A Special Circle

Dante suggested that there is probable difficult terrain ahead for those who are less than stellar in their participation in the living world. He espoused several "circles" in hell. A Penguin Bool review describes them in some brevity and they need not be repeated. There is some humor there, but it is a workable overview.

The character traits that present dangers of such an eternity include Limbo, Lust, Gluttony, Greed, Anger, Heresy, Violence, Fraud, and Treachery. An intriguing list that some see as all-inclusive and others see as a good start. Each is tied to an eternal punishment, and thus there are supposedly after-life consequences to poor behavior.

The book review says such may include things like "You’ll have television, but all of the channels will be set to CSPAN," or being surrounded by "supposed 'IRS agents' who insist on being paid in iTunes cards," or "Washington, DC in February." Like I said, there is some humor. History Defined provides a more classic discussion of the nine circles.

Some who read Dante were thereafter taken with vague references to the "circles" thereafter. Many a criticism has begun over time with the wish that "there is a special circle for people that _________." I found myself on that page this week.

The national news came alive with the story of a misguided youth who decided that his wants and needs justify theft, (greed, violence, treachery). He decided to steal and thought the best victims would be some young Girl Scouts selling cookies in Fort Worth, according to 5NBCDFW. Hint for miscreants, jurors like young kids doing good and may not like big kids stealing from them.

There is a manhunt on for the young man accused of "grabbing a bag from behind the table before sprinting into the parking lot." He planned the hit well and made a clean escape. Kudos perhaps for the careful preparation. Shockingly, it turns out that the retailer or landlord there in Fort Worth had a couple of surveillance cameras and this young man is now a national celebrity. See Orwellian Store Security (August 2022). 

Who knocks over a cookie stand?

That said, there is a challenge in anyone that turns to thievery as a path to sustenance. It is difficult to understand in a world that offers great opportunities and a variety of safety nets. The national news just featured the amazing expansion of "campus food pantry" efforts to feed college students, 800 of them (pantries, not students). Anyone who got through college without discovering 100 ways to tolerate macaroni and cheese from a box, or the wonders of peanut butter as an entree, well kudos to you. But, the fact is that there is help everywhere. Society is doing great things, providing great opportunities through scouting and similar. 

Why people resort to theft and violence is troubling. This exists in the world around us though, and it seems to be increasing. Let me check Google. Thanks for pausing with me while I looked that up. The answer, according to the Marshall Project is clear. Violent crime is "up and also down." I like clarity in many things, but the "it depends" analysis makes for interesting reading.

That report explains its equivocacy with "Property crime and violence against young people are both up, recent federal data shows, but other crime trends are murkier." That is interesting in the draw. It made me want to pause to read the whole article, but I did not want to leave you waiting here for too long. The point crime is increasingly "against young people." That is troubling in a number of ways.

First, young people today, well anytime, are not as financially resilient. There are generally less resources and less favorable paths to recovery. Second, whether you like it or not, those young people are your future. As they succeed or fail, so goes society. You know, the society you expect to care for you in your golden years?

There is little doubt that the young cookie sprinter in DFW will be brought to heel. There is a clear still from the surveillance that is making the rounds on social media. Someone is going to rat out this misguided youth. Good advice, if he is reading this, turn yourself in and make it easy on yourself. A good bit of remorse and sincere contrition can go a long way in the American courts. As some cynics will note, perhaps he will not do so, and the intrepid system will have to hunt him down. Yes, the local police will not just do a report and drop this like they do most property crimes. They may actually investigate and make an arrest (after all, people are watching). 

The DFW dasher is not alone. If you take a moment with the web, it turns out that knocking over Girl Scouts is a thing. In 2023 a Troop Treasurer was arrested. There was an alleged 2023 snatch-and-grab in front of a retailer. It happened in 2022 in Houston. There was the Great Minnesota Heist of 2021. There was another one in Kentucky in 2020; and a counterfeitor was also accused in 2020 in Oregon. Some may see a pattern developing. In each instance, there is some individual responsible for taking what belongs to others.

The other pattern that seems to become an American norm is that such incidents are prone to generate great outpourings of both sympathy and dollars. In the end of this story, funds will likely be replenished. In the end, the girls robbed here will not suffer. They will learn some hard lesson from the miscreant, but will likely see a great outpouring that reinforces some great societal attributes. Hopefully, none of the instances end in more serious consequences, such as injury or worse. But, it returns me to the original premise. Is there a special circle in hell for those who would rob children?

If so, what would it look like? Perhaps those who find themselves in such circumstances will be surrounded by the colorful boxes of Thin Mints, Samoas, and Raspberry Rallies. Perhaps they will even enjoy the smell. But each box they open will be empty, a tribute to the vacant character of those who steal from children. Too harsh? Well, perhaps they will be surrounded by ample supplies of such cookies and yet not a drop of milk will be found? Or, maybe all the boxes are empty except the S'mores? Ouch, sorry if that cookie appeals to you.

Yes, this blog is still about workers' compensation and the law. I can hear Statler and Waldorf in the balcony. The point in the big picture is that stealing is troublesome. It need not be grand theft, and need not make the national news. Theft is theft. It impacts everyone. The miscreants who shoplift toothpaste make life hard for others as stores lock up shelves. They make life even harder as stores abandon neighborhoods because the economics simply do not work. Pundits and prognosticators make vapid statements about store closures, but the bottom line is that no one closes a profitable store (or stops eating Thin Mint cookies). 

Make no mistake, the prevalence of waste, fraud, and abuse adds to the cost of everything. Those who would supply a market will make economic choices. If the Girl Scouts are no longer outside your local grocer, perhaps there is a reason? Are we willing to forego the cookies, or shall we make our communities safe? 

In that vein, some believe that there is $34 billion in annual workers' compensation fraud. The cost of that is being borne by those who do pay premiums. The cost of that is being borne by the genuinely injured who face cynicism, delay, and doubt in their quest for valid and necessary care, treatment, and sustenance. Those who are responsible for waste, fraud, and abuse color the market for all who work, pay premiums and rely on this safety net. 

Are those who cheat this safety net, who deprive others through their actions, any better than the young man who stole the cookie money?

A Theatre for the Common Woes of the Common Man

The news is persistently about Deoxyribonucleic acid (DNA). It has been revolutionary in recent years both in the investigation of crimes and in the exoneration of those convicted in the past. This month, NBC News reported on a "50-year-old Colorado" case that was solved. The evidence led the police to "a career criminal who spent much of his life in and out of prison." The perpetrator is long dead, but there is a benefit in bringing closure.

There are rarely circumstances in workers' compensation that warrant the attention of the media. But such a case made the news in 1963. The story had curiosity, intrigue, and tragedy. Two developers with a "family dream called Tierra Verde" were allegedly killed in an air crash. They were father and son, and the father had "bought 2,000 acres of land in lower Boca Ciega Bay," back in the era when a landowner could dredge and fill. That era has long passed. The federal government began regulating dredging in the 1970s. 

The developers had made money in construction. They had "built bridges, tunnels, and military bases." Their company, "Berlanti Overseas Corporation was reported to have contracts worth more than $100 million in the Caribbean." It had been working on a "giant housing project in Cuba in January 1959 when Castro's forces took the island."

The developers convinced the public to fund a bridge between St. Petersburg and St. Petersburg Beach. They fought against the inhabitants who liked their "quiet little town" and were resistant to change. They spent $50 million dredging (about $500 million today). In mid-August, one of the developers, Fred Berlanti, took off from St. Petersburg-Clearwater Airport in a private plane. His destination was Miami, intending to pick up his father, the other developer.

