexpected decreases in the fault apportioned to plaintiffs: "when a jury hears 51% liability on plaintiff will bar recovery they may be more reluctant to allocate 70-90% to plaintiff." Thus, there is perhaps potential for greater recoveries by plaintiffs due to the structure of the law.

For example, if damages are $100,000 and the jury is asked to apportion fault in Pure Comparative, they might conclude that 90% is the plaintiff's fault and still award $10,000. But, the commenter suggests that if the jury knows the plaintiff will get nothing with such a finding it may instead be drawn by sympathy to ignore the 90% and instead conclude assigning the plaintiff 49% and the verdict will be $51,000 instead of the $10,000 suggested in Pure.

It is intriguing that only four states (8%), Alabama, Maryland, North Carolina, and Virginia are "Pure Contributory" negligence states. See Bloomberg comparison chart and map. And despite that clear minority position, thirty percent of respondents in my unscientific poll favored that system. 

The same surprise might be expressed regarding the opposite, the "Pure Comparative."  Only 9 states (18%) still subscribe to this: Alaska, Arizona, California, Kentucky, Louisiana, New Mexico, New York, Rhode Island, and Washington. And yet, 39% percent of the respondents in my poll favored that. 

The vast majority of the states are using Modified Comparative Negligence, thirty-seven states (74%). Despite that overwhelming majority, Modified Comparative garnered only 30% in the poll. These outcomes caused me to wonder how many people are in the various category states. 

According to WorldPopulation.com, the U.S. population in 2023 is 333,868,745. The four Contributory states include 30,795,390, or about 9% of the population. So roughly nine percent of Americans live under that paradigm. The 9 Pure Comparative states (18%) include 84,591,729, roughly 25% of the population. The 37 Pure Comparative states (74%) include 218,481,626, roughly 65% of the population. 

Perhaps the lack of congruity is surprising. The three theories or paradigms are reasonably similar in the preference poll (strictly unscientific). And yet there is a very clear prevalence of Modified Comparative both by volume of states (74%) and population (65%).  Similarly, the very small presence of Pure Contributory states (8%) and population (9%), garnered a notable response in the poll. 

In the end, this perhaps only suggests the flaw in a poll. However, the state and population figures are clearly demonstrative of a significant preference for the Modified Comparative standard. There is the suggestion that its application could lead to unintended outcomes, noted by one commenter. But, overall, it is expected by many to impact case filings and litigation outcomes in Florida. 

Generation Z Osmosis

The pandemic sent many into remote work settings. Some more readily than others. I have heard envy expressed for that person that already had a desk at home and transitioned a workspace somewhat seamlessly to more steady use. I have also talked with some that spread their work live over their home environment, losing non-work access to a dining room or other former "living" space. I have heard praise and criticisms regarding the challenge of the change.

Virtuality has had challenges. See Evolving Work Challenges (January 2022), Remediating (February 2022); The Next Thing (July 2022); Productivity is Down (December 2022).   

A recent article on the British Broadcasting Corporation (BBC) noted that some of the next generation, Generation Z, are starting work life at a great disadvantage as a result of virtuality. Some of Generation Z, have purportedly "only known virtual work settings." This generation is born between 1996-2009 and entered the workforce beginning in 2014 and will continue to join through about 2031. See Bring Value (February 2022). So, the BBC's "only" is a generality, as the earliest Gen Z had been in the workforce for perhaps several years when the 2020 shake-up occurred.

But, particularly with those who elected four-year colleges, that workforce introduction might have been in 2018 at the earliest. Certainly, in that college cohort, more have joined the workforce since COVID ('20-23) than before (2018-20). There is merit in seeing impact in a broad perspective with this group. There may also be merit in the potential that flexibility of youth generally and acceptance of technology may have predisposed this group to success in the remote transition. 

The BBC notes that many have thrived. They are happy with the flexibility, and with relying on the technology that is such a natural and normal part of their world. Keep in mind these folks never really had to adapt to technology and its impacts. They were born into the midst of it all and never knew a world without the internet, smartphones, and social media.

That said, the absence of office presence is impacting some workers. There are lamentations of the "workplace intangibles." The BBC author cites examples such as "casual conversations and informal observations that traditionally teach young employees how to act." There is a remoteness that borders on isolation. And the claimed result is that the young are "missing out on picking up vital cues that guide behavior, collaboration, and networking."

This is not new. See Presenteeism and the Coming Divide (June 2021); A Modern Dilemma (February 2018). The idea of not being seen around the workplace may have implications. But, this most recent perspective is more on development than being noticed and engaged. The experts cited by the BBC note the following potential isolation impacts:

• communication
• norms
• values
• etiquette

There is lamentation here about the challenges of "being noticed" and "falling off the radar." These are not new concerns. However, they are persistent. I question whether this is all very temporary. The comfort of these workers in virtual settings is admirable. If they are productive, efficient, and contributing, perhaps there is little to be concerned with. As we old folks age out of the workforce, the conflict between their paradigm and our own will likely become less important by natural evolution. Possibly the challenge is merely with our old-school perspective colliding with their new world?

One expert cited by the BBC seems to see this as a larger and more long-term issue, however. He perceives that the lack of in-person interaction will impair the development of leadership in this next generation. He is convinced that they will master the work or task performance, and their particular skill or contribution, but will lack the development of "cross-functional skillsets" and the "strategic view" to evolve into tomorrow's leaders.

