Years ago I read Zen and the Art of Motorcycle Maintenance (Pirsig, 1974, William Morrow and Com.). In fairness, I likely only read the Cliff Notes, but that was a different era. There are some interesting philosophical themes underlying that account of a trip across the country. A couple of quotes came to mind recently as I began to wind down from the annual pilgrimage which is the OJCC annual report.
As preposterous as it may seem, that report is a big and stressful part of each year. I begin work on the product each July, and it is due December first. It should be reasonably simple to complete in that time, but it is a persistent challenge. In reality, my part has to be completed by the first of November to allow time for others to accomplish the challenges of printing, posting, and distributing. It has been a persistent challenge for me over the last 18 years.
In Zen, the author notes
“The truth knocks on the door and you say, ‘Go away, I’m looking for the truth,’ and so it goes away. Puzzling.”
“We’re in such a hurry most of the time we never get much chance to talk. The result is a kind of endless day-to-day shallowness, a monotony that leaves a person wondering years later where all the time went and sorry that it’s gone.”
These each resonate with me this morning. I certainly wonder where the last 18 years have gone. I have been in this role for longer than any other job. Last time I counted, I had over 25 jobs listed on my CV. I have enjoyed a diverse and engaging work life over the eons. Something has kept me in workers’ compensation and the OJCC. I struggle with identifying what.
But the truth. How often do we stop and think about the truth? How prone are we to ignore what is going on, to ignore what might inform and improve? Are we able to pull our heads from the sand of day-to-day and look around us once in a while?
I had no sooner finished the 2022-23 Annual Report than I dropped down to Sarasota for an engaging dinner and conversations with the Sarasota Bradenton Claims Association. I saw some old friends and met some new ones. It is persistently refreshing to be back at in-person events. I did 10 live events in 2023, and perhaps as many virtual ones. The Sarasota event was an eye-opener in several ways.
First, I was surprised to meet people who are working to become part of workers’ compensation. That is refreshing. We need new faces, ideas, and dreams. It is heartening to find new arrivals striving for engagement and involvement. So many great conversations, a couple of new ideas, and a refreshing celebration that the statistics part of the year has closed.
There was significant discussion of the mediation and trial practice. Mediation is booming in Florida. We were first to try it, first to mandate it, and first to take it full virtual in the pandemic. Mediation, compromise, and its community are in our collective DNA. But what of trials? With each year, I perceive a diminishing volume of trials. This is not a homogeneity. Each year some judge somewhere seems busy with trials. In microanalysis trial waxes and wanes. But, overall, trials are diminishing.
Perhaps in your day-to-day, this is not apparent. Perhaps you are so busy looking for the truth that you don’t hear it knocking on the door. The decline in trials has been knocking at the door for decades. Trials were on the decline before alternative dispute resolution tools like mediation became prominent towards the end of the last century. And it is not just workers’ compensation.
But the decline is increasingly pronounced. The transparency of litigation systems and processes has enhanced data availability. The increased societal focus on metrics and measurement has enhanced our perception and appreciation. The ease of communication has facilitated dissemination and discussion. There is arguably nothing new in the fact that trials are diminishing, but these factors are somehow making the discussion more prevalent, if not new.
In 2017, Judicature (Duke University) published a deep dive into the decline of trials in a broad context. The article is Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does it Matter? With a view across federal and state, civil and criminal, the authors provide a critical analysis of the state of trials and the trends.
I like the “Not Quite Gone.” That reminds me of that cartoon of a bird eating a frog. The Frog is halfway down the throat, but its little hands (in this cartoonist’ world frogs have opposing thumbs and fingers) are grasping its assailant and striving to choke the bird out. The caption reads “never give up.” That is like "not quite gone."
There is a historical perspective on the once widespread prevalence of trials, which: “once played a central role in the American legal system.” There is criticism for the ambivalence or ignorance regarding both status and trend. The authors cite contributors including “mainstream media,” “Hollywood,” and others. There persists a Hollywood fixation on trial as if it remains a frequency. This is perhaps beyond telling the knocking truth to go away (ignoring) and trending instead toward mischaracterizing?
How many young people choose law school thinking they will suit up and head to court daily. Do they buy the Hollywood tripe, or are they wiser than that?
There are a variety of interesting statistics in the article, which is well worth a read. But, to summarize:
Civil cases in federal court resolved by trial about:
20% in in 1938
12% in 1962
2% in 2002
1%. In 2017
Boy, if you were talking about market share, lung function, and a slew of other topics, that is a precipitous decline. The conclusions are essentially that systems are “ all about plea bargain.” A study is cited for the conclusion that “by 2002, civil cases were resolved by juries in state court less than 1 percent of the time” . . . (in) criminal cases . . . 1.3 percent.” The authors note that “rates are even lower today (2017).”
Also intriguing is the authors’ explanation that all of this is complicated by the definition of the word “trial.” As the law has evolved, there has been some tendency in the courts to apply a broad definition of trial. It is noted that the current definition trend “certainly conflicts with the popular understanding of the term.” And, the broad definition is currently “a contested proceeding where evidence is introduced.” The authors say this inclusive definition “expands the number of trials exponentially because a single case can actually give rise to multiple trials.” Despite that expansive definition, trials are nonetheless plummeting.
I read that and reflected on the struggle the OJCC has had with defining “Trial.” There have been challenges. One judge used to define “trial’ as “anything that raises my blood pressure.” Others included any time a petition resolved at the comp office. I will never forget the ingrained habit of Pensacola lawyers to come to trial as scheduled but instead would enter stipulations on the record. It was an overly formal method of resolution, indistinguishable from stipulations off the record, and frankly a waste of resources. I was assured my predecessor counted those events (4-5 each week) as “trials.”
The current OJCC definition of trial is a bit more specific. It includes final merit hearings that adjudicate a petition and hearings on verified motions for fees and costs. To qualify, there must have been a hearing, and there must be a substantive order that includes both findings of fact and conclusions of law. It is a reasonably restrictive definition compared to that above. And despite that concise definition, trials seem to be decreasing.
That definition has not come with unanimous consent. Judges argued for including hearings on continuances, stipulated motions, and other mundane and minute. I reflect on those who have advocated for definitions on the grounds their proposed definition would “make us look better.” I think of those definitions we use, and the accusations that they are “unfair” or “unflattering.” We are not here to “look better,” be “flattered,” or to mislead.
Is the purpose of the definition to be flattering? Is this like those who have recently adopted new definitions of “obesity?” See What's in a Name (August 2020). It is a lot easier to change the definition and escape its parameters than it is to lose the weight. But just because we define the word in a way that is less accurate, more appealing, that does not mean we are physically fit. It just means we are imaginative and persuasive.
The fact is, we are at a crossroads. There are fewer and fewer competent trial attorneys. The process of constructing a case, establishing the elements, and presenting it is an art. As the old and weary stride off into retirement and beyond, they are leaving behind a population that is not as practiced and experienced. The old were no better inherently, but they grew up in an era in which going to trial was regular, normal, and more frequent. They knew a time when trying two or three cases a month was not unusual. I hear from lawyers that they may get two or three a year now. The statistics above suggest that is declining.
The end of this discussion is that the world of workers’ compensation is changing. Gone are the days of the strong litigators, the arduous preparation, and the stress of trial. Now comes the day of the settlement. It is not new. It has been long popular. But its strength is still gaining, its benefits ever more apparent to its adherents. It is more appealing to the old lawyers who know how to try a case and even more so to the folks who are not so experienced. Trials, it seems, are perhaps doomed to the scrap heap of antiquity.
So why? Well, "Go away, I’m looking for the truth."