That evening, bad weather diverted them from Miami to West Palm Beach, they departed close to midnight. There was a mysterious call supposedly from Fred, from Miami. However, the evidence demonstrated he was in West Palm by that time. One press report noted the "three types of time" and that the "Flight Timetable (is) a Puzzle." Different records or statements may have referenced "Eastern standard, Greenwich Meridian, and military time." The judge involved is said to have contacted "three conflicting witnesses" regarding the potential conflicts. See Sleuthing Addressed Again (January 2018).

The two developers did not return home on Friday, Saturday, or Sunday. The following Monday, "fishermen found first one, then two severed arms in the 730-square-mile Lake Okeechobee." There were reports of a "plane burst(ing)into flames late Friday or early Saturday." Officials continued to search, and more remains were found. A "torso, almost 20 miles from the spot where the other arms were found" was identified as Fred's.

Incredibly, "there was no sign, nor would there ever be, of the aircraft." The plane simply disappeared. But there was one witness who later testified he saw the plane hidden in a Guatemalan jungle. He also testified to seeing Fred in Guatemala. The press portrayed the witness as a character, and there was criticism of his credibility. 

The recovered limbs and torso were "not enough to put to rest the mystery of their deaths." There were "courtrooms and insurance hearings." Press reports said there were allegations that the two Berlantis were murdered. Others alleged that "the Berlantis had disappeared to collect insurance money," essentially to save the Tierra Verde development. There were allegations that the Berlantis had a "confrontational relationship with Fidel Castro's regime" as well as significant debts.

The forensic evidence was disputed. Though the FBI concluded that fingerprints found on the recovered body parts matched the Berlanti's, there was contradictory expert testimony. As the litigation proceeded, that contradicting "expert changed his mind and finally agreed with the FBI." Expert testimony can be challenging, see Daubert's New Day (May 2019).

And, amidst this major news story, "it seemed strangely incongruous that it should all come to rest in a workman's compensation court, a theatre for the common woes of the common man." Odd that even in the days of "Deputy Commissioners" there was a persistent misconstruction of calling things "courts." Mrs. Fred Berlanti had "filed a $14,000 workmen's compensation death claim," and it was contested. There were "months of workmen's compensations hearings" before Deputy Commissioner Silas Daniel. The press opined "The wildly bizarre story that has unfolded . . . is almost certain to have a dull ending."

The press noted that despite all the intrigue and accusations, the case would come down "ironically" to "three rather sterile issues." These were (1) whether Fred was "an employee of the Tierra Verde City," (2) if so "was he working or was he on a personal mission," and (3) "assuming he is dead, could his death be blamed in whole or in part on a previous physical condition." In truth, many disputes come down to "rather sterile issues." If we could just maintain our focus on them. 

There was evidence that "Fred was out of the business" before the crash. There was medical evidence that Fred "was suffering from multiple sclerosis and that it had affected his eyesight and use of his legs," though he had not told his wife. Other press reports said the diagnosis was "muscular dystrophy." Whether there was a medical dispute or just bad reporting is lost to the ages. Innuendo can become a fact to be proved or disproved. And some lawyers can run down a dead end with amazing zeal. 

The press stressed that the claim was for $14,000 and questioned the time and effort invested in the dispute. Clement Ehrlich of Miami defended the claim. He told the press, the case was "a Viet Nam," and "one move just led to another." The case, it seems, came to have a life of its own in both the press and the hearing room. This is more common through emotion than reason and logic. 

But, others contended the degree of defense in the workmen's compensation proceeding related to "set(ting) a precedent for disposal of other life insurance claims - estimated unofficially as high as $8.5 million." The trial before Deputy Daniel was extensive, "day-long." And, the press reports sound as if he thereafter did his own investigating instead of deciding the case on the record presented. 

In the end, after two years of litigation, Deputy Daniel awarded the $14,700 in workmen's compensation. This along with "several lots on Tierra Verde and life insurance payments" left the widow "very comfortable." She claimed that in the end, she gave up fighting and accepted what the estate offered. She found the financial experience "mind-boggling."

That $14,700 in 1964 was worth about $148,161.11 in 2024. The sum is coincidentally not dissimilar to the $150,000 cap on death benefits in the statute in 2024. There are some who love the dog whistle of a "race to the bottom" and decreasing benefits in workers' compensation. They rarely have facts to support their hyperbole. Deep dives into benefit comparison do not support any significant diminution in Florida benefits since 1935. 

Additionally, Deputy Daniel awarded her attorney $7,000 in fees for litigating the claim.

Would DNA have made the circumstances simpler? Would the results of DNA testing have been accepted, or doubted as "new and novel?" See Daubert, above. As we progress and continue to witness the arrival of new technologies, there is perhaps the temptation to believe each new tool is the next DNA, but with it the fear or anxiety that it could alternatively be the next empty promise.

There are lessons in the history. First, the facts in any case are likely to be disputed. Various witnesses may bring perspectives that are discordant and that perhaps change. That is for the lawyers and parties to pursue, not the judge. Litigation can take on a life of its own. Disputes can persist despite no one being able to explain the forces driving litigation. There is an obligation there. Attorneys must focus on the dispute, not the personalities. There should be professionalism on both sides of the table, and emotions should be relegated to their appropriate role.

And in the end, we should be proud not that trials are sometimes theater. But we should be proud that there is such an opportunity for the "common woes of the common man." Certainly, there is the probability that any trial will "have a dull ending," but the purpose of this system is not intrigue, notoriety, or excitement. The purpose is for ordinary people to have their day in hearing (no, not their day in Quart), to be listened to, and to pursue the outcome they hope for. Dull, is not a bad thing. Due process is not a bad thing. Finality is not a bad thing.

This post is compiled from press reports, and all of the quotes here are from the following articles:

Tierra Verde: Plane Crash Dashed a Dream, St. Petersburg Times, March 1985, Page 4a.

Widow had to fend off speculation, St. Petersburg Times, March 1985, Page 4a.

Mystery, Millions, Intrigue, and the Berlantis, St. Petersburg Times, July 4, 1968.

Adventurer Shocks Insurance Hearing, St. Petersburg Times, September 5, 1964.

Berlantis' Flight Timetable a Puzzle, Tampa Bay Times, September 29, 1964, Page 5

A coin in the head

I remember many years ago encountering an individual with a spinal cord injury. He had some assistive devices and used a "mouth stick." Another recollection is more recent of a person using a "tongue drive" that was somehow interpreting tongue movement to steer a wheelchair. At a conference in Florida recently, I watched a demonstration of a device that somehow allowed blind people to "see" and the connection to the brain there also involved the tongue. In each instance, I was astounded at the efficacy and more so the ingenuity. It is an amazing age in which we live. Few of us likely understand these marvels, but the technology surrounds us. 

But, there are hopes on the horizon of a deeper nature. I was astounded to learn that last month (January 2024) a company called Neuralink has performed its first human "brain implant," according to Business Insider. The device "is about the size of a coin," and they "embedded (it) in a person's skull." it has wires of some description that are used to interpret, record, and "potentially stimulate" the brain.

Artificial intelligence scares you? Imagine a computer hard-wired to your neurons. Business Insider says "The tech has some potential near-term medical applications." That said, it is rudimentary still (it notes "1,024 channels is not that impressive these days"). It sounds to me like an 8088 processor when we first heard of computers. Sure, it is magical and mind-blowing, but how long will it take to double in capacity? Will Moore's law be implicated here?

The article describes an intriguing installation process in which those wires are "punched" into the brain, "a bit like a sewing machine." No worries, the attachment is accomplished by a robot. And I let AI scare me. in this instance, the brain can apparently control a computer directly.