For today, it is not that communication, etiquette, and leadership cannot be mastered in the remote work environment, but that they will have to be addressed more directly. Gone are the days of casual water cooler conversations, impromptu "desk drop-by," and similar opportunities for subtle adjustment regarding skills, behavior, or interaction. Not mentioned is the opportunity for the young to observe others and learn from their prowess or errors. One can learn a great deal from an example, even a bad one. The deficit, it seems is they are missing the chance for "osmosis" (absorbing what is around them). 

The article sources lament miscommunication that is possible in digital communication. I have lamented the challenges that come with email and texting. You lose the tone and timber of conversation. Often in recent years, I have encouraged lawyers to speak to one another more frequently. The phone is not yet antiquated and conversation is so powerful. See The Great Good Place (August 2021). Unfortunately, most lawyers seem averse to simple conversations about conflicts and litigation. Some have withdrawn behind the keyboard and perhaps become a bit snarky, or misperceived as such.  

How will employers handle the management of the remote and virtual? Beyond the communication challenges, there are questions about the evaluation of employee performance. Are teams remaining engaged and committed to outcomes? Are more formalized management tools necessary (meetings) or are those merely excuses and distractions? And in the midst, there are concerns about productivity working back into the conversation. 

No Hugs for Judges

The Florida Supreme Court granted a petition for prohibition regarding a constitutional (Circuit) judge presiding over the proceedings regarding a criminal defendant. This is nothing to do with workers' compensation directly, but the implications are as pertinent to any judge governed by a Code of Judicial Conduct as Florida judges of compensation claims are. 

This April 13, 2023 decision in Tundidor v. State, SC2022-1732 is an interesting read as regards judicial compassion and the appearance of impropriety. Essentially, Mr. Tundidor finds himself convicted and under "sentence of death." He has some "postconviction proceedings" pending and coincidentally his case is assigned to the same judge that presided over the sentencing of the young man that massacred many students at a Parkland high school on Valentine's Day 2018. 

 

Mr. Tundidor sought disqualification of the trial judge on the basis of "the appearance of impropriety and actual bias.” His foundation was the judge's interaction associated with persons involved in the Parkland case. He contends that the judge has been "accused of conduct . . . viewed as exhibiting bias against the defense." He cites reporting of such perceptions "in local, national, and international press, and streamed live on social media." 

The specifics include allegedly "heated exchanges with (the) defense team" in the Parkland matter. Further, that 

"immediately after sentencing" the shooter, the judge "left the bench and, while still in her judicial robe, exchanged hugs with the victims’ families and  members of the prosecution team."

Mr. Tundidor noted that one of the hug recipients "was Assistant State Attorney Steven Klinger." He notes this is pertinent because this particular hug recipient "is also the prosecutor in Tundidor’s case." Further, he alleges that "while off the record at a status hearing" in Mr. Tundidor's case days later, the judge "'sympathetically' asked ASA Klinger how he was doing." That allegedly devolved into a discussion of the emotional state of Mr. Klinger which Tundidor associated with Parkland, though that case was not mentioned. 

Mr. Tundidor concluded that he, therefore, had an "objectively reasonable fear . . . that he would not receive a fair hearing before" the judge. He alleges the behavior (hugging) and comments "raises the appearance of impropriety" and perhaps also demonstrates "actual bias in favor of the State." The hugging and recounted conversation, he claims, shows the judge "shares a special relationship with the prosecutor and bias in favor of the State."

The trial judge denied the motion to disqualify, finding the allegations "legally insufficient." Mr. Tundidor sought review by the Florida Supreme Court by writ of prohibition (one of the original jurisdiction writs for immediate review). See Writ Protection as Opposed to Appeal, (July 2017). 

The Court reminded that Florida Rule of General Practice and Judicial Administration 2.330 sets forth the grounds for a motion to disqualify. By incorporation, that same rule applies to judges of compensation claims, see Rule 60Q6.126. It explained that 

“The standard for determining the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, ‘would place a reasonably prudent person in fear of not receiving a fair and impartial trial.’ ” (citation omitted).

And, it reminded that under the Code, “Actual bias or prejudice need not be shown, rather it is the appearance of bias or prejudice which requires disqualification.” While subjective conclusions or premonition may form some foundation, they are not alone sufficient to justify disqualification. In order to reach that standard, "the fear must be objectively reasonable.” 

The Supreme Court concluded that "the combination of certain circumstances" and the allegation of demonstrating "a sympathy with the State that was linked to the outcome of another capital case" were sufficient to "create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial proceeding." In support of this conclusion, the Court specifically noted the hugging of ASA Klinger in the courtroom while in robes, and the commiserating two days later in the off-the-record conversation in a hearing related to Mr. Tundidor. 

The Court found the petition legally sufficient and it was granted. 

There are important reminders for all judges in this outcome. First, being "off the record" presents challenges. What Mr. Tundidor heard is what he heard, but there are times in which perception, hearing, and recollection do not necessarily match the record. But here, there is no record to which his allegations and recollections can be compared. I persistently counsel judges to be on the record in such interactions. 

Second, the sympathy or commiseration is not the key to the Court's decision here. Rather, "the appearance of impropriety" alone may be sufficient. In the role of adjudicator, it is seldom appropriate to interact socially with any party. That said, in the emotion of a tragedy such as Parkland, there is perhaps an irresistible urge to comfort the victims and survivors. That said, exhibiting those human emotions in a public setting, particularly while enrobed, might certainly appear to some as a bias in favor of those victims and thus the state that is prosecuting them.

