In the world of workers' compensation, you never hear about ineffective assistance of counsel. It is a criminal law maxim. And yet, there are those who tell stories of lawyers who struggle with witnesses, evidence, and argument.
To be fair, you don't hear about ineffective assistance of counsel often in any context. Nonetheless, an action early this century made the news in West Florida. Despite the lack of news coverage, it is a motion often filed in criminal cases that result in a conviction. The Innocence Project says that there are some discernible patterns with them, and they say there are major categories.
"(1) lawyers who: failed to present defense witnesses; (2) failed to seek DNA testing or have serology testing done to try to exclude the client; (3) failed to object to ... or to evidence; (3); and failed to interview witnesses in preparation for trial or to cross-examine ... witnesses." Other examples were (4) "failure to investigate" and (5) "failure to present expert testimony."
The incident that made the news began with a lawyer who "tried to withdraw before trial" because his client did not pay the agreed-upon fee. When the lawyer was interviewed after, he explained that "he would have presented expert witness testimony" if he had been paid in full. Moreover, he claimed, "he gave '110 percent' to the case."
The lawyer complained that the judge was hard on his side of the case, "denying every objection he made." Criticized for calling his client to testify, he explained that "he did so to show jurors that Rolon hadn’t been coached into what to say.” The lawyer criticized the judge. That reminded me of a judge teaching a class in which a student plaintively inquired, "Why did you give me a D?" The judge/teacher replied, simply, "I did not give you anything; you earned a D." You get what you earn. There is no giving.
The order on the post-trial motion for ineffective assistance included that the lawyer "told jurors he had spent less than five minutes reviewing (his client's) testimony before putting him on the witness stand."
There was a Bar investigation, and in 2011, the lawyer was disbarred. In all, the situation provided a rare look into the perspective that can come from the bench.
Certainly, the perils of criminal law are easy to appreciate. The outcome for a criminal defendant may include loss of liberty or life. Nonetheless, the outcome of any trial can have life-altering impacts on the parties. The workers' compensation trial is no exception.
Employers may find their business interrupted by a workplace injury, employee absence(s), factual disputes involving various employees, and there are financial implications for the insured and self-insured.
The impact on the injured worker is as easy to see. The complaints and claims are related to injury, symptoms, pains, and even dysfunction, impairment, and disability. The outcome of such a trial can have profound impacts on the life and livelihood of the worker.
For either party, the challenges of Florida's workers' compensation statute, procedural rules, and evidence code can present a variety of hurdles, imperatives, and demands. The trial can present the unexpected, the contrary, and errors. Trials are stressful, and outcomes can be difficult.
Despite that periodic disappointment, the lawyer's best tool is readily available. Its employment is no guarantee, but there are no such guarantees in a trial.
The lawyer cannot control everything. We are reminded that "The race is not to the swift, nor the battle to the strong" (Ecclesiastes 9:11). But the trial will often go to the most prepared, the lawyer most familiar with the facts, the arguments, and the law. Despite all else, the lawyer can choose to be the most prepared. That does not make it easy, but the path is at least clear.
I tell my students all the time: "You cannot choose to be the smartest, prettiest, funniest, or a slew of other superlatives, but you can always choose to be the hardest working." Effort matters, and it shows.