For the astounding nature of this, and the potential implications, the BI article notes that some scientists could be more impressed. Some say this has all been done before (I never knew), and one says "arguably its origins go all the way back to the 1960s." Another critic says

"If you just watched this (Neurolink) presentation, you would think that it's coming out of nowhere, that Musk is doing this magic, but in reality, he's really copied and pasted a lot of work from many, many labs that have been working on this."

Well, that is part of it perhaps. Maybe today's science stands on the shoulders of yesterday's? Did anyone say such things about various computers, softwares, and applications over the years? Does anyone out there think there was "no imagination" in the Star Wars, underdog, overcoming evil storyline? We still loved it. And perhaps it is not new per se, but a fresh look even at an "old hat" might be productive in finding it a new purpose.  

But as importantly, it turns out that one of the competitors of Neurolink, Synchron, involves a former "Neuralink president, Max Hodak." He departed in 2021, and Synchron "implanted its first device into a US patient" in July 2022.

What is more interesting is that there are multiple competitors in this space, and there seems to be a broad focus on developing innovative human interaction with information. It is perhaps unimaginable that we might forego keyboards and the mouse. If we are honest, perhaps even the screen becomes a novelty? Could the chip simply tell our eyes what to see? And as insane as it may sound, we have heard some whopper predictions from experts past.

Remember Ken Olson in 1977: “There is no reason anyone would want a computer in their home.” Or, Robert Metcalf in 1995: "But I predict the Internet will soon go spectacularly supernova and in 1996 catastrophically collapse.” Or, Nathan Myhrvold in 1997: “Apple is already dead.” But, maybe Bill Gates was the most disappointing, in 2004: "Two years from now, spam will be solved.” Here I sit on my Apple iPhone pocket computer surfing the internet and fighting my spam addiction. You cannot make this stuff up.

Yes, it is easy to make predictions and it is easy to be wrong. Spectacularly wrong is achievable. And, beyond such glowing examples, there have been a multitude of failures and flops. But perhaps none are more imperative than Elon Musk's. Apparently, in 2019, he "said Neuralink could in future 'solve a lot of brain-related diseases,' and named autism and schizophrenia as examples."

The Business Insider article is critical of both examples. And perhaps those predictions will not come to fruit. Perhaps the controlling computers will not either. But, perhaps, both predictor and critics neither know everything there is to know about the human brain. Perhaps as these competitors delve more deeply into what the brain can do, then is it possible science might advance, improve, and evolve?

The New Professionalism

I did a computerized search for the Florida Supreme Court opinion regarding professionalism ("supreme court professionalism"). It yielded results back to the 1950s. I re-sorted from "relevance" to "date" and the July 6, 2023 order was still number 8 on the list. The July 2023 decision is In re Code for Resolving Professionalism Referrals, 367 So. 3d 1184 (Fla. 2023). It could be easier to find. 

It is worth a read, with coverage of a variety of points. It culminates an odyssey that began in May 2021 while the world remained primarily concerned about the creeping virus and striving for normalcy. The Court noted at the outset that this is not a new effort. It has been ringing the professionalism bell for years. Unfortunately, many lawyers have steadfastly ignored the entreaties.

But 2023 brought a new code that "replaces the 2013 Code with the Code for Resolving Professionalism Referrals." 2023 brought a professionalism overview reminding that there are "four sources that make up the standards of professionalism in Florida; the other sources are the (1) Oath of Admission to The Florida Bar, (2) The Florida Bar Creed of Professionalism, and the (3) Rules Regulating The Florida Bar." in addition to (4) "The revised Professionalism Expectations."

I have the utmost respect for our judiciary, Board of Governors, and for many lawyers. That said, I have a mental image, I just cannot shake, of a little boy sticking fingers and toes in an increasingly porous dike. See Hans Brinker, Mary Maples Dodge, 1865. There is a leak or two out there, and you cannot fault this effort just on that basis. But, the bottom line is that the Court needs more fingers to plug all these holes.

What is new? That may be troubling to some. The Court emphasized that the adopted standards "apply to all forms of communication, including online communication, and to both in-person and remote (video or audio) interactions with others." The cynics in the crowd are likely wondering why that had to be said. Did someone escape punishment by claiming their abuse of opposing counsel or some party or witness was "only" remote or "only" online? Was there some sentiment that it is acceptable to berate and belittle in certain settings or paradigms?

What is new? The requirement for continuing education decreases from "33 credit hours" including "at least one . . . (hour) of an approved professionalism program," to "30 hours per reporting cycle," but that must include "a two-hour legal professionalism course produced by The Florida Bar and approved by this Court." So, fewer hours overall, more mandatory professionalism, and more focused or specific professionalism. The two-hour CLE is now ready. I sat through it recently (there are no choices, watching it is mandatory).

I am a big fan of professionalism. I like to experience it on the bench. I like to see it in the work that is filed. I would be inspired to see it in the real world. Imagine the national news running a headline like Furious Travis Kelce grabs, screams at coach Andy Reid. What an inspiration for all the children watching at home. Is this an exception of professionalism or the modern rule? 

Remember when professionals did not scream at officials, throw equipment, or otherwise emulate the "terrible twos?" The Bleacher Report compiled 25 Terrible Examples of Sportsmanship back in 2013. It remains compelling today. The best line in the article is "big tool? or biggest?" Somehow that says it all. Is the ultimate goal to win? Is that so compelling that it is worthy of any hold ("no holds barred")?

The answer from many quarters will be yes. I have seen it, reported it, and lamented it. There is a great deal of hand-wringing about lawyers and their behavior. And, to a person, they are reluctant to report the behavior of others. There is inclination instead to had wringing and complaining. The CLE program includes the point that lawyers see the lack of professionalism as the biggest challenge in the practice of law. Ruminate on that.

There are vast numbers of people who cannot afford legal services. There are congested court calendars. There are cyber miscreants engaged in a full-on assault on your privacy and success. The artificial intelligence is radically shifting the way we acquire and process information. We have law schools graduating students who progressed through multiple-guess exams. Despite these challenges, and more, number one is the lack of professionalism. If that does not alarm the reader, one perhaps wonders how.

What are the key points of the video? Watch it yourself! Now that was an unprofessional taunt. Five-yard penalty, still second down (sorry, football on the brain"). Did anyone else notice they were playing football between the commercials at the super bowl? I kid, but really, I love the commercials.

One of the CLE speakers reiterated more than once, referencing points and anecdotes "surprising, but it happens." There were references to missed deadlines, poor work, and worse. Sorry, but that "poor work" is not professionalism, it is a failure of competence. Let's quit that characterization. If a doctor leaves a sponge in your surgery site, or does not suture you up, would you say "well, that's not professional?" No, you would say that is not competent. Let's be real. Let's speak real.

Another speaker noted that "ethics is the floor" and professionalism is our aspiration. But the Court is shifting us from that. We have professionalism expectations. We have a new Code for Resolving Professionalism Referrals. This defines "unprofessional conduct." This incorporates the numbered points above. This clarifies that unprofessional conduct "may be referred to The Florida Bar for a disciplinary investigation," and perhaps "formal disciplinary process." Will we see disbarment?

One of the CLE speakers dropped a bomb that everyone should likely listen to twice. (You do not have to, another speaker repeated the spirit later). The first point was essentially "you are a lawyer 24/7." My notes on that are not so clear, but that is the point I got. The speaker suggested that you cannot "get in a fight" with the valet who parked your car. OK, really? Did that happen? Inquiring minds want to know.

The reiteration later in the program was perhaps more eloquent or maybe my notes were just clearer. This speaker said "once a lawyer, always a lawyer." Another reiterated "Professionalism is a must." The theme was recurrent. The point was inescapable. There is seeming unanimity among the presenters, the committee, and the Court. 