Third, in any adjudicatory process, there is some probability that judges and various lawyers will see each other on a repetitive basis. It is not appropriate to discuss a case with one party (or her/his/its) counsel unless all parties to that case are present (ex parte), or were at least provided notice of the proceeding. Many times, a party or judge may refer to some other proceeding during a hearing that involves some coincidence of counsel. This is ill-advised. 

When a party or attorney in case "A" perceives that the judge and opposing counsel are discussing another case inappropriately, case "B," that attorney or party may validly wonder if the judge and counsel discuss case "A" similarly, and without them when proceedings occur in case "B." Discussing cases in such an informal and ex parte manner is troubling. The practice leads to speculation, and speculation to doubt, distrust, and "appearances."

The Court's opinion is brief, but informative in its reminders of the challenges of avoiding the appearance of impropriety. At the end of the day, it is best to refrain from hugs, social interaction, and frankly small talk in general. While that is troublesome in its own right, it is likely the best advice for avoiding misunderstanding and misconception. An injured worker once complained to me that the assigned JCC and both attorneys were obviously familiar with each other. He was troubled that the judge praised and complimented both attorneys. 

One should be able to praise and compliment. But, in the eyes of some that is upsetting and troubling. Thus, the subjectivity of "appearance" is revealed, as is the challenge of its avoidance. Would disqualification be in order in the instance of complimenting all counsel in a case? I think the "objective standard" described by the Court says no in most instances. That said, it nonetheless is a case-by-case analysis of exactly what was said, to whom, and when. As nice as it is to be complimentary, a complaint may still arise. 

Dr. James McCluskey

Yet another example of what has recently been too frequent. In January 2022, I lamented the passing of Judge Robert Dietz. Robert seemed to me to be in the prime of life. That post noted that death comes to call more often as we age. We are frequently blessed in our youth with little or no contemplation of passing. Certainly, the potential surrounds us throughout life, but it is often easy to ignore or to attribute as some concern of "the old." Then, contemporaries begin to pass and the reality hits home. We eventually become the old. 

I received a disturbing email on April 17, 2023, to advise me of the passing of Dr. James McCluskey. Jim was on the Program Committee of the Workers' Compensation Institute, and I have served with him in that capacity for more years than I can remember. He and his wife, Diana, led the Give Kids the World outreach that began at WCI about a decade ago. Before that, I was familiar with Dr. McCluskey through work on various presentations.

The McCluskeys were rabid supporters of Give Kids the World. For the uninitiated, WCI attendees have been visiting the Give Kids the World Village on Saturday before the annual workers' compensation conference to donate time. I am sure that Diana McCluskey remains as devoted to that outreach, but it is difficult to picture her without Jim. I have enjoyed that outreach because of the opportunity to see this community in action. I have tried to attend regularly, until 2020. See Not the Same and YetNot the Same and Yet (August 2020). 

It is strange to sit in 2023 and reflect on a worldwide pandemic that was just three years ago. We were confronted and challenged. Some were confounded and frustrated. The world changed, and we struggled with self-protection and maintaining professional obligations. We all knew someone that passed from COVID-19 or at least knew someone that knew someone that passed. The scourge touched us all. A great many people I know lived in fear and some still do today. 

But for most of us, COVID has been long over. At least a year ago, the vestiges had largely disappeared. Long COVID Seminar (April 2022). More recently, I noticed the Post Office had removed its plexiglass sneeze guards from the counter. They had apparently been waiting for the President to declare COVID over. But most of us had long ago been over COVID whether it was over or not (it seems it was). There was relief when it ended, and I am more grateful than I can express that I was blessed to live in Florida throughout. 

But, in Dr. McCluskey's passing, I am reminded that there are many causes of death. Outside the immediacy of a pandemic, the passing of my contemporaries has become too frequent. Dr. McCluskey was significantly younger than I am, and it turns out he had been ill for several years. I had not noticed him suffering, but in retrospect, it strikes me odd that I did not see him and his wife at WCI last August. I had become accustomed to their presence, and having missed them in 2022 did not strike me until the email. 

The McCluskeys have been fixtures in the outreach effort of WCI. In the years I have known Dr. McCluskey, I have never seen him more animated or engaged than when he was discussing the community outreach that WCI enables and facilitates. His face would literally light up when discussing those who are in need of assistance in the world, and he was an avid advocate of the workers' compensation community being, remaining, engaged and involved. He was a cheerleader and advocate.  

There were many conversations over the years. But I will remember Dr. McCluskey primarily because of his passion for serving his community, this community, the world of workers' compensation. He advocated strenuously for our engagement and participation. He encouraged, cajoled, and coaxed us to be more than we are. Dr. McCluskey believed in us, our capacity, our energy, and our commitment. He reminded us we could make a difference. He was an exemplar and inspiration. 

He is survived by his wife Diana. She too has long served on the WCI Programming Committee. They were listed as "co-chair" of the outreach effort, and their enthusiasm was collective. They were persistently immersed in this community and inspired by it. They led, they worked, and they accomplished. Our community is less today because Jim has passed. He will be missed. His smile and enthusiasm will be missed. His leadership and commitment will be missed. 

Too often. I find myself writing posts like this too often. As we age, perhaps this is a natural progression. I find it troubling each time. Godspeed Dr. McCluskey and peace to yours. 

 

Positioning Comp

There is a recurrent cry, building to a crescendo. The workers' compensation community is greying and in some instances maturing. We are seeing the exit of the last of the Silent Generation as we see the continuation of the Boomer exodus. The time draws nigh that this space will be left to the GenXers and Millenials, as they struggle to pass their wisdom and experience to a Generation Z that is no more like them than they were like us.

I have written about this before. The generational change was one of my talking points at the Mississippi Workers' Compensation Educational Conference in 2018 (seems like yesterday). I focused on it previously as Kentucky Celebrates a Centennial (May 2016). I mentioned it more recently when we focused on A New Beginning (August 2022) at the WCI. I have striven to integrate this into various discussions and presentations over the years. The generations are changing, comp is changing, and the future has come to our doorstep.

The Point webinar, starring the unflappable Bob Wilson, will present again on May 10, 2023 at 1:00 Eastern Time. Registration is open. This will focus on a challenge that we see as tripartite: recruiting, retaining, and training. There are lamentations across the workers' compensation community, in various fields, specialties, and professions. The young are not flocking to this space. I focused on this most recently in Let's Make a Change (April 2023). We are going to have to build a bridge to the young.

The next generation don't seem to think like us, work like us, or value us. What "next generation" ever did?

The guests for this program are amazingly diverse, In no particular order (respecting our elders however), I begin with Les Kertay, PhD. Dr. Kertay is a [psychologist up in Tennessee. He is as involved in trying to improve the workers' compensation community as any, and has been striving for many years. His blog is a great spot to search for insight about mental health and how our workplaces and experiences are influencing us. It is my third favorite blog. Really. I am allowed to like my own best, right? No one puts a birth date on LinkedIn, but Dr. Kertay is actually older than I am (and that is an achievement in itself). That said, I guess him to be part of the Boomer generation.

We will be joined by Brittany Parr, MBA, who is an "Organizational Development and Change Management Coach. She is part of a multinational conglomerate that likely has its share of change and evolution to endure, overcome, and build upon. She appears to me to belong to the Millenial Generation (1981 to 1996; the largest portion of the American workforce, according to Pew.

Jamie Bourg, CPCU, AIDA, AIC, AIC-M, & ARM, will also drive this conversation. She is a Vice President of People Operations with LWCC out in the land of the LSU Tigers. And, again judging by the potentially wildly inaccurate college graduation dates, she is likely a Gen X member (1965 to 1980).

And, of course, the conversation will be driven by the inimitable Bob Wilson, EIEIO. We have given up guessing his age, but we are all but certain he is not Generation Z (1997-2012). He will characteristically drive an animated conversation in which we will raise many issues, paint with a broad brush, and strive nonetheless to drill down to some focal take-homes that can help the community with this challenge of generational transition. 

Questions I would like to see discussed include:

1. How do we effectively deal with people that do not think like us?
2. How do we accommodate the vast spectrum of perspectives?
3. How can we better understand each other in forging forward?
4. Is all this focus on "generations" just stereotyping?
5. Is there a genuine distinction in our focus between recruiting and retaining?
6. How do we build a bridge to the next generation?
7. How do we get them to cross that bridge?
8. How many licks would it really take to reach the center of a Tootsie-Pop?

So many questions, and so little time. We spend about an hour on each of these spontaneous conversations. We strive to get through the circumstance and noise and actually get to The Point. I am hopeful that you will join us on May 10, 2023. 

Register at https://workcompcollege.com/the-point-webinar-positioning-comp-for-the-next-generation/

I'm a Doctor Too?

Back in 2006, I enjoyed some debate in the legal world spurred by the title of our legal degrees. Most people that go to law school earn a Juris Doctor. In the earlier part of the twentieth century, it was an LLB instead, a bachelor of law. There are some lawyers out there that insist on calling themselves "doctor."

Should Lawyers Call Themselves Doctors of Law? The issue in Florida arose because some felt the term "doctor of laws" in a lawyer's advertisement was "misleading," but not if "that was the phrasing used on the lawyer's diploma." Some disagreed and argued this was "a cultural issue." A member of the Board of Governors in that 2006 debate "noted that in Spanish-speaking countries it is customary to refer to attorneys as doctors in law, and common for clients to refer to their attorney as 'doctor.'”

In 2011, the Above the Law Blog published an article titled Any Lawyer Who Calls Himself 'Doctor' Like a Ph.D. Should Get Punched in the Mouth. I won't ruin it for you. You will have to read the story to see what that lawyer's opinion is. The author is a bit dismissive of others as well, noting "I don’t even think Ph.D. holders should call themselves 'doctors' unless they can prescribe medicinal marijuana or something." That is a bit harsh, knowing that no one in America can prescribe marijuana, being that it is illegal in all 50 states and all. 

An interesting series of arguments appear on LinkedIn authored by Alexander Whitaker, a university President (2020). The author makes arguments with his perceptions of this title in the practice of law: "it could mislead clients into thinking their attorney had some sort of specialized expertise beyond that of a normal lawyer." In academia, the author sees challenges in that (1) its use harms "credibility with our PhD colleagues," and (2) It "would seem to suggest some insecurity about one's academic bona fides without such a title." That "insecurity" argument might cut both ways? 

The logic path Dr. Whitaker propounds is, in part, based on the fact that there is no dissertation involved in earning a juris doctor. If that logic path be our guide, then a valid inquiry might be whether medical doctors, chiropractors, and nurse practitioners prepare and defend a dissertation. Or not. Perhaps in some instances, there is room for debate? Or, perhaps there are sounder arguments than the dissertation distinction?