All that said, the world did not change on July 6, 2023 (opinion date). It did not shift seventy-five days later when the comment period concluded. It did not transform when the CLE program dropped, nor when I watched it. No, words are words. And with all due respect, we have heard much of this before. 

Today, there are likely still lawyers filing evidence they have physically altered. Not every day perhaps, but it is happening at least weekly. There are likely still lawyers attesting to patent falsity. There are probably still lawyers unilaterally scheduling discovery, failing to return calls, and berating each other in emails, texts, and more. There are likely even lawyers who file documents with factual assertions that are unsupported by any evidence. Does argument extend to fabrication? Will any of that change?

Will there be a greater willingness to report poor behavior to the Bar? Will there be more stringent recommendations of discipline by the Bar? Will the Court drive home its point in specific instances? In light of the common perception (number one, see above), perhaps some will hope so. Others will likely proceed on as if nothing has happened. They will sit through the CLE and claim their participation trophy. And the really disappointing part is that 98.43% of the lawyers that will invest 2 hours are literally in the choir already. 

But will those who watch be better attorneys? Will the behavior in the market improve? Will the avoidable disputes, name-calling, unenthusiastic, unconcerned, indifferent, and worse improve? Time will tell. Color me skeptical for today, but hopeful that this voluminous effort does in fact bear fruit. In the event it does not, public perception will erode, lawyer stress will increase, frustration will fester, and we will all return to the topic again another day when more territory has been yielded, and fewer professional lawyers remain to lament it. 

What of the Economy?

We have known for some time that the economy is being impacted by long-forgotten inflation levels. The pandemic was a time of great panic and economic turmoil. Perhaps there has not been a similar time of economic upheaval, and certainly not in living memory. In retrospect, there were so many poor decisions made regarding federal borrowing and spending. With the dollar tied to no standard, money is worth what we perceive or believe it to be worth. The more dollars there are in the economy, chasing goods and services, the higher prices will go. According to Investopedia, this is the borrowing record of recent presidents:

The borrowing during George W. Bush's administration exceeded the borrowing during the three presidential terms (20 years) prior. Not to be outdone, the overspending during the Obama administration almost doubled that of Bush (W.). Explaining the largess of either is a frustrating endeavor. The pandemic years were not better, and there is no apparent end in sight. We might discuss the pandemic, with words like unprecedented, urgent, or more. 

But nonetheless, the spending has been significant even against the backdrop of the Obama years. Despite the graphic above of 2.5 trillion during the Biden administration, Investopedia says that the debt "has grown by over $6.24 trillion since Biden took office." If that is valid, then the last eight years have exhibited over $12 trillion, and that is close to the overspending of the 52 years prior combined. 

We are paying interest on the debt. Even if we quit borrowing now, the expense of paying the interest on all that past consumption and debt would continue. The total debt of the country is unprecedented, and much of that money is running through the economy here and abroad (when you buy a product made in a foreign country, that money goes to that economy).

According to CNN, "Sixty-seven percent of employees say the cost of living is outpacing growth in their salary and wages." This is largely because money is being persistently poured into the economy through trillions of dollars in increased debt. Those dollars all chase the same supply of goods such as homes, cars, and other consumables.

Wages have been artificially increased. Instead of market forces determining how much someone earns for an hour of work, there have been various government efforts to increase the "minimum" wage of workers. As those wages increase, the cost of the goods or services that they produce will also increase. The cycle will continue. And as wonderful as the fiction of legislating success may sound, the results are sometimes unfortunate (and to those who cannot comprehend consequences, perhaps unexpected.

California legislated a new $20.00 minimum wage. This is an apparent attempt to regulate out of the impacts of prior poor regulatory decisions. Previous legislative efforts have raised rates, which raised prices, which did not result ultimately in better living for the working. Continuing to legislate ever-increasing minimum wages will continue to drive prices. The results are as elementary as they are inevitable.

KTLA reports that several businesses have elected to therefore lay off workers. Those who would like to deliver pizzas for the $16.00 per hour they were working for last year now find themselves without a job. The result of the government management of private employment relationships has not lifted those drivers, but unemployed them.

The Daily Mail says 1,200 will lose jobs. Drivers feel they have been "slapped in the face." The food companies have said they will instead use gig services like Door Dash and Uber Eats (on a recent order, I saw that add $6.00 to the price of a pizza. I will order less often as a result). Other impacts are also noted with major fast food outlets saying that menu prices will increase. 

Wages rise, prices rise. Then people who eat fast food will feel their earnings not going as far and they will seek raises, and the prices of their services will rise. The quest for a "living wage" won't be fulfilled by legislators striving to micro-manage the employment relationship. The impacts are being seen now on fast food, with consumption reactions according to the news. 

One news source recently asked "Is the $18 Big Mac combo what finally broke America?" Does anyone remember when the "minimum" wage was $7.50 and so was a combo meal? I wonder what would happen if we forced the wage upwards to $20 per hour? Everyone would make more money, and as Louis Armstrong noted "What a wonderful world it would be" (1967). Perhaps if we raise the minimum wage to $50 that would fix the "living wage" conundrum? 

Some think that the fault is on product producers. They take to the airwaves (or the web) to complain of "Shrinkflation." See Shrinkflation and SB 959 (December 2021). See a producer can maintain the price, or slow the increase, by using less inputs. That means robots instead of humans in some instances, but could mean less product in the bag or cheaper ingredients in the product. That is the "shrink." The shrink is a reaction to economic reality and it does impact the price we pay. Is it as insidious as injecting trillions of dollars into the economy? Likely it pales by comparison, but it is easier to point a finger at in distraction and denial. 

According to Business Insider, people have reacted to the insidious lockdown mentality of the pandemic. The government's reaction to SARS-CoV-2 destroyed much of the American economy directly. But it also changed the way people think and feel about their existence. The BI article notes that people "prefer to spend their weekends quietly at home over socializing." The impact is personal, but it is also economic. Those people staying home are not out dropping $15.00 on a cocktail and tipping their server. For that matter, they are not dropping $18.00 on a Big Burger Combo nor paying $6.00 to have it delivered to their home. 

One quoted in the BI story notes

"If I leave my house I spend at least 100 dollars,"

Another that

"Everything is so expensive it's not fun anymore."

The cost is not because of some unseen and unforgivable supervillain (OK, perhaps there are some villains out there). The cost of going out is increasing because the cost of wages is increasing. The wages at the restaurant, at the trucking company that brings things there, at the brewery that makes/bottles the beer, at the trucking company that brings supplies to the brewery, there is a cascading impact in the economy of every increase in wages. Wages are a part of every element and segment of the product and its consumption.

And this is not an American thing in isolation. Last year, the Guardian brought us news (not news really, we all knew already) that "the cost of living crisis is destroying young people’s social lives." The young are not headed out to socialize in the United Kingdom because of the cost of living. This failure of socialization has an economic cost. But moreso a personal cost. What are the impacts on mental health? What are the detriments to our collaboration, collegiality, and cooperation from isolation and introversion? The young likely want to meet for coffee and cannot afford a cup. 

The impact of that is fewer customers. Fewer consumers will drive down the demand for goods and services. That is less sales by the business. But, with government-mandated wages, the pay at restaurants and similar establishments will (can) not respond by similarly decreasing. The only way for business to respond to the decreased demand and thus decreased business will be to lay off some portion of the workforce to cut costs. People will lose jobs. Artificially force up particular costs and the market will react.

There are discussions in the news about human reactions to stress and challenges. There are natural human emotions and COVID has impacted people, some deeply. The overall impact of that virus has been felt personally and variously. But in addition to the great personal loss experienced by many who lost loved ones, the economic loss persists. The emotional impact of the virus that was loosed upon us resultingly continues and is pernicious. 