Nonetheless, the Florida Bar Board of Governors decided later in 2006 that "it is alright for a lawyer who has a juris doctor degree to say in a Spanish-language ad that he is a 'doctor en leyes,' or doctor of laws. But, the Bar News article cautioned "Some board members said they might vote differently if the ad was in English." That seems like a bit of a "that depends" answer. I'm not saying the Bar would tell you not to put "doctor" in your lawyer ads, but there is a chance they might. 

According to Medical Justice, the question is not all that settled even if you went to medical school. That post is largely California-centric and so it must be taken with a grain of salt (states are largely different and independent, so make no assumption your state is the same). But, it is also humorous in its cautioned approach. It notes that in California, graduating from a medical school may not be enough. The author suggests that if you lack a medical license then referring to yourself as "doctor" may put you "at risk for being charged with a misdemeanor. That's potentially serious.

Admitting that the analysis is somewhat complex, the Medical Justice author asks "How about Dr. Dre, the rapper? Or Dr. J, Julius Irving, the former professional basketball player? And, of course, PhDs? JDs? What about them?" That is obviously tongue-in-cheek. That said, what an honor to be lumped in with Dr. J? Is there any reason we cannot all refer to ourselves as professional basketball players?

One commenter there noted "Have you ever known of a Ph.D. answer a call on a plane for a doctor? Seriously?" No, but I did see a random guy answer such a call once. It worked out fine because he had stayed in the right hotel the night before. There is also mention in this article regarding a psychologist filming a television show in California. Humorous or not? perhaps depends on perspective. 

I know a fair few attorneys who teach at various colleges and universities. They are commonly referred to as "doctor." Contrary to President Whitaker's advice, this occurs. I strive to keep my students from referring to me that way, as well as discouraging "professor," and other such laudatory titles. I have found over the decades that the use of such terms does periodically inflame the emotions of the full-time faculty. My university identification says "instructor" and that is good enough for me. Some students lament that is an awkward title to use, and I encourage them to just use "mister," or "Dave," instead. I will answer to "hey you." I have had many titles over the years, and been called many things that are not fit to print here (yes, I hear you; no it doesn't bother me). 

This topic returned to me when I read an interesting piece on Microsoft Network. It centers on an individual who is in an internal medicine residency, having finished medical school. He recounts a recent family gathering at which his cousins, "a chiropractor, and . . . . a nurse practitioner" held forth reminding him that they "were doctors too." This gentleman essentially told them those "aren't the same things as a physician at all." I found myself wondering if they were in California?

This apparently led to family discord and discussion. At least one family member agreed with the medical doctor and asked the cousins to stop using the title. That did not settle the issue. The cousin who is a nurse practitioner "uninvited" the M.D. gentleman from a "grand opening of her private practice." She reportedly "said she only wanted people who would cheer her on to attend." She might want to write a dissertation on something and get a Ph.D.?

Some might posit that a family member could be cheered on as an individual in general terms. Is the title one prefers a "make or break" in terms of cheering? ("You can only come to my grand opening if you call me 'Your Grace'; if you won't call me that, you are not cheering me on"). The original Reddit thread is interesting. Many took time to comment. One of the challenges with Reddit is the volume of responses and the difficulty in drawing a consensus. That said, there are a few comments there that are rather dismissive regarding the cousins. 

The whole point of the discussion may be focused upon what one wishes to be called. Is there a degree of hubris involved in titles? Perhaps. Should you be proud of what you have achieved? Certainly. Is there some chance of culture playing a role? Apparently. Can the law provide us guidance? In California.

In July 2021, I penned You Can Call Me Dave. At the end of the day, there is no point in being dismissive or insulting to anyone. If you desire to advertise your juris doctor, check with the Bar. If you find yourself in an academic environment or a particular cultural environment and wish to be called "doctor," why not? Well, President Whitaker makes a reasonable case for why not, but one might disagree. The Medical Justice article makes for sound arguments to consider also. But, seriously, watch out for the author from Above the Law Blog though. You might get punched.

Tonight's Plot

There was a wonderful cartoon creation that became popular in the mid-1990s, a throwback to the days of thoughtful and imaginative entertainment. This involved Pinky, a somewhat challenged mouse serving as sidekick to the inimitable villain of the series known merely as Brain. Not a misspelling, the show was Pinky and the Brain (P&B), a Steven Speilberg production. Two able mice on a mission for world conquest.

The episodes often included a tag-line exchange between our two enthusiastic plotters:

Pinky: Gee, Brain. What are we going to do tonight?

The Brain: The same thing we do every night, Pinky. Try to take over the world.

In every episode, they were going to take over the world. In a classical homage to many villains battled by James Bond, Matt Helm, Our Man Flint, and Austin Powers, these villains persisted in outrageous and humorous attempts to take over the world. They never dealt with the challenges we face today. Those super-spy movies were myopic in their focus on the Cold War, the Space Race, the War on Drugs, and other distractions of madmen. They did not touch on the threats of identity theft, computer hacking, financial meltdowns, ghastly viral pandemics, and more.

Brain was confident. Asked once by Pinky why he was taking over the world, he assured "Because with me in charge it will be a better place."