That emotional evolution will impact the employer/employee relationship for years to come, as will the ongoing effort to legislate relationships and myths such as the "living wage." The world has witnessed multiple attempts at controlled economies. In the end, those have brought societal ruin and ultimately failure. Socialism, communism, and variants of each have failed consistently and spectacularly. What controlled economy has demonstrated long-term success?

In America, we have seen some attempts at central control, but moderated by largely free-market, laissez-faire evolution and freedom. Government has been able to periodically tweak without destroying. Workers' compensation, unemployment compensation, Occupational Safety and Health, are all good tweak examples. But, there will be a line somewhere that cannot be crossed. 

As the nation adapts to the "new normal," and the evolution of workplace, retailer, and wage earner continues, the great engine of American economics must be allowed to rev. People must be allowed to thrive in their production, contribution, and consumption. Value must be generated, products and services must attract consumers, and people must be confident in their existence and economic desires. It is the secret of our success and our only hope for tomorrow.

Ambition and optimism built this country. The expectations of today are in need of resuscitation and rejuvenation. People must be able to see their futures as attractive and motivating. The young must perceive opportunity and progress. The answer is not in dumping billion after billion (trillion?) of debt into consumer's hands. If it were, the government could borrow another $2 trillion and cancel all the credit card debt that has been unwisely accumulated). If we relieve the people of all consequences related to their decisions, will that lead to better decisions in the future?

The answer is in opportunity, ambition, and the American dream. Young people must come to realize that no one had it easy. The challenges have always existed. A poster on LinkedIn recently overviewed what the people born in 1900 faced. It is a real eye-opener. 

For example, here is what those folks faced on various birthdays during their lives:

14 - WWI

18 - Still WWI

25 - the Great Depression

39 - WWII

45 - Still WWII

52 - Korean War

64 - Vietnam War

As the poster so eloquently put it, "How do you survive all of that? A child in 1985 didn’t think their 85-year-old grandparent understood how hard school was." Yes, I was young and naive once. I doubted and questioned the "old folks." But look at what they lived through. That person born in 1900 evolved from horseback to Tesla; from telegraph to iPhone; from the invention of the airplane to the moon; and from the Second Industrial Revolution to artificial intelligence. 

And, in truth, they did complain from time to time. I heard them. But they persevered, adapted, and gave us the world of today. A world full of advantages, technologies, and opportunities.

The fact is, those challenges were overcome by legions of ambitious and motivated people who clawed their way through difficulties and challenges. They found frustration, discrimination, and unfairness. They fought through it, and they (we) made great strides. It will not be easy, but today's young will eventually embrace it. I believe they will grow, evolve, and thrive. But it will not be because we deride or belittle them, it will be because we enable and encourage them. It will not be because we collectively borrow more money, flood more markets, or inflate more prices. It will be because we lead.

Why have we never heard of this?

Why have we never heard of this? I heard that in early February, and the question was a bit disheartening. More troubling though, I was without a sound answer. In response, I could muster only conjecture, discomfiture, and perhaps even regret. Not regret in facing the question, but perhaps in the absence of any rational or logical answer.

From another perspective, there’s plenty of room to complain about generations. The old one complains about the new, the new about the old, and in the end, it’s likely largely misunderstanding or misinterpretation. It seems that in our generational cycles, there is less friction between the adjacent generations. But the older and the younger seem persistently inclined toward misapprehension.

In that regard and others, the only way that we can attack any form of preconception or bias is through interpersonal relationships and experience. We must grasp the disconnect(s) and appreciate that while generations exist, they are made up of people. We must push aside the bias of aggregating "them" or "those" based on age, experience, or our perceptions. Because "them" are not a conglomerate and our efforts must be with each.

I got the opportunity for just that, with the next generation of law students at the University of Florida. One Monday morning, I hit the highway around 3 AM and drove to Gainesville. The Workers' Compensation Section of The Florida Bar, under the leadership of Paolo Longo, Has made outreach a special effort over the last 14 months. I think many had their doubts about the magnitude of this effort. See Let's Get Together (May 2023).

We have seen the Section host meet and greets in Orlando, Jacksonville, Ft. Myers, Tampa, and Tallahassee. We will be in Miami (03.28.24) and West Palm Beach (03.29.24) next. The leadership of the Section will change in June, and in less than 18 months, we will have been live in all the regions of Florida, with the sole exception of here in the state capital, Paradise (well, Paradise was the capital once, or one of them).

I am gobsmacked at the dedication to collegiality and professionalism exhibited by bar leadership, section members, Judges, mediators, and more.

As an outgrowth of the recognition that recruiting lawyers has been challenging, someone said "Why not talk with law students?" The Section engaged, first to be at St. Thomas. A scheduling glitch put that one off, and the first was at Florida State. Thirty students there met a panel of speakers last year. More recently it was UF, and Ave Maria is scheduled.

I shared the panel stage in Gainesville with Stuart Suskin, who did not come to Florida with Ponce de Leon (as has been rumored). No Stuart did not sail with Ponce, but in fairness, he remembers speaking to him often. Also present was Mr. Longo, on behalf of the section, Mr. Hesser, on behalf of injured workers, and Sean O'Connor behalf of the employer carrier practice. Judge Sancerni, a product of the UF experience, made the trip from Orlando. It was a well-rounded set of perspectives on why the practice of Worker’s Compensation law is an attractive avenue for new lawyers.

My readers won’t find the talking points new or surprising. (1) Workers comp affords a great opportunity to practice law as opposed to supporting others who do. (2) There’s a great deal of exposure to legal and medical challenges, that will both stimulate an attorney’s mind and afford ample growth opportunities. (3) The medical puzzles are the beginning, there are a raft of complexities and intricacies here that periodically need analysis, explanation, and expertise. (4) Florida workers' compensation offers unparalleled, collegiality, and mentor opportunities, which are simply unheard of in other practice areas. (5) Lawyers are either seeking and hiring new practitioners and Clerks, or they know someone who is.

Did some of the students show up just for the free Chick-fil-A? Undoubtedly. I often lament my mandated avoidance of fast food. While I can usually drive past it, life is more difficult when someone brings those smells into the room. Sure, the food is a draw. I might like it to be about the chicken, but somehow that place's draw is the pasta. Who knew?

Whatever drew them, these students were engaged and engaging. They had the opportunity to scoff or challenge our comp references. There could have been doubts or incredulity. But, in the end, there was the "why have we never heard of this." The answer to that one is pretty easy actually.

We are failing. No, not economically, or functionally, or professionally. But we are failing in that the next generation has never heard of us. We can all say it was the same for us. To a person, we all fell into this community by accident. Once here, we all seem to have found opportunities, mentors, and success. But we did not set out to come here, and upon arrival, we were likely all a bit disoriented and challenged. Why did no one teach us about workers' compensation in college, law school, or beyond?

Yes, why did no one come to seek us? Turn that about. Why are you not out seeking them?

Each of us, at some point, could validly ask "Why have we never heard of this?" One of the panelists responded we are the "best-kept secret." There were humorous retorts and conjectures. But in the end, we are failing. That other generations before us fell short and the community nonetheless survived (thrived) is no excuse or explanation. That we are now approaching our Golden Years, and the unfamiliarity remains is on us. Gone are the days when this community can thrive on the accident of great youth just showing up. Now come the days that youth must be informed, sought, recruited, and nurtured.

We stand on the edge of a precipice. See The Donut Hole (February 2023). In the J.R.R. Tolkien masterwork The Lord of the Rings, a wise advisor warns the intrepid adventurer "Your Quest stands upon the edge of a knife. Stray but a little and it will fail, to the ruin of all." So it is here, and so it is now. Not for lawyers alone, though that is an area in which I can readily effect information and perhaps make headway. But the need for young people in this community crosses all professional boundaries.