P&B tried to disrupt a UN peace summit. They attempted to scam a Russian Czar. In one episode they sought to replace the Declaration of Independence with a Declaration of Obedience (not a novel idea). In a tribute (perhaps) to Professor Alfred Kokintz, they once sought to extort foreign aid from the United States. They started a cult, attempted to persuade world leaders to merely give in, and launched a reality TV show. Great ideas all. In an episode that might not make it today, they even plotted to marry for money. They were entertaining and suitable for all ages.

I think of Brain as I ponder what I will do when I take over the world. Make no mistake, I am plotting and planning. And yes, "with me in charge it will be a better place." My latest plan is a computer virus I have been working on. It will infiltrate the email systems of the world and permanently disable the "reply all" function. Mwahahahahahaha.

In the process, I believe I can cut the inbox traffic of most Americans in half, to their unmitigated joy and delight. There is nothing more perturbing than an inbox eruption and landslide caused by a colleague or connection reaching out to a dozen or more contacts (listing them in the "to" category). These inquiries are often innocuous or sometimes even meaningless. Nonetheless, there are times you need to reach out to many people.

Note that if you paste all those addressees into the "bcc" category, the "reply to all" button won't function. Yes, by being a considerate sender/originator, you too can help save the world. But I digress. 

That innocent entreaty sent to 12 people asking if Thursday or Tuesday is better for a meeting leads all those addressees to reply. Well, if only. They, for whatever reason, seem to all pick "reply all." Some of the challenge here is the iOS system (your iPhone) that defaults to "reply all." You have to manually constrain your response to simply "reply." If I could tell you how to change that default, I would. My virus will change it, Mwahahahahahaha.

In one recent eruption, there was an innocuous and innocent inquiry sent to a great many in the workers' compensation world (193 of them). The responses soon followed: "I can," "I can't," "I can." Within minutes, one respondent we will merely call "Pinky," hit reply-all, and asked "Please, Please, Please---LET THIS BE THE LAST REPLY ALL." (Note the all-caps, SCREAMING, frustrated). Amen. Ditto. Same. Hey, "I didn't get a harrumph outta that guy!"

So, the question really comes down to this. Will you, can you, use the bcc function to hinder the recipients of your message? That would be great!

Could you, will you, refrain from the "reply all" discord and dissonance? Or shall I really unleash my virus and take over the world? It is largely up to you. As Smokey says "only you . . ."

That said, I would have no idea how to write a computer virus. Sorry. So, if you want a virus, this will have to be a do-it-yourself. Please delete your own hard-drive, mail your own bank details to everyone in your address book, and forward this post to everyone you know. Thanks for your support, patience, and participation in this do-it-yourself plot. 

More importantly, thank you for using the "bcc" when you must, and the "reply to all" only in the event you honestly and consciously believe that all 193 recipients need to know your answer. When you are not conscious and careful, you are merely filling everyone's email box with unnecessary emails that distract and waste time. 

With your help, we can end this scourge. And, in the process, you will forestall or at least delay my plot to take over the world. And, as Brain repeatedly asked, "are you pondering what I am pondering?" Let's hope so. Let's hope you are pondering a world without cascading email eruptions, annoyance, and waste. 

Let's Make a Change

I was honored to be invited to participate in the Deconstructing Comp podcast in April 2023. Yvonne Guibert and Rafael Gonzalez engaged me in a conversation about Worker’s Compensation, perceptions, concerns, and our future. Several thoughts flowed from that interaction, illustrating again the benefits of collaboration and communication.

Four many months, Worker’s Compensation pundit. Bob Wilson has been relating an interaction regarding perceptions of this community. As I recall the story, he was speaking with a claims professional, and their adult offspring. Bob inquired about the offspring's willingness or motivation to work in this community and was met with rejection. Asked why, he was told that this industry is all about pushing paper, filing reports, and gathering statistics. The young person apparently felt it all seems rather tedious and boring. 

Bob reportedly suggested a different viewpoint. He questioned whether the person would feel differently if they were told that this community is about “rebuilding shattered lives.” That is perhaps an oversell, we deal with many who are not "shattered," but nonetheless need expertise, patience, and compassion. When I recounted that quote on Deconstructing Comp, Yvonne suggested that this reinforces a persistent complaint of "branding.” I had not thought of that term in many months, but it is most apropos here. What first impression are we leaving with people when we discuss Worker’s Compensation? In our first encounter, what is the lasting message?

The second point I raise is one upon which there is little dissent. Persistently, consistently, and perniciously, I hear discussions of the challenges of hiring and retaining young talent. As I have discussed here, repeatedly, I am acutely aware of the fact that my day grows nigh. Fortunately, my shoes will be easy to fill. That said, there are many critical positions throughout the Worker’s Compensation community that will be much harder. We hear complaints from medicine, case, management, actuarial sciences, legal, and on, and on, and on.

Not so long ago, I touched on this in The Time is Now (April 2022). But I have been on this topic for a decade: The Things You Think Are Precious (August 2014). I am participating in producing a program aimed as this challenge in the legal profession, Work Comp Academy (February 2023). That Academy is almost upon us, with the first rendition May 19, 2023, in Orlando. That is very exciting and we have Judge Kerr and Mediator Gonzalez-Fajardo to thank for the inspiration and so much effort and organization. We are not changing the whole world, but perhaps starting on a small corner. 

Today’s professionals are finding it increasingly difficult to recruit fresh talent interested in this market. This may have something to do with branding. However, it is as large an issue in the secondary consideration of retention. The fact is it does us no good to recruit the best and brightest to this community if we frustrate their progress and discourage retention. These two, recruiting and retention, must be viewed in tandem, one the yin to the other's yang.

I get it. “These kids today.“ I get it. Find me a generation that looked to pass the torch and uttered the phrase “these kids today really get it." Anyone who thinks that the Greatest Generation believed in the Silent Generation is mistaken. If you think that the Silent Generation was tickled to see us Boomers take over, you’ve really missed the boat. Certainly, the Boomers have been hard on the Millennials. And if anything, there’s been a bit of a frontal assault on GenZ.

What is the distrust of “these young people today?“ Well, no human likes change. Change is uncomfortable. Beyond change, there’s likely some jealousy. The next generation, from my biased perspective, seems clearer about their wants and desires. They are empowered to find their own goals. They are, in many ways, stronger than I ever was at their age. Jealous? I had not considered that, but as I sit back and ponder, maybe I am. Are you?

Let’s be real. The generational opportunity to parent these people is passed. The values and predilections that defined them are now set. The future, whether you’re willing to admit it or not, is theirs, not ours. We may, as the biggest brontosaur in the swamp, wander in circles, chewing on leaves and lamenting “these kids today.” But they will be hunting, thriving, and succeeding long after we have passed on to other forms of carbon.

Like it or don’t, there’s one conclusion: we will have to come to the next generation. They have aptly demonstrated that they are not coming to us. Somebody once said, “it’s better to light a candle than curse the darkness.” It is so old, I can’t find the origin. With every day that passes I kind of identify with that sentiment more. Why not light a candle? In your branding, your enthusiasm, and your involvement?

So, it’s time for the Boomers to take a long, hard look in the mirror, and ask the difficult question: what have you done for me lately? We’ve all spent a career listening to that question. Often in business, it’s the entreaty from our customers. That customer has been justified at times, petulant at others. What will you do at your stage of life to light a candle? Millennials, don't get too comfortable. Your day is not that far off. 

How far do you live from the nearest Florida college? Did you know there are about 74 of them? How about contacting the leadership there to see if you can’t find some classroom opportunities to talk to young people about your profession and its benefits? Maybe take the time to share some of your frustrations, misperceptions, and challenges. Go honestly convey that here lies both challenge and opportunity in your chosen occupation. It's worthy of consideration.

When you are in the public and afforded an opportunity to discuss your profession, do you demean, discount, or distract? I heard someone just last week admit her profession is "only comp." She did not mean a constraint or a specialty, she was self-deprecating and demeaning. That detracts when we could build instead. And worse, that was her demeaning herself. I am certain it is unwarranted. Sure, she did not get to be an astronaut, but then none of us did. 

Too often, we hear discussions from people about how they "fell into Worker’s Compensation." This makes it sound like a mistake, an accident, or an unfortunate outcome. And yet, so many of you reading, this blog have so much to be grateful for as a result of this fantastic little corner of the world. When you get the opportunity to speak to others, why not seek to find joy and convey your personal satisfaction and gratitude for the many benefits that have been bestowed upon you?

There is a disturbing lack of appreciation in this environment. This one is perhaps the easiest one to change. At the conclusion of the podcast, Rafael was so gracious and complimentary. If you don’t know, Rafael, your loss. Actually, if you don’t know, Rafael, I’m curious what bunker you’ve been hiding in. but I digress, I likewise expressed my gratitude to Yvonne and Rafael for being included on the Deconstructing Comp podcast. 

Certainly, in season three of the podcast, it does seem as if they’re “scraping the bottom of the barrel,” but I guess inevitably they were going to work their way down to the likes of me eventually. But I was grateful. And I expressed that to each. Do you thank those around you? Do you take the time to build up or are you tearing down? Are you Pooh or Eeyore? 

One of my favorite professionals in the workers' comp space, who will remain nameless out of my genuine respect, habitually closes conversations, emails, and other communications with a very simple tagline “thank you for all you do.“ It is compelling. It is appreciative. It is genuine. 

He says this to me often, despite the fact that he toils in a profession utterly unrelated to my day-to-day, hundreds of miles from Florida. Yet he appreciates the little bit that I manage to contribute. When is the last time you simply told someone "thank you?" How does it feel when someone says it to you? Are you able to accept that it may be even more important to the next generation? Remember your challenges, doubts, and perhaps even frailty in those early days?

This post is long, and the day is short. Our professions and this community are worthy, and similarly, time is short. We must recruit, retain, and respect those who will take our place in not so many years. How, when, and where you pass that torch is perhaps uncertain, but the day is coming. Are you preparing for it?

When will Holmes Surrender?

Some will remember the great losses suffered when a miracle machine from Silicon Valley turned out to be Technology too Good to be True (September 2021). If you don't remember the story, a host of fairly smart people were convinced that a little machine the size of a laser printer would revolutionize the medical testing market. That is not to doubt those investors. A great many miracle products exist in our world that were unimaginable and unbelievable at some stage. But, big and small, they were taken in by an intelligent and articulate wunderkind. 

Or, were they taken in by the wunderkind's paramour? The wunderkind has persistently asserted that she was duped like everyone else by her then-lover. Is Elizabeth Holmes a perpetrator or victim? National Public Radio (NPR) concluded Holmes is "a skilled and charismatic pitchwoman, (that) raised nearly $1 billion from investors based on a mountain of lies and coverups." Let's put NPR in the "not a fan" category.