Young people are needed in claims management, risk management, programming, accounting, nursing, doctoring, and so much more.

"Why have we never heard of this?"

That is on us folks. What are you doing to awaken those around you to the truth of the potential in this billion-dollar, life-restoring community? Are you finding ways to speak to the younger generations? Are you even looking?

The Grand Jury Reports

For over a year, the 22nd Statewide Grand Jury has been looking into the potential of "crimes and wrongdoing committed against Floridians related to the COVID-19 vaccine." There has been a nice post-COVID period in the last two years. We have seen the world come back together, with significant normalcy.

Well, significant. I still see people wearing masks. I still see the occasional social distancer. I even saw a shopper recently in the store wearing rubber gloves. There is no way to know what people are going through, what their comorbidities may be, and what their logic or reason(s) may be. In fairness, I never believed in masks, one-way store aisles, plexiglass, or the rest. See The Unmasked Man (September 2021). 

Recently, masking is back in the news. Your decision to mask or not is not protected by the First Amendment. U.S. News reports on a recent court decision to that end. The government is well within its authority to tell you what you will wear:

“A question shadowing suits such as these is whether there is a First Amendment right to refuse to wear a protective mask as required by valid health and safety orders put in place during a recognized public health emergency. Like all courts to address this issue, we conclude there is not,”

The corollary seems as likely - that the government can tell you what you cannot wear. There is careful phrasing here. It need not require a "valid" health emergency or crisis, merely a "valid health and safety order()." Regardless of the science or methodology, the influence or the consensus, if your government issues a valid order, the result is that you will comply.

The government is very powerful and exercises enormous reach. See Could the Federal Government Meddle in Comp (March 2016). The government can undoubtedly tell you what you can grow or even must grow in your garden. It can also undoubtedly force you to make purchases against your will. Somehow in this free country, the rights of the people are subverted at times to government constraint. Government need not prove its constraint is rational, only that it is valid. 

I bought into the vaccine. Notice the Grand Jury is focused specifically on "nonpharmaceutical interventions (NPIs)," but there is mention of "related to the COVID-19 vaccine." I know many who hate the vaccine and several who are "black helicopters" over the vaccine (no, the NFL is not conspiring with the singer either - cannot name the singer, that would be considered by some as "stalking"; well, perhaps at least in some small minds). 

Many are alternatively in the mandate crowd. I went to conferences during the pandemic at which organizers asked attendees to self-identify as non-vaccinated (they wanted people to sew red "A" on their shirts, I jest; please don't email me Ms. Actress). Interestingly, some of the same people who favored forcing vaccines on others for the common good are also in the "my body my choice" group on other issues. 

That has been worthy of some thought throughout. But, right or wrong, I was inoculated. I am in a seemingly small club of people who have never had COVID. Somehow, I have been very lucky or very right. 

All that said, there is a great deal of skepticism about the manner and extent of our collective and individual reactions to SARS-CoV-2 and COVID-19. The near-total economic shutdowns, the distancing, the masking, and more have generated strong feelings and opinions. The economic impacts are undeniable, and the volume of fraud and waste involved is astounding ("billions . . . stolen or wasted"). There is talk now of ending some programs. Some likely thought that the COVID aid programs ended back when the pandemic did? Not so. 

The Grand Jury is making progress. However, there has been some reluctance by various organizations. Apparently, the following have refused to provide testimony: "the Centers for Disease Control (CDC), the Food & Drug Administration (FDA) and the U.S. Army." It is not clear why these agencies would be reluctant to provide documentation of the extent, timing, and purpose of their respective involvements and efforts. It might seem that more information is usually better. If you think or fear someone is misstating the facts, perhaps show up and provide your facts as a counterpoint? 

The first report of the Grand Jury has been released. It notes that there were failings in judgment and the engagement of "nonpharmaceutical interventions (NPIs)." The report concludes that available information was not heeded or leveraged in the response to the SARS-CoV-2. Specifically, the report mentions information "ignored or even attacked." This was perhaps the fault of groupthink, consensus, and fear. When SARS-CoV-2 landed, no one "knew" anything. Even those funding high-level research were essentially guessing back in 2020. Educated guesses, certainly, but guesses nonetheless. 

There is criticism of "lockdowns." The report notes that where lockdowns were employed there remained "excess mortality," and ongoing risk. The broad prophylactic of "lockdowns were not a good trade." This likely refers to the societal, economic, and production detriments of isolation and immobilization. Perhaps it refers also to the psychological impacts foist cavalierly upon the young, old, and vulnerable?

There is criticism of masking. This is perhaps the most specific and critical mentioned. The report concludes "we have never had sound evidence of their effectiveness against SARS-CoV-2 transmission” and “there have always been legitimate questions around the impracticality of individual adherence to mask recommendations." The report alleges "failure" in the communications about masks and the purported benefits. Undoubtedly, masking had emotional benefits. We wanted to be protected, proactive, and engaged. With masks, we could either wear them or complain about them, and either way we had some perception of being involved and responding. 

There is Grand Jury criticism of record keeping, particularly as to the measure of "hospitalization" necessity. It appears that those admitted for hospital care for COVID were statistically co-mingled with those admitted for treatment of other maladies, who also had "incidental SARS-CoV-2 infection." The Grand Jury expresses some belief that medical statistics may be characterized as "inflated to some degree." Why? Was there any economic benefit to labeling a patient as "COVID?" Was there medical benefit in precautions (keeping the infected consolidated to prevent exposure and spread?) There is much to consider. 

The overall tenor of the report is critical of the government's response to this health threat. It accuses of "panic, hubris, ineptitude or some unfortunate combination of the three," contributing to the response and its efficacy. It concludes that "whatever benefits inured from these mandates, they were not worth the price.” That is fairly frank. 

The efforts continue. It is likely an unimaginable volume of data and retrospection. And, with each passing day, it seems, another scientific study is published as to this viral threat and the reactions to it. I predicted back in 2020 that information was scarce, and conjecture and consensus were prevalent. I suggested that with time more science would come to bear. See Nature.com for a partial list.

In the end, will there be repercussions? Time will tell. In all, however, it is interesting to observe the retrospection and analysis. Did we respond well to SARS-CoV-2? That is for the observer. Could we have responded better?

Safety and Technology

I would not have believed it, had it not been in the news. Of course, you can believe anything you read in the news. But, whether you believe it or not, the press reports there were two people recently identified as not having a cell phone. In the twenty-first century, I really thought everyone over the age of two had a pocket computer (yes, you can also make a phone call with these little computers).

The first story comes from KCRA channel 3, and introduces us to Monica Laso. She was skiing with her friends in Tahoe. In fairness, Tahoe is not heaven. But in reality, it is pretty darn close. Ms. Laso picked a tremendous location for a ski outing. The food, the scenery, the people, all are outstanding. Ms. Laso rode the gondola up the hill and concluded that she was too tired after all. So instead of skiing back down (some outlets have said snowboard, tom a toe, tom ah toe), she got back on the gondola to ride back down. She says that an employee on the slopes knew of her decision.

Well, "two minutes later," the gondola system shut down for the night. And there sat Ms. Laso hanging from a cable in a little glass room. In the dark, in the cold, she found herself stranded. And, much like the intrepid Gilligan of old, she found herself with:

"No phone, no lights, no motor car, Not a single luxury, Like Robinson Crusoe, It's primitive as can be"

As I said, I thought everyone had a cell phone. But, with no light to send a signal and no phone to call for help, Ms. Laso spent the night screaming at the slope workers below her. About 15 hours later, the slope reopened, the lift restarted, and she was conveyed safely to the foot of the hill. She had been missed by friends, reported as missing, and literally "left hanging." She was evaluated and apparently declined medical care. Hoarse, and likely exhausted, but safe.