A jury convicted Ms. Holmes. From its perspective, she was to some degree, to some extent, a perpetrator. The British Broadcasting Corporation (BBC) reports that it is now up to a "judge in California" whether to put Ms. Holmes in jail while "she appeals her conviction." That is an intriguing statement, and perhaps a criticism of the justice system.

The conviction was on January 3, 2022. That is 458 days ago, which is about 15 months. The Ninth Circuit Court website says that criminal appeals there are generally decided "approximately 3-4 months after briefing is complete." Granted, it was a four-month trial. Granted, writing a brief is significant work. But, regardless of the length of the trial, the appeal will address specific issues. In all, the principal brief "may not exceed 14,000 words or, if handwritten or typewritten, 50 pages." This blog post is about 1,000 words (I know you cannot tell, but it took about an hour to write). Some may feel that the principal brief, answer brief, and the rest of this process should have concluded by the 15-month mark?

Back to the primary question, should Ms. Holmes be incarcerated while the appeal is pursued. In that question, there is room to wonder if this refers to the present appeal (the Ninth Circuit), or would include the time for potential further appellate review thereafter (Supreme Court). There is no guarantee that such a review would occur, would she remain at large as it is requested and considered? As it is, she has been free since her conviction, 458 days. In the determination of whether she remains free or must report to detention, there may be various foci and issues. But the BBC is concerned with the potential that jail will separate Ms. Holmes from her young children. It characterizes this potential as "a blind spot in the prison system."

The analysis proceeds to highlight the experiences of various mothers and children impacted by difficult circumstances. Those circumstances are each the result of the mothers being convicted of engaging in criminal activity. It recites innocent childlike questions reflecting a lack of comprehension regarding why one's mother is unable to be a more regular and local presence in a child's life. The recounting of a two-hour bus ride to prison for a maternal visit is a vivid example of the challenges resulting from incarceration. The children do not understand. It is undoubtedly difficult to explain that mom is absent because she committed a crime. 

The BBC makes several points that are of interest. It laments that expectant mothers are imprisoned, that their own life choices have interfered with their personal freedom and their familial interaction opportunities. The unpleasantries of being a convict are illustrated in descriptions of unwelcoming living arrangements, cellmates, and more. The article goes to great lengths to engender sympathy for these inmates. One has to empathize and perhaps even sympathize. That has to be a difficult environment and situation. 

One cited example highlights those who give birth in an incarceration facility. One was allowed only 15 minutes to hold her infant daughter before they were separated. This mother was not visited by the child thereafter. She was fortunate that an aunt undertook care and raising of the child. But, the aunt was not able to facilitate visitation. Only when the mother's term was served were this mother and daughter reunited. That engenders some sympathy. 

There are multiple potentials in this coverage for one to feel sympathy for the mothers and their children. Those children absolutely committed no crime. No child gets to choose their parents. In the movie Parenthood (Universal 1989), they rather colorfully noted that anyone can be a parent. No license is required, but the movie noted "you need a license to fish." It is an interesting world we live in. I have pondered whether the protagonist there was against fishing licenses, proposing parenting licenses, or both. 

Returning to the instance of Ms. Holmes, the BBC notes that whether she is jailed or not will be within "the discretion of Judge Edward Davila." Decisions are expected "sometime in the first week of April." Some doubt the chances that she will be afforded this relief, noting that delay "would mark a significant break from the norm, one that may be linked to Holmes' relative celebrity and privilege." Perhaps, more accurately, that should read "further relief?" One might wonder if "the norm" is for someone convicted of felony fraud (according to the Los Angeles Daily News) to be afforded 479 days to report to prison (the Justice Department notes that upon conviction she was ordered to surrender to prison April 27, 2023).

Is there equality in the American justice system? The stories recounted by the BBC each involve a mother that was convicted of crime. They were each sentenced to a prison term. That service interfered with the life of a child or children. That is troubling for the children, and it is hard to hear of their turmoil or torment resulting from the parent's absence. But, each of those mothers was convicted of a crime. Is there a "blind spot" in the criminal justice system or merely a "blind spot" suffered by the mothers that choose to commit crimes?

Considered differently, is there a disparity in the justice system regarding the treatment of those who are privileged? Is there a "blind spot" that allows some convicted felons to remain free for 479 days, ordering their affairs and tending to their families, while others are incarcerated immediately? Is there a "blind spot" in privilege that allows some to remain free pending appeal while others are incarcerated? 

The BBC reports that there are those who believe that (further) delay in serving the sentence is a long shot for Ms. Holmes. A professor is quoted that such a ruling "would be stunning." That teacher says that any accommodation for the billion-dollar pitchwoman, in light of the many other mothers serving their time, would be "an indictment of the system," and an illustration of "how racialized our system is." That is an interesting perspective and may focus debate on the accessibility and equality of the criminal justice system. 

However, this glosses over much that will likely be in the mix. There are other comparisons that are perhaps necessary. Is there a distinction based on whether the crime was violent? Is there a distinction in the magnitude; is theft of a watch the same as the $1 billion discussed regarding Ms. Holmes? Is the delay a product of the federal court system compared to how state courts might more immediately incarcerate following conviction?

In all, the situation with Theranos has raised questions and conversation. In 2022, following the verdict, the BBC questioned "has the Theranos scandal changed Silicon Valley?" Have we learned lessons about technology, start-ups, and innovation? In the broader context, what can we learn about our justice processes, perceptions of disparity or privilege, and the challenges of taking responsibility for actions?