The company that operates the gondola seems to feel something went wrong. in this situation. Might there be sensors in such devices to detect people? 

Around the same date, 200 miles away in Alameda County, California, another woman had an adventure, according to Daily Express. She too was stranded "for 15 hours." She did not walk out like Ms. Laso, but was "hoist(ed) . . to safety" by helicopter after being "stranded on the bottom of her upturned car." She had "attempted to drive across a flooded road." The water was more than she expected, her car overturned, and she was lucky to both get out and find refuge on the overturned car.

The news reports that "the unnamed woman underestimated how deep the water was." She took a risk, and "when her car turned over," she lost her cell phone in the excitement. Thus, there she found herself.

There are those out there (Statler and Waldorf) complaining this is a blog about workers' compensation. That is true. And the foundation of workers' compensation is work. Fundamental to work, and the avoidance of workers' compensation, is safety. There are distinctions between the two stories, though they also can be viewed in terms of both inference and corollary.

First, how did the two get in danger? One made a sound judgment (too tired to ski) and sought a safe path out. She did so with the help of local officials (the company staff). Despite those sound actions and decisions, she was left stranded. The second woman knowingly drove into moving water on a flooded road ("Danger, Will Robinson"; Lost in Space, 1965). Everyone knows you do not drive into moving water, and make assumptions about roads you cannot see. Those poor decisions resulted in her stranding. In either instance decisions have consequences. The time to think those through is before the consequences.

But, this reminds us that in the workplace it does not matter. Whether the employee makes a sound decision or a poor one, workplace injuries are usually covered. The idea of fault is largely avoided (unless the employer's fault is beyond a certain pale, is "nearly intentional," in which case civil damages in tort may be available).  

Second, how did they get out? Ms. Laso simply waited it out. She was lucky that the slopes opened the next day. The motorist had to be winched out, after someone happened to, luckily, spot her. Unlike either lady, the camper who spotted the woman on the car had a cell phone. This reminds us that some challenges can be more easily extricated than others, but you seldom get to choose. When you make decisions, do you contemplate the potential for unexpected or untoward outcomes? Do you consider your flexibility, adaptability, and resiliency?

And what of our ability to be the solution. In these stories were opportunities for others to positively impact the one in need. The slope workers might well have looked up. Or the one that put her on the gondola might have called the base end and let them know of a passenger. How did those employees from the top of the slope get to the bottom after their shift? Like the camper with the cell phone in the second story, any number of people might have aided Ms. Laso. 

Third, what about the modern convenience of a cell phone? Well, the lady on the car had hers but lost it in the midst of the car turning over. Even if she had kept it, the odds are the water would have disabled it as she swam out of the car. But Ms. Laso is the one person in America who does not have a cell phone (or she made a conscious decision not to carry it or forgot it that night). In any of these, we see that technology is grand, But, we also see that technology can fail us through inadvertence, incidence, or mistake. Technology is great, but it is no more infallible than we are. As AI and robotics progress, we have to remember that our brains and foresight will still be required for workplace safety. 

In the end, the best safety protections we have are likely human. What if Ms. Laso's friends had committed to meet her at the bottom of the ski run after that run? Upon their arrival, they would have found (1) no Ms. Laso, and (2) an immobile lift. They might have raised a louder and more immediate missing person complaint right then. What if the car driver had noted the recent weather, and looped in a friend or family with a call? What if someone had known then of a potential for issue, and to anticipate a follow-up ("I arrived safely"). In either event, a tough situation might have been much shorter if others had been informed. Is it any different when difficult tasks are engaged at work?

In the end, despite all we might do with technology, it is the human element that will most effectively prevent accidents and injuries. There is value in both looking out for the coworker and in being willing to facilitate your coworker looking out for you. And our own awareness about our personal safety is critical. The more that we focus on and prioritize our personal safety, the more likely accidents and injuries will be avoided. Through decreased accident frequency, we can best minimize the need for and impact of workers' compensation.

Its the Appearance

According to Oxford Reference, it was Walter Reuther who coined the phrase:

"If it looks like a duck, walks like a duck and quacks like a duck, then it just may be a duck."

Similarly, at some point, someone said "Sometimes a cigar is just a cigar." Many attribute to Freud, but there are doubters and even critics. The point of the phrase is explained to focus on analysis and consideration: "the importance of considering both the conscious and the unconscious aims of an action."

This blog is often about workers' compensation, and there are those who strive to hold me to that. But, it is often about the challenges of judging and the many issues that can accompany the task. For some reason, the news has recently been a verdant ground of judicial ethics stories. See Arrested and Charged (January 2024) and Asleep at the Switch (January 2024).

This weeks brings to focus two intersecting thoughts about judicial behavior stemming from accusations against a judge in the great state of Nevada. The American Bar Association (a private, voluntary organization to which some lawyers belong) notes Judge's hot tub social media post makes waves with judicial conduct commission; she quotes Cardi B in response.

At the outset, most judges would be well served to avoid the perils of social media. See Lyric Choices (July 2023). There is bad behavior, poor appearances, then there is the stupidity of recording your behavior and advertising it voluntarily to the whole world. See, in the world of judging, behavior still matters. But the appearance is as relevant, and much harder.

Judge Erika Ballou is reportedly charged with two events. The first involves her posting pictures of herself with two friends in a hot tub. The second involves her social media post about attendance at a concert. Neither of those seems so troublesome on the face of things. But, the Code of Judicial Conduct itself is not so much about the surface as it is the substance.

In 2022, the judge took a selfie showing the judge and some public defenders together in the hot tub. The caption was descriptive and classless, but let's skip over that. Click on the link to ABA is "know you must." The problem with the hot tub shot is likely tied to the troublesome caption, but as much to the fact that the judge is a former public defender and is posing with public defenders. The implication is that she is intimate friends with these two, who are on one side of the disputes that she adjudicates. That creates two potential Canon One problems (Rule 1.2 in Nevada).

"A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary"

Does the picture of a judge with two public defenders in a hot tub with a risque caption "promote public confidence in the independence, integrity," of the judiciary? But, it certainly creates a Canon One problem (Rule 1.2 in Nevada):

"and shall avoid impropriety and the appearance of impropriety."

Cambridge Dictionary says impropriety means

"behavior that is dishonest, socially unacceptable, or unsuitable for a particular situation."

Ok, classless picture caption? check. Appearing in social setting, most relaxed social setting, with two members of an office that regularly appear in court before you? check. Problem? check.

Before this little picadillo, back in 2021, the judge complained on Instagram about the tardiness of a musical act. Not a problem. Complaining about the fact the judge had a busy schedule the next day? Still not a problem. Creating a hashtag for the post to suggest that the judge's reaction will therefore be to make expeditious and rote (likely inappropriately blanket) decisions in difficult cases? Priceless Inappropriate. (#VacateTheShitOuttaOutofCustodyCases).

The reader will easily see a similar problem here with the "public confidence." Some might additionally see a Rule 2.2 problem: "A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially." When a judge announces ahead of time how she or he might rule, might someone feel that there is a lack of "fair(ness) and impartiality?"

Might a judge be perceived as having a Rule 2.3 problem, deciding cases "without bias or prejudice?" Might one see an issue of Rule 2.5: "A judge shall perform judicial and administrative duties competently and diligently." Some might question the competence of a judge that prejudged and decides to just "#vacatetheshit" as somewhat less than diligent or competent.

In the judge's defense, she became a judge only three years ago, 2021. Certainly, there may be a learning curve for any new job. Perhaps there is an inclination for a bit of leeway, some latitude? But, one might note that the Code is fairly simple reading and these examples are not really close calls, objectively or subjectively.

On the side of punishment, an "aggravating factor" perhaps, the judge had a previous run-in with the Code of Judicial Conduct for her racially charged statements against the police (the ones that make the arrests, for which the prosecutors prosecute, and for which her hot tub buddies defend). The judge allegedly made disparaging remarks about "the cops," in a generalized and disrespectful manner. The news is not clear, but it appears she was not punished or counseled for that previous inappropriateness. Perhaps, the failure of consequence in one instance led to or facilitated the hot tub debacle?

For now, it appears, the judge is not responding publicly (the ABA Journal notes its contacts were not responded to). But, perhaps she will respond on Instagram with some additional wit and wisdom? Perhaps she can counter the reality of the situations, and the existence of any actual bias, doubts about confidence, and partiality. Her words may be powerful in explaining how the Instagram post and the hot tub photo are not, objectively, troublesome. 

But, the Code is much broader than actuality and reality. To be blunt, it is the "Appearance":

"and shall avoid impropriety and the appearance of impropriety."

Despite any actuality, practicality, or demonstrability, the judge faces serious issues with appearance(s). And the fact that many news outlets find this newsworthy and salacious perhaps somewhat contributes to the probable perception of an "appearance." In all, across the world wide web, it may be fair to say that Judge Ballou has brought untoward, unfortunate, and inappropriate attention to herself, the bench, and Nevada. According to News8, she is pleased that she is getting more social media attention: "I started speakin’ my mind and tripled my views.”

But let's face it folks, anyone that wants to be can become Instagram famous. It does not take skill, intellect, or cleverness. Any fool willing to debase themselves can easily go viral. But, is viral for viral's sake worthwhile? Is debased for the sake of popularity appropriate?

This set of charges may be critical. Judge Ballou may look back on this with different feelings in retrospect. As to the potentials, some might suggest merit in Cardi B's thought: "Yeah, it's not a threat / It's a warnin'."

"If it looks like a duck problem, walks like a duck problem and quacks like a duck problem, then it just may be a duck problem." This will be intriguing to watch evolve.

Arrested and Charged

The Alabama Daily News brings word of an Alabama judge who has been "arrested (and) charged with using office for personal gain. I cringe at such headlines. However, in any example of alleged wrongdoing or misfeasance, there are potentials for us all to learn a bit or be reminded of the lines. And, coincidentally, the story is all about "self," Judge Self, that is.

This judge presides in Lauderdale County, Alabama. That is about as far north as you can go and still be in Alabama. The judge was elected in 2009 and as part of his job duties, he was apparently responsible for maintaining some financial accounts. Prosecutors allege that he spent some of that money on self, for "a sofa, alcoholic beverages and eyeglasses" as well as for "a variety of vacations." There are 16 counts in all. On top of the stack is an additional charge of "making a false representation to" the accountants. AL.com says that there is an eighteenth charge for "perjury."

The judge "faces a maximum penalty of 20 years of imprisonment and a $30,000 fine for each of the sixteen B felony charges for violating the ethics law. He faces up to 10 years of imprisonment and a $15,000 fine for making a false statement." I am not so good with math, but that sounds like a potential of 330 years in jail and approximately a half-million dollars in fines. I am dubious that will be the outcome, but it is nonetheless a scary prospect. And, that may not be all the charges, see below.

The judge is said to have traveled "to Montana, a beach trip, a cycling trip across three states and a trip to St. Ignace, Michigan" at state expense. He reportedly says that "proper bookkeeping during COVID was really virtually non-existent.” He conceded that "We didn’t follow acceptable accounting principles, primarily because there’s no one trained or experienced in those principles."

I am curious how the "we did not have an accountant" defense plays out. I have seen some intriguing books from time to time as I have volunteered for various organizations. I have even heard the "we didn't know better" a time or two. But, will this situation over "$50,000 of public funds" be just some accounting technicalities?

One of the counts alleges he spent some of the funds "to employ his son," but the news offers no detail on what purpose or project for which that was intended. And, in addition to the trips noted above, "the indictment also charges him with paying himself out of public funds for travel to events he did not attend in Reno, Nevada; Duck Key, Florida; Mackinac Island, Michigan; and Alabama." So, no travel, but claiming reimbursement may be an issue.

It is worth noting that much of the history described occurred during the challenges of the recent pandemic ("April 2020 through February 2023," according to AL.com. If there is someone out there who did not find that time stressful and even oppressive in some regard, write me. I would love to hear that perspective of a carefree experience. And, perhaps it was that pandemic that kept the accountant or bookkeeper from the process or diminished focus. That will all likely be examined as this proceeds.

It is also worth noting that the judge "voluntarily repaid the funds." That is a good sign. Furthermore, AL.com reports that the judges in that area have jointly "implemented improvements to the accounting and recordkeeping practices." And, of course, the pandemic is over.

In the event that there was no criminality here, the charges will diminish or dissolve. The fact is that not all accused are convicted in this world. And, all are considered innocent until proven guilty. Indictment is not a positive event, but it is also not a conviction.

If the criminal issues are resolved, one wonders if the judge might still face challenges from the state courts. Alabama has a Code of Judicial Conduct, like most states. Similar to the others, it includes canons originally suggested by the ABA, such as:

• Canon 1. A judge should uphold the integrity and independence of the judiciary.
• Canon 2. A judge should avoid impropriety and the appearance of impropriety in all his activities.
• Canon 3. A judge should perform the duties of his office impartially and diligently.
• Canon 4. A judge may engage in activities to improve the law, the legal system, and the administration of justice.
• Canon 5. A judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties.

Any of those might be the subject of discussion when the performance of official duties is the topic. In short, it is possible that the criminal charges are the beginning but perhaps not the end.

In any event, there are lessons here. I have complained from time to time about "the accountants." They seem to always have a reason I cannot do this, or have to do that. They are both gatekeepers and rule enforcers. As Joe Walsh noted so long ago, "I can't complain but sometimes I still do" (Life's Been Good, Old Grey Whistle Test, Asylum, 1978). Yes, I do. It is frustrating to follow rules. But "I still do." The rules are there for a reason, usually because someone along the line was not very careful or attentive and did something that got attention. They got in trouble and the rest of us got more rules. So, lesson one is to have experts on your team.

The second lesson is that we all have to know when we are in unfamiliar territory. If you are not familiar and comfortable then you should seek assistance. If there is no accountant down the hall, perhaps you should make a call? Perhaps in the world of high finance ignorance is bliss, but this instance reminds us that even if the judge's actions are all deemed excusable and innocent, his name has been in the news (and social media) and he has expended time and effort in his defense. Oh, and he has hired attorneys to address the charges against him. In all, a stressful and expensive experience even if it turns out the judge acted appropriately and legally.

As a side note, one might wonder if the county pays for "errors and omissions" coverage? Investopedia explains 

"Errors and omissions (E&O) insurance is a type of professional liability insurance that protects companies, their workers, and other professionals against claims of inadequate work or negligent actions."

That E&O concept is surprisingly a new one to some involved in charitable work and responsibilities. When you take on responsibility, as a director, officer, or in this instance judge, would you want some assurance of the benefits of coverage? Such a policy might pay the lawyers to defend any claim made against you, and might be responsible for the loss in the event someone does not pay the money back.

In all, this example is an object lesson. It supports having knowledge, respecting the need for the expertise of others, and perhaps being more patient with the constriction of rules. The situation in Alabama will undoubtedly play out in the news in months to come. It is intriguing and educational